Karnataka High Court
Sri Venkateshwara Hill Crushers ... vs The State Of Karnataka Represented Its ... on 15 February, 2008
Equivalent citations: 2008 (3) AIR KAR R 403
Author: Anand Byrareddy
Bench: Anand Byrareddy
ORDER Anand Byrareddy, J.
1. Heard the Counsel for the petitioners and the Counsel for the respondents.
2. The petitioner are questioning the validity of the Circulars issued by the State Government prohibiting the grant or renewal of quarry leases in gomal lands.
3. The facts and circumstances leading upto this petition are as follows:
The first petitioner claims to be a holder of quarry lease for winning of granite (a minor mineral) granted by the State Government under the Karnataka Minor Minerals Concession Rules, 1994 (hereinafter referred to as the KMMC Rules). It is the said petitioner's case that a lease was so granted from 13.9.2001, in a portion of survey No. 6 of Ravagodly Village, Bangalore South Taluk. As the permission for lease was about to expire, the petitioner had applied for a renewal of the quarry lease, as provided under the KMMC Rules, before the competent authority, by an application dated 24.5.2006.
4. The second petitioner claims to represent the interest of several quarry lease holders or applicants commonly with the first petitioner. It is the case of the petitioners that the first respondent had issued a Circular dated 24.2.1999 bearing No. RD 72 LOP 98 authorising grant of quarry lease in gomal lands, subject to certain conditions mentioned therein. The said Circular was the subject matter of challenge before this Court in a writ petition in W.P. No. 28225/1999 K.V. Vishwanath and Ors. v. State and Ors. which was classified as "Public Interest Litigation" and accordingly, a division bench of this Court had heard the matter on merits and upheld the validity of the Circular by its order dated 29.11.1999. It was held that there is no violation of Section 71 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the KLR Act, far brevity) and the State Government was vested with the power to issue a Circular of the nature which was under challenge. Yet another division bench of this Court, while also considering the validity of the vary Circular dated 24.2.1999 in Writ Petition No. 25037/1999 found that the question was already covered by the above decision and exposed that it may require reconsideration, in view of another division bench decision of this Court in M. Katappa and Ors. v. State and Ors. ILR 2001 Kar 2363 and accordingly the matter was referred to a Full Bench of this Court.
5. The Full Bench by its decision dated 11.8.2003 in D.C. Ramesh and Ors. v. State and Ors. , opined that the two judgments under consideration did not take a divergent view and further, approved the reasoning and finding arrived at in K.V. Vishwanath's case, wherein the validity, of the Circular dated 24.2.1999, was upheld. Consequently, the latter writ petition in WP No. 25037/1999 challenging the Circular dated 24.2.1999 was dismissed, by its order dated 22.6.2004. Pursuant to the same, the Despondent had granted innumerable quarry leases in gomal lands on the basis of the above said Circular dated 24.2 1999.
6. The first respondent issued 8 Circular bearing No. RD 74 LOP 2005 dated 24.12,2005 on the basis of a decision of a Single Judge of this Court in Writ Petition No. 21221/2005 and connected petitions, dated 22.9.2005, whereby the authorities were directed not to grant any gomal lands for agricultural activities It was opined therein that a writ of mandamus cannot be issued directing the authorities to regularise unauthorised use of any gomal lands.
7. This Court had farther directed that the order, to the said effect, be communicated to all the Deputy Commissioners of all Districts in the State end the Chief Secretary to the Government was to ensure due follow-up action declared by the Court. The petitioners would point out, that there is no reference to the Circular dated 24.2.1999 in the said decision, which did enable the authorities to grant quarrying leases in certain cases Nor did the order of the Court refer to either the division bench judgment or the full bench judgment of this Court upholding the said Circular. In any event, the order of the Court in Writ Petition No. 21221/05 was the subject matter of a challenge in appeal before a division bench in a writ appeal bearing W.A. No. 1353/2006" and connected appeals. The division bench allowed the appeal and set aside the judgment of the Single Judge while issuing farther directions to the authorities to regularise unauthorised cultivation after following the procedure prescribed.
