IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT PETITION NO.16115 OF 2019 (GM-MM-S) BETWEEN:
SMT. VOLGA E CROSTA AGED ABOUT 75 YEARS W/O LATE ELIAS CROSTA "KIROMAN COTTAGE" KANNADA KUDRU HEMMADI POST KUNDAPURA TALUK UDUPI DISTRICT - 576 230.
(BY SHRI K. PRASAD HEGDE, ADVOCATE FOR SHRI JAYANTHA POOJARY, ADVOCATE) AND:
1. STATE OF KARNATAKA DEPARTMENT OF MINES AND GEOLOGY NO.49, KHANIJA BHAVAN RACE COURSE ROAD BENGALURU - 560 001 REPRESENTED BY ITS SECRETARY 2. THE SENIOR GEOLOGIST MINES & GEOLOGY DEPARTMENT 1ST FLOOR, "A" BLOCK RAJATADRI, MANIPAL UDUPI DISTIRCT – 576 104.
... PETITIONER 3. JOINT DIRECTOR MINES & GEOLOGY DEPARTMENT SOUTH ZONE, CA 4, 1ST D CROSS, 4TH MAIN BLOCK 1, RAMAKRISHNA NAGAR MYSORE 570 022.
(BY SHRI VIKRAM HUILGOL, HCGP) ---
... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER/NOTICE DATED 07.08.2018 ISSUED BY THE SENIOR GEOLOGIST, MINES & GEOLOGY DEPARTMENT, UDUPI DISTRICT, IN ANNEXURE-A AND ETC.
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 High Court Government Pleader appearing for the respondents.
2. The challenge in this petition under Article 226 of the Constitution of India is to the notice dated 7th August 2018 issued by the second respondent – the Senior Geologist. The said notice was challenged by the appellant by filing a revision application before the third respondent – the Joint Director. The revision application was dismissed. The notice and the said order are challenged in this writ petition. We have taken up the petition for final disposal.
3. The learned counsel appearing for the petitioner pointed out that the impugned notice notes that sand having a quantity of 1046 Metric tone was found stored in the subject land. It is further noted in the impugned notice that the sand was stored without getting permission from the Authority and hence, the same was seized. He pointed out that in the reply to the notice, the petitioner had clearly stated that he was granted a licence for transportation of sand (Trip Sheet-112 Nos). He stated that he had lawfully purchased the sand for construction of his own building. He pointed out that in the reply it is stated that the original licence for transportation as well as the proposed plan for construction of building were shown to the officer of the State Government at the time of spot inspection. He pointed out that in the reply, a specific contention was raised that the petitioner purchased the sand for his personal use and he was not intending to sell the same. The learned counsel appearing for the petitioner on instructions of the petitioner reiterates that the petitioner will not sell the sand which he has purchased for personal use for construction.
4. On the last date, we had called upon the learned High Court Government Pleader to ascertain whether the sand was transported under a valid permit by the petitioner and whether storing of a sand which is lawfully purchased by the petitioner amounts to violation of any provision law.
5. Today, the learned High Court Government Pleader on instructions states that the quantity of sand found on the subject land was transported by the petitioner under a valid licence.
6. Perusal of the impugned notice shows that there is no specific allegation therein that the sand was illegally purchased or that the sand was illegally transported by the petitioner. The allegation is that the sand has been stored without getting permission from the Authority. In the present case, the petitioner acquired the sand and admittedly transported the same to the subject land after obtaining a transport permit and the sand was stored in his land. No provision of law is pointed out which requires permission for storing such a sand which was lawfully purchased and transported lawfully. Merely because the construction of the building by the petitioner is delayed, it cannot be inferred that the petitioner has committed any illegality. We accept the statement of the learned counsel appearing for the petitioner that the sand will not be sold by the petitioner and the same will be used for his own construction.
7. It is not in dispute that the sand was transported under a valid permit. Storing the sand on his own land is not a violation of law so long as the petitioner does not unauthorisedly sells or transports the sand.
8. The Revisional Authority was impressed by the fact that the permission for conversion of the land was not obtained. It is not the case that the petitioner had commenced the construction without conversion. In fact, the allegation in the show cause notice was that there was no construction carried out by the petitioner. Merely because the permission for conversion is not obtained, storage of the lawfully transported sand does not become illegal. Therefore, the impugned notice and impugned order passed in the revision application will have to be set aside and accordingly, we pass the following order:
(i) The impugned show cause notice dated 7th August 2018 and the impugned order of the Revisional Authority dated 21st December 2018 are hereby set aside subject to the acceptance of the assurance of the petitioner that he will not sell the sand stored in the subject land.
(ii) Accordingly, the petition is disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE SN