Karnataka High Court
Chikkusappa vs State Of Karnataka And Ors. on 7 November, 2005
Equivalent citations: 2006(3)KARLJ64, 2006 (1) AIR KAR R 529
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. In all these petitions, petitioners are persons who claim ownership of agricultural lands located at different places, one such being at Rechamballi Village, presently, Chamarajanagar District which is also described as an erstwhile old Mysore area and such lands which are described as patta lands and the owners of such lands being also known as 'pattadars'.
2. It is the admitted position that all petitioners are carrying on quarrying activities which does amount to mining operation as understood under the provisions of Mines and Minerals (Development and Regulation) Act, 1957 (for short, 'MMDR Act'), Mineral Concession Rules, 1960 as also the Karnataka Minor Mineral Concession Rules, 1994.
3. Petitioners who extract the mineral, particularly, black granite or the pink granite from the quarries, after cutting boulders and rocks into requisite size, want to transport the same to a port wherefrom it is being exported to foreign countries. Such transportation is governed by Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994 and necessary application for securing what is known as the mineral dispatch permit in Form MDP had been made by the petitioners. It is in the process of issue of such permits that the petitioners have encountered hurdles and difficulties and the petitioners are complaining that they are being unnecessarily asked to run around made to go from pillar to post; that the respondents, particularly, the officials of the Department of Mines and Geology, the Deputy Director has not positively responded to their application and for issue of mineral dispatch permit, but purporting to place reliance on certain communication dated 7-12-2001 (copy at Annexure-H) said to have been issued by the Deputy Commissioner of the District has withheld issue of mineral dispatch permits on the premise that he has been apprised by the Deputy Commissioner through the letter referred to above apprising that such applicants may be informed that they can get mineral dispatch permits only after securing permission in terms of the provisions of Section 95 of the Karnataka Land Revenue Act, 1964 (for short, 'the Act'), a permission where under the petitioners are allowed to use agricultural land for non-agricultural purposes also and that they have been asked to ensure with the same; that such mineral dispatch permits will be issued only after the authorities are satisfied that the petitioners are persons in possession of a permission in terms of Section 95 of the Karnataka Land Revenue Act, 1964.
4. The net result being that the petitioners who are eager to transport the cut and sized boulders in either black granite or pink granite were unable to transport it to the ports for export as the officials of the Department of Mines and Geology have not issued the mineral dispatch permits so far and it is in the context of such inaction on the part of the respondents that the petitioners have approached this Court contending that without any justification in law, the respondents have withheld issue of mineral dispatch permits; that it is not the business of the officials of the Department of Mines and Geology to either insist or apprise the petitioners that the petitioners are required to obtain permission in terms of provisions of Section 95 of the Karnataka Land Revenue Act, 1964; that once earlier such a controversy had arisen when in respect of very petitioners and some others also, the issue of transport permits were withheld for one reason or the other and particularly when the persons like the petitioners were told to seek for permits through the Tahsildar of the Taluk, such inaction on the part of the authorities had been made subject-matter of the decision in Writ Petition No. 4563 of 1987 and connected matters and this Court having categorically ruled that the respondents had no competence or jurisdiction to insist on the petitioners to obtain any transit permit in the present state of law, even if persons like the petitioners had not obtained requisite permission under Sections 95 and 96 of the Act; that the said ruling applies to the present cases also and automatically, this Court should issue a writ directing the respondents, to grant mineral dispatch permits to the petitioners on the petitioners complying with such other requirements contemplated in law such as payment of royalty, fee towards demarcation of the area identified and earmarked for quarrying activity contemplated under Rule 17 of the Rules; that in fact, the petitioners are more than willing to comply with all other requirements under the Karnataka Minor Mineral Concession Rules, 1994 and they have already complied with the same; that in terms of the order passed by this Court in Writ Petition No. 4563 of 1987 and connected cases, wherein identical disputes having been decided in favour of the persons like the petitioners, the present inaction on the part of the respondents clearly attracts the scrutiny of this Court for issue of a suitable writ in the exercise of writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India; that the respondents cannot by referring to the provisions of Section 95 of the Act postpone or decline the issue of mineral dispatch permits to persons like the petitioners; that they cannot be compelled to move the revenue authorities for issue of permission for diverting the lands to non-agricultural purpose as contemplated under Section 95(2) of the Act; that in fact, Section 95(2) of the Act is not even attracted, inasmuch as, there is no diversion at all, in the sense, that in the land where the petitioners are carrying on quarrying operations, the land had never been cultivated hitherto; that the terrain being one of rock and boulders, it is not possible to grow anything nor had anything been grown on the land earlier and if so, there being no diversion or conversion of the user, in the sense, land for agricultural use being converted for non-agricultural use does not arise and therefore the inaction on the part of the authorities calls for issue of suitable writ.