8. Pursuant to this judgment, the first respondent had issued yet another Circular bearing No. RD 83 LOP 2006 dated 10.4.2007/5.1.2007 and directed the authorities to regularise unauthorised cultivation. However, a further direction was issued not to grant or renew mining leases, in the event the same are situated in gomal land or other types of reserved land. Pursuant to this, the second respondent issued yet another Circular dated 16/20.8.2007 bearing No. GBE/KGG/AD/KA/2007-08/6403 directing the department not to grant or renew granite quarry leases.
9. It is the case of the petitioners that the Circular dated 24.2199 has neither been withdrawn nor modified and the same continues to be in force. The validity of the same has been upheld by a Full Bench of this Court and it has attained finality. The present Circulars which are under challenge, are a clear misinterpretation of the decision of the learned Single Judge in Writ Petition No. 21221/2005 for issuance of the Circular dated 24 12 2005 and a further misinterpretation of the decision of the division bench for the issuance of Circulars dated 10.4.2007 and 16/20.8.2007. The decisions of the learned Single Judge as well as the division bench had proceeded to consider only the question of regularising unauthorised cultivation of lands, as provided under Section 94A and 94B of the KLR Act in the said decisions. There was no reference or consideration of the aspect of Quarrying leases granted in gomal lands. Hence, the circulars seek to place a gloss over the orders and directions of this Court and runs counter to a Circular which continues to remain in force and which has the effect of law and therefore, it is contended that the Circulars dated 10.4.2007 and 16/20.8.2007 are illegal and liable to be quashed. It w in this background that the writ petition is filed.
10. The Counsel for the petitioners would elaborate on the grounds urged and would submit that the validity of the Circular dated 24.2.1999 having been unsuccessfully challenged and having been affirmed by a Full Bench of this Court the directions contained in Annexures-J and K prohibiting the grant or renewal of quarrying lease in gomal lands, is liable to be set aside. The preamble to the above impugned Circulars indicates that the basis for the same are the judgment of the learned Single Judge and the Division Bench referred to hereinabove in Writ Petition No. 21221/2003 and Writ Appeal No. 1353/2006, respectively. This is apparently erroneous, as the said judgments cannot form the basis for prohibiting grant or renewal of quarrying leases. As the question for consideration before the Court in those cases, was only concerning the regularisation of unauthorised cultivation of gomal lands and the said decisions had no occasion to consider the aspect of quarrying lease granted in gomal lands. Hence, the Circulars seeking to extend the prohibition in respect of quarrying leases, is not in accordance with the said decision of this Court nor did the said decision contemplate any such prohibition. The basis was therefore an incorrect assumption in proceeding to prohibit the granting or renewal of quarrying leases. In any event the Circulars cannot also be supported on the ground of any independent decision of the State Government in reconsidering its earlier policy decision to grant quarrying leases over gomal lands.
11. The Counsel would lake this Court through the above mentioned Circulars and the several judgements above mentioned, to demonstrate that the petition deserves to be allowed as the impugned Circulars are clearly inconsistent and could not have been issued on the basis of the above two judgments, which are indicated as being the basis for the same.
12. Per contra, the Government Advocate would seek to contend that the petitioner do not have the locus-standi to challenge the said Circulars, since, they are in the nature of interdepartmental communications disclosing the policy decision of the State Government, which is in public interest and far the benefit of the pubic good which takes precedence over private interest.
