Karnataka High Court
B.S. Suresh vs The State Of Karnataka And Others on 21 January, 1997
Equivalent citations: AIR1997KANT355, 1997(3)KARLJ180, AIR 1997 KARNATAKA 355, (1997) 3 KANT LJ 180
ORDER
1. In the present case, the petitioner has questioned the constitutional validity of Rule 8-A of the Karnataka Minor Minerals Concession Rules, 1994 thereinafter in short "Rules"), which had been inserted by Karnataka Minor Minerals, Concession (Amendment) Rules, l995, with effect from 6-5-1995. The petitioner has been impelled to challenge the said rule because of Ihe rejection of his application daled 14-12-1994 for grant of stone quarrying lease by the 3rd rcspondent-Sr. Geologist under his notification dated23-8-1996 on the ground that the application was not maintainable because of the provisions contained in impugned rule.
2. Admittedly, on 14-12-1994 the pciitioner had made an application to the 3rd respondent-Sr. Geologist for grant of a quarrying lease over an cxtent of 1 acre 60 guntas in Sy. No. 50 or Kannur village. Bidarahally Hobli, Bangalore South Taluk. But the said application came io be rejected by the 3rd respondent under notification Ann. 'B', as stated above.
3. Impugned Rule 8-A of the Rules, reads as under:--
Rule 8-A : Availability of land belonging to the Slate Government to be notified for grant:
(1) No area belonging to the State Government-
(a) Which was previously held or is being held under a quarrying lease: or
(b) the quarrying lease granted in respect of which has lapsed under Rule 6;
(c) In respect of which a notification has been issued under sub-rule (3) of Rule 8;
shall be available for grant unless the avai.ability of the area for grant is mitified in the official gazette and specifying the date (being the date not earlier than thirty days from the date of publication of such notification in the official gazette) from which such area shall be available for grant.
Provided that nothing in this rule shall apply to renewal of a quarrying tease in favour of the original lessee or his legal heirs, notwithstanding the fact that the lease has already expired.
Provided further that where an area is reserved for use by the Stale or Central Government company or any body or corporation owned or controlled by the State or Central Government, issue of such notification under this rule shall not be necessary before gram of quarrying lease in respect of such area.
(2) The Slate Government may, for reasons to be recorded in writing relax the provisions of sub-rule (!) in any special case.
(3) Any application for grant of quarrying lease in respect of areas whose availability for grant is required to be notified under sub-rule (1) shall if-
(a) No notification has been issued under that Rule; or
(b) Whether any such notification has been issued, the period specified in the notification has not expired, be deemed to be premature and shall not be entertained, and the application fee thereon, if any paid shall be refunded.
(Emphasis supplied)
4. The validity of impugned Rule. 8-A as quoted above has been challenged on thegrounds that: (i) it is ultra vires the rule making power contained in S. 15 of the Mines and Minerals (Regulation and Development) .Actt 1957 thereinafter in short 'the Parent Act'); and (ii) it imposes unreasonable restrictions as being opposed to public interest and policy, thereby violating the constitutional requirements implicitly envisaged under Art. 14 of the Constitution of India.
5. Chapter-II of the Rules contain the general provisions for grant of quarrying leases or quarrying licenses for minor minerals. Rule 6 inter alia, provides that if the holder of aquarrying lease or licence failed to undertake quarrying operation for a period of one year after date of execution of the lease or date of grant of licence or having commenced the quarrying operation, has discontinued the same for a period of one year, the quarrying lease or licence shall lapse on Ihe last date of the period of one year. The Rule 8 provides for certain restrictions on grant or renewal of such leases and licences. Sub-rule (3) of Rule 8 provides that, no quarrying lease shall be granted in respect of any land notified by the State Government as reserved for use by the State or the Central Government, any body or Corporation owned or controlled by the State or Central Government or for any other public or special purpose.
6. Chapter-111 of the Rules deals with grant of quarrying lease for specified minor minerals. The expression "specified minor minerals" has ' been defined under cl. (m) of Rule 3 of the Rules to mean, minor minerals specified by the State Government from time to time. Sub-rule (2) of Rule 9 contained in this Chapter, inter alia, directs that an application for renewal of quarrying lease to quarry specified minor minerals has to be made at least nine days before the expiry of the lease. Rule I6of the Rules restricts the periods for which quarrying lease may be granted or renewed. This rule reads as under:
"(1) The period for which a quarrying lease may begranted under this chapter shall not exceed twenty years in any case.
(2) A(quarrying lease under this chapter may be renewed for two period each not exceeding twenty years."
