IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27th DAY OF AUGUST, 2019 PRESENT
THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND
THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT PETITION No.36113 OF 2019 (GM-MM-S)
BETWEEN:
T. N. CHANDRASHEKAR, AGED ABOUT 37 YEARS, S/O. T. M. NARAYANAGOWDA, NO.3344, M BLOCK, 6TH MAIN, KANAKADASANAGAR, DATTAGALLI, MYSORE - 560037.
(BY SRI. K SUMAN, ADVOCATE) ... PETITIONER
AND:
1. STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, COMMERCE AND INDUSTRIES DEPARTMENT (MSME AND MINES), VIKASA SOUDHA, BANGALORE - 560 001.
2. DIRECTOR/COMMISSIONER DEPARTMENT OF MINES & GEOLOGY, KHANIJA BHAVAN, RC ROAD, BANGALORE – 560 001.
3. SENIOR GEOLOGIST, DEPARTMENT OF MINES & GEOLOGY, OFFICE OF THE SENIOR GEOLOGIST, VIDYANAGAR 1ST CROSS, MANDYA-571401. ... RESPONDENTS (BY SRI. V.G. BHANU PRAKASH, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 5TH JULY 2019 ISSUED BY R-3 DETERMINING THE LEASE OF THE PETITIONER IN REALTION TO 1 ACRES OF LAND IN SY.NO.75 OF TIRUGANAHALLI, NAGAMANGALA TALUK, MANDYA DISTRICT (ANNEXURE-A) AS BEING VIOLATIVE OF ARTICLES 14, 19(1)(g) AND 21 OF THE CONSTITUTION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:-
ORDER
Heard the learned counsel appearing for the petitioner and the learned Additional Government Advocate appearing for the respondents.
2. The petition is taken up for hearing.
3. By this petition under Article 226 of the Constitution of India, the petitioner has taken an exception to the order dated 5th July, 2019 passed by the third respondent, by which, quarrying lease granted to the petitioner has been determined. The impugned order records that in view of three violations of sub-rule(4) of Rule 44 of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘the said Rules’), quarrying lease granted to the petitioner has been determined.
4. The submission of the learned counsel appearing for the petitioner is that assuming the power under sub-rule(4) of Rule 44 of the said Rules for determination of the lease is rightly invoked, proviso to sub-rule(4) of Rule 44 mandates that an order of determination of lease shall not be made without giving the lessee, an opportunity of being heard. The submission of the learned counsel appearing for the petitioner is that no opportunity of being heard have been granted to the petitioner before passing the order, which is impugned in the writ petition.
5. The learned Additional Government Advocate submits that there is also a power to determine the lease under the proviso to sub-rule(3) of Rule 6 of the said Rules and the proviso does not contemplate of giving an opportunity of being heard in person especially when a show cause notice have been served to the petitioner.
6. We have carefully considered the submissions.
Sub-rule(3) of Rule 6 of the said Rules, reads thus:-
“6. General conditions of quarrying lease and licence. –
(1) xxxxxxx (2) xxxxxx (3) In case of breach by the lessee or licensee or his transferee or assignees of any of the conditions specified in these rules or in the quarrying lease deed or licence, the Competent Authority shall require by notice in writing the lessee or licencee to remedy the breach within thirty days from the date of notice and if the breach is not remedied within such period the Competent Authority may levy a fine not exceeding [ten thousand rupees] in the case of specified minor minerals [and the Competent Authority may without prejudice to any other action that may be taken against such lessee, licensee, transferee or assignee determine the lease or licence after providing an opportunity of being heard].
[Provided that if a lease or license holder has been imposed with a fine under the above rule for three times during the lease period, the lease or license shall be terminated]”.
Sub-rule(4) of Rule 44 reads thus:-
“ 44. Offences. – (1) xxxxx (2) xxxxxxxx (3) xxxxxxxx (4) If any lessee or licensee or his managers, employees, contractors, consumers or buyers dispatch or transport mineral without valid permit, such lessee or licensee shall be liable to pay a penalty equal to 15 times of royalty of mineral so dispatched or transported and if such dispatch or transport without valid permit happens for any subsequent times of such levy of penalty, then he shall be liable for additional levy of penalty equal to 15 times of royalty for mineral so dispatched or transported for the subsequent time also and the Competent Authority shall also order for determination of lease or licence.
Provided that, no such order of determination shall be made with giving the lessee or licensee an opportunity being heard”.
7. For attracting the proviso to sub-rule(3) of Rule 6, it is necessary to show that fine has been imposed on the lessee in accordance with sub-rule(3) of Rule 6 for three times during the lease period.
8. Perusal of the impugned order does not show that there is a specific finding recorded that the fine under sub-
rule(3) of Rule 6 was imposed three times during the lease period. In fact, that is the condition precedent for passing an order of determination of lease under the proviso to sub-rule (3) of Rule 6. There cannot be determination of lease unless the said condition is satisfied. Therefore, the impugned order cannot be said to be an order under the proviso to sub-rule (3) of Rule 6. The impugned order records that it is passed in exercise of the power under sub-rule (4) of Rule 44. If determination is under sub-rule(4) of Rule 44, the law mandates that an opportunity of personal hearing should be granted to the petitioner, which in the facts of the case has not been done.
9. Accordingly, the impugned order cannot be sustained and we pass the following order:-
(i) The impugned order dated 05th July, 2019 passed by the third respondent is hereby quashed and set aside;
(ii) The third respondent shall issue a fresh show cause notice to the petitioner within a period of four weeks from today;
(iii) After granting an opportunity of filing a reply and after granting an opportunity of being heard to the petitioner, a fresh order shall be passed by the concerned authority within a period of three months from today.
(iv) We make it clear that we have not made any adjudication on the question, whether any breaches have been committed by the petitioner (v) Accordingly, the writ petition is partly allowed in above terms.
Sd/- CHIEF JUSTICE
Sd/- JUDGE
Srl.