13. It is further pointed out that the petitioners quarrying base having expired in the year 2006, the petitioner is not in a position to prosecute this petition as his application for renewal cannot be considered at all for it is the present policy of the State to reserve and protect "gomal, gairan and hullubanni and pasturage lands" for public purpose and that the same cannot be granted to any individual or institution or for mining purposes. The policy is in consonance with the intention of the Government to protect nature and to preserve pasturage. There can be no challenge to a policy decision of the State Government. Though the earlier policy did permit the grant of pasturage lands for mining purposes, or even for other purposes, the petitioners do not have any vested right to claim that it ought to be continued. The change in policy for the larger public good is a prerogative of the State and therefore, cannot be the subject matter of challenge in this writ petition. It further cannot be said that the policy of the State Government is opposed to law or void ab initio nor is it violative of any constitutional provision and therefore, there is hardly scope for interference by this Court at the instance of the petitioners.
14. It is further contended that the gomal lands belong to the State Government and as to how these lands are to be used, is m the discretion of the State Government, in accordance with the provisions of law and in the test interest of the public. The Stale Government has itself made an exception to the policy while engrafting Section 94-A 94-B, 94-C of the KLR Act and Rule 97-A and 108 of the Karnataka Land Revenue Rules, 1966 (hereinafter referred to as the KLR Rules, for brevity) and even under the said provisions, the some being subject to restrictions, a claimant would not he entitled to claim the benefit of such consequence as a matter of right It would follow that there is no vested right even in such cases where an exception can be made for the regularisation of the usage of such lands. The Circulars under challenge are intended to preserve and protect pasturage and have been issued only to reiterate the policy of the Government and the provisions of law which are already in force.
14. It is also canvassed by the Government Advocate that the Circular dated 24.2.1999, which is in accordance with the earlier policy of this State Government stands superceded by the subsequent circular and is completely extinguished and stands substituted by the Circular dated 5.1.2007 and this is in the face of relevant provisions of Law, more particularly, Sections 94-A, 94-B, and 94-C and the order of the division bench and would submit that by the very issuance of the Circular dated 5.1.2007, the earlier Circular dated 24.2.1999 stands effaced and that no particular inference need be made to the same to conclude that it stands superceded.
16. The Government Advocate would also submit that the Circulars under challenge have not been placed before the Cabinet in accordance with the Rule 21 read with Schedule 1 Item No. 28 and 31 of the Karnataka Transaction of Business Rules, is not tenable, since a Circular or an executive Order indicating the policy decision taken by the State Government on a plain interpretation of the legal provisions, need not be placed before the Cabinet and the absence of any such procedure, is not a ground for challenge of the said Circulars and the Government Advocate places reliance on the following authorities in support of his contentions:
- B.V. Malla Reddy v. State of Karnataka ,
- Manjunatha K.P. and Ors. v. State of Karnataka and Ors. 1976(1) KAR LJ 380,
- S. Siddappa and Ors. v. State of Karnataka ,
- M. Katappa and Ors. v. State of Karnataka and Ors. ILR 2001 KAR 2363,
- K Kuppusamy and Anr. v. State of Tamil Nadu and Ors. ,
- Union of India and Anr. v. Central Electrical and Mechanical Engineering Service Group A (Direct Recruits) Association, CPWD and Ors. AIR 2007 SCW 6986,
- K.P Sudhakaran and Anr. v. State of Kerala and Ors. ,
- Easland Combines, Coimbatore v. Collector of Central Excise, Coimstore AIR 2003 SCW 294,
- T. Banri v. Henry Ah Hoe and Anr. ,
- State of Madhya Pradesh and Ors. v. Krishnadas Tikaram 1995 Supp(1) SCC 587.
17. On these rival contentions of the parties, having regard to the order on reference by a Full Bench of this Court in D.C. Ramesh and Others, supra, wherein, while considering the decisions of this Court in Katappa's case and in K.V. Vishwanath's case, the Full Bench has taken the view that the petition in Katappa's case was filed in the year 1992, challenging a Notification sanctioning the grant of quarrying lease under Rule 9 of the KMMC Rules, wherein the grant related to a portion of land which was classified as 'gomal land'. The petition, which was in the nature of a Public burnt Litigation. having been confined by the Division Bench, it was held therein that Rule 97 of the KLR Ruin prescribed the determination of extort of land necessary for free pasturage, as a condition precedent before the authority could divert gomal land for any other user and that only if the availability of land exceeds the minimum prescribed in Sub-rule (1) of Rule 97 of the said Rules, that the Deputy Commissioner would be in a position to reduce the extent of land to the prescribed minimum and non-observation of the procedure prescribed in this regard would vitiate the grant and it was on that note, that the writ petition was allowed. The Full Bench has taken note of the feet that the Circular dated 24.2.1999, on which reliance is placed in the present case on hand, was not taken note of by the Bench which decided Katappa's case.