Rule 19 of the Rules sets a liberty to the lessee to surrender the lease in whole or pan in the manner provided therein.
7. Chapter IV of the Rules makes provision for grant of quarrying leases for non-specified minor minerals. Sub-rule (2) of Rule 21 makes provisions for making of application tor renewal of such quarrying leases. Rule 26.putsanembargo on the period for which quarry ing leases in respcel of non-specified minor minerals grants or renew, the rule reads thus:--
"(I) The period for which a quarrying lease may be granted under this chapter shall not exceed five years;
Provided that where the request for gram of a quarrying lease is in respect of a mineral-based industry belonging to the applicant, lease may be granted for a period noi exceeding ten years.
(2) A quarry ing lease may be renewed for two periods not exceeding five years in all;
Provided that, if the lessee is owner of an industry which is based on the quarry lease held by him, the lease may be renewed for ten years at a time.
8. From the above provision it is quite clear that lands belonging 10 Government may become available for grant of quarrying leases in situations tike (i) on expiry of the quarrying lease in respect of an area over which quarrying operations have been conducted, i.e.. the worked lands, or, (ii) in respect of such kinds for which lease had been granted but the same came to be lapsed because of non-execution of the lease or for non-commencement of the quarrying operations within the period specified in the Rule 6 and (iii) the lands which is reserved for Governmental instrumentalities for quarrying in terms of Rule 8(3) but subsequently Government decides to make it available to the public for quarrying purposes.
9. It appears that before insertion of Rule 8-A, the quarrying leases could have been issued by the authorities in respect of the lands which were available for the said purpose under either of the three circumstances referred toabove by applying the priorily rules as contemplated under Rules13 and 23 of the Rules.
10. It is a matter of ordinary prudence that unless the Government would have made it known to the public at large regarding the availability of the lands for grant of quarrying leases under any of the three circumstances referred to in Rule 8-A(I). it would have been difficult to have the knowledge of the same to an inspirant for the purpose, unless, the person interested had the links and sources to acquire the same through bureaucratic linkage. Therefore, such aprocedure being not transparent was amenable to abuses and manipulation, it is keeping in view these aspects that the impugned Rule 8-A appears to have been inserted, so that the lands of the Government which fulls available for grant of quarrying leases, applications could be filed by each and every'interested person without requiring to trace any private source or links to acquire the knowledge for the same. The provisions on its very fact are more reasonable and in a closer proximity to a desired public policy and interest. Such a measure cannot in any way be held as opposed to reasonableness and equality clause, namely. An. 14 of Constitution of India.
11. I may clarify here that Rule 8-A merely, provides for a condition precedent for filing of application for grunt of quarrying lease, in as much as. unless the government notifies ihe areas covered by any of the clauses under sub-rule (I) of Rule 8-A in the official ga/.ette specifying the date being not earlier than 30 days from the date of publication of such notification, the applications filed for grant of quarrying lease cannot he considered as valid and entertainable. It is only the applications which are filed after the expiry of the said date, which will qualify for consideration and grant of mining lease keeping in view the priority rule provided under Rules 12 and 23 of the Rules.
12. So far as the plea raised regarding competence of the State Government to make the impugned rule is concerned, the same has 10 be outrightly rejected in view of S. 15 of the Parent Act. Sub-section (I) of the S. 15 confers a general power on Stale Government to frame rules for regulating the grant of quarrying leases and sub-see. (2) thereof merely provides with enumerated matters. It is now welf settled that particularssation of powers under a sub-section of enabling provision cannot lake away the general rule making powers of a delegated authority which are of wider sweep. Even otherwise, the impugned Rule 8-A is merely a part of general procedural scheme for grant/obtain of quarrying leases which is covered even by clause (e) of sub-sec. (lA)of S. 15 of the Parent Act. This clause reads thus:
"15(1-A): In parlicular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--
(a) .....
(e) the procedure for obtaining quarry leases, mining leases or other mineral concessions;
(f)....."
13. In the case of Sydarshan Mineral Co. Ltd. v. Union of India, , a similar contention as has been raised herein, had been rejected by the Supreme Court in the context of S. 13 of the Parent Act, which confers power on Central Government to frame rules. It has been held there in that-
"As is well settled, the power to make rules for regulating the grant of prospecting licences and mining leases in respect of minerals and for purpose connected therewith is to be found in sub-sec. (I) of S. 13. Sub-section (2) merely illustrates the nature of the powers. It does not restrict the general power under sub-sec. (1).
14. For the aforesaid reasons, in my opinion, the petitioner has failed to make out any case in his favour entitling the relief claimed. The writ petition is therefore dismissed but without costs.
15. Petition dismissed.