18. On the other hand, in K.V. Vishwanath's case, supra, the very Circular dated 24.2.1999 was under challenge and the same was upheld by a Division Bench of this Court with the observation that the Circular wag equivalent to a Government Order far all practical purposes and that it does not take away the right conferred toy Section 71 of the KLR Act. This Court did uphold the power of the Government to issue the said Circular.
19. The Full Bench concluded that the two decisions namely, in Katappa's and Vishwanath's case respectively, did not express any divergent opinion and the Circular dated 24.2.1999 which was not in existence when Katappa's case was filed in the year 1992 and consequently, there is no reference to the said Circular in the case which was decided on 29.11.2000. And further, that in Vishwanath's case, the validity of the Circular was in issue. And that there is no reference to the decision in Katappa's case. It was held that the said decision not referring to the earlier decision of this Court in Katappa's case, docs not result in any divergence of opinion, as there was no challenge to the Circular as being violative of Rule 97(4) of the KLR Rules. Further, on the issue whether the Circular could be considered on par with a Government Order, it was held that it would be available for the Government to declare its decision or intention either by way of a Circular on a Government Order.
20. It was observed that in the case on hand, there would not be a difference between the same, as both have the same effect of conveying the guidelines framed by the Government for the consideration of an application for grant or renewal of a quarrying licence, dependant on the fact situation of each given case, in ace dance with law, It was held that as the Circular only provided a guideline, it would hardly nuke any difference. The Full Bench of this Court having examined the original records in the given case, it was found that the decision regarding general instructions to be given by way of guidelines fox grant of quarrying lease in respect of land with granite and hard-rock and which had ceased to be gomal land, was in fact referred to a Cabinet Sub-Committee, which had recommended the guidelines for grant of quarrying licence and the same having been accepted by the Cabinet and which, in turn, ordered issuance of necessary orders containing instructions to be Mowed, while ironing a fresh licence or renewal of an existing licence and therefore, the Full Bench concluded, that the Circular dated 24.2.1999, was traceable to the decision of the Government and that it only contains the guidelines to be followed while renewing or issuing a fresh licence en mentioned in the Circular.
21. It if useful here to extract the contents of the Circular dated 24.2.1999 which reads as follow:
1. As areas of 'Gomal Lands, wherein Mining Leases were granted previously, consul of huge and hard rocks and as there is no chance of growing grass or any other type of plants, because of mining operations being carried out for many years, and where the land no longer bears the features of Gomal land, if such areas are continued to be reserved as Gomal, no purpose will be served. On the other hand, it would attract persons who indulge in illegal mining operations.
2. Areas though identified as Gomal lands but as these lands are covered by rocks and cannot he used as Gomal lends, if these lands are not leased for mining, it would encourage illegal mining.
Taking, into consideration these aspects and other relevant factors and in its background and basis, the lands which are classified as Gomal lands, but covered with huge and hard rocks may be considered for being granted for quarrying (mining). In this regard, the following guidelines have been framed;
(a) In Gomal lands, wherein mining operations have been carried on for many years, if according to a joint spot inspection to be conducted by the authorities, belonging to the Department of Revenue and the Department of Mines and Geology, and where the lands consist of boulders and rocks and which is uncultivable Gomal, in such cases mining leases can be renewed.
(b) Accordingly, lands which are mostly rocky but classified as Gomal lands and on a joint spot inspection by the authorities of Revenue Department as well as Mines and Geology Department, the lands can be considered for being leased out to fresh applicants, for mining.
(c) The Commissioner of the concerned subdivision and Senior Geologist/Geologist of the concerned District shall be authorised Authorities for the purpose of joint spot inspection.
(d) While taking action as per (a) and (b) other relevant Rules shall be followed.
(e) If forest land, in any given case extends into Gomal land, no mining lease shall be granted in such areas
22. Insofar as the decision of the learned Single Judge in Writ Petition No. 21221/2005 and the judgment of the Division Bench in Writ Appeal No. 1353/2006 and connected cases are concerned, it is clear that the subject therein related to claims for regularisation of unauthorised possession and cultivation of gomal lands. The learned Single Judge took the view that a writ potion would not He for issuing directions to the Government to compel the authorities to act contrary to the statutory previsions namely, Section 67, 69 and 71 of the KLR Act and Rules 97 and 108(1) of the KLR Rules. On the other hand, the learned Single Judge directed the authorities to ensure that all lands which are classified as gomal lands are retained as such and that they are preserved for the common utility of the community of the Village. The Single Judge did not consider the aspect of other uses, to which such land could be diverted nor was there any reference to the Circular dated 24.2.1999 which continued to he acted upon by the authorities. The order of the learned Single Judge having been challenged before the Division Bench, the Division Bench took the view that Sections 94-A, 94-B and 94-C having been incorporated into the Act, apart from Rule 97(4) and 108-B to EE of the KLR Rules having been inserted, the said provisions would have to be given effect to in order to achieve the object and intendment of the said Act and Rules and that if the order of the learned Single Judge is to be given effect to, the above said provisions would remain only on the statute book, without capable of being implemented, rendering them redundant and nugatory and therefore, allowed the writ appeals end directed the concerned to identify all gomal and other reserved lands and consider whether their extent were to be retained or reduced "or totally diverted to other purposes" based upon the cattle population and the requirement in respect of which, the reservation may still exist in the concerned areas. Here again, the Division Bench was not concerned with the permitted user of certain gomal lands, as were diverted in accordance with the Circular of 24.2.1999, on the other hand it would seem that the Division Bench did bear in mind such diversion in appropriate cases. It follows that only such of those gomal lands, which can no longer be classified as gomal lands, on account of the same being largely covered with hard-rock and not fit as gomal land and on such identification of lands, that the authorities could take steps to consider the granting of quarrying licences in respect of the said lands. Hub did not pre-suppose that the express provisions of the KLR Act, which confers jurisdiction on the Deputy Commissioner, insofar as the power of tine Deputy Commissioner to set apart lands fox free pasturage for any given village. Die intention of the Government in issuing the Notification of 24.2.1999 and the manner in which it ought to be implemented, having been indicated in the Notification itself, as held by this Court in K.V. Vishwanath's case, supra, the present impugned circulars seeking to extend the scope of the orders of this Court, as it were, while the Circular doted 24.2.1999 continues to remain in force, is not permissible Further, the Full bench of this Court having taken the view, as referred to hereinabove, that the Circular dated 24.2.1999 was a decision of the Cabinet and that the present impugned Circulars cannot override the same, as they are not in accordance with the Karnataka Government (Transaction of Business) Rules, 1977 is yet another consideration, which would render the impugned Circulars as being inconsistent and contrary to the legal position.
23. The Circular dated 24.2.1999 is to be read subject to the direction issued by this Court in Writ Appeal No. 1353/2005. The said directions do not warrant any interpretation and purported clarification as Bought to be extended by the impugned Circulars. There is no conflict insofar in the guidelines as are spelt out in the Circular dated 24.2.1999 ere concerned and the directions issued by the Division Bench of this Court in the above mentioned appeal.
24. Therefore, the present writ petition is allowed. The impugned Annexures-J and K are quashed. The respondents are directed to consider and dispose of all educations for grant or renewal of leases in gomal lands, expeditiously and in any event, within a period of three months.