5. It is also the common contention of the petitioners that the decision of this Court rendered earlier in Writ Petition No. 4563 of 1987 and connected cases constitutes a precedent for the present writ petitions and the present writ petitions have to be allowed following the law laid down by this Court in the said writ petition referred to above.
6. Respondents had been issued with notices and are represented by Smt. Suman Hegde, learned Government Pleader.
7. The stand of the respondents is that the decision relied upon by the petitioners does not amount to a precedent for the purpose of the present cases; that the questions involved in the present cases and the subject-matter in Writ Petition No. 4563 of 1987 and connected matters have different backgrounds and have arisen in different contexts; that the examination is not the same and at any rate, it is contended that the earlier decision cannot constitute an authority or precedent for the purpose of understanding the provisions of Section 95 of the Act or the requirements contemplated in terms of this provision; that the moment an agricultural land held for agricultural purpose is sought to be used for a non-agricultural activity as in the present cases, carrying on quarry operations is inevitably a non-agricultural activity and therefore obtaining of the permission under Section 95(2) of the Act is mandatory; that if the revenue authorities had not apprised the officials of the Department of Mines and Geology about such requirements in law and if they had asked the officials of the Department of Mines and Geology not to issue mineral dispatch permits in favour of the petitioners unless the petitioners are able to satisfy the authorities that they had requisite permission in terms of Section 95 of the Act for putting a land held for agricultural purpose to such other uses such as for quarrying of granite, no exception can be taken either for the internal communication from the Deputy Commissioner to the Deputy Director of Mines and Geology if such is the requirement of law also; that the petitioners have no right to insist on issue of mineral dispatch permits even under Rule 42 when they have not complied with other requirements of law; that the question as to whether a permission in terms of Section 95 was required or not was neither directly in issue in the earlier batch of cases nor had it been examined in the context of the provisions of Section 95 of the Act itself; that the examination in the earlier round of writ petitions was only in the context of the nature of right the petitioners had for the purpose of extracting the minor mineral granite from their lands known as patta lands and the Court opined such right was an unfettered right in favour of the petitioners and in the present batch of cases the issue is not as to the nature of right the petitioners have in the lands in question for the purpose of extracting the mineral, but with regard to procedural requirements of Section 95 of the Act; that non-compliance of which provision can definitely enable the authorities to apprise the petitioners for such non-compliance and call upon them for securing compliance; that if in the interregnum issue of mineral dispatch permits are withheld, no exception can be taken.
8. While no counter or statement of objections have been filed on behalf of the respondents as such, the stand is clear from the submissions made by Smt. Suman Hegde, learned Government Pleader in the course of the arguments as also from the written arguments filed on behalf of the respondent-State in the course of hearing of the petitions.
9. The net result is that while the petitioners insist that they are entitled to get the mineral dispatch permits under Rule 42 as a matter of right and in the circumstances, the respondents are denying this and contend that unless the petitioners have also obtained the necessary permission under Section 95(2) of the Act, they cannot insist upon issue of mineral dispatch permits. This in substance is the controversy involved in these writ petitions.
10. Elaborate submissions have been made on behalf of the petitioners led by Sri D.L.N. Rao, learned Senior Counsel and supported by Sri Jayakumar S. Patil, learned Senior Counsel appearing in Writ Petition No. 4800 of 2005, Sri M. Mahadevappa Swamy, learned Counsel appearing for petitioner in W.P. Nos. 5151 and 12395 and 15457 of 2005, Sri S.V. Bhat, learned Counsel appearing for the petitioner in Writ Petition No. 4854 of 2005, Mr. Shivanand, learned Counsel appearing for Writ Petition No. 4750 of 2005 and Smt. Suman Hegde, learned Government Pleader, appearing on behalf of the State in all these matters.
11. While the grounds and contentions noticed above on behalf of the petitioners is sought to be elicited in common by all the learned Counsel, Mr. Mahadeva Swamy, learned Counsel has also attempted a new ground by contending that the State authorities who purporting to function under the provisions of Section 95 of the Act are trying to indirectly regulate the activities of the petitioners in mining operations which is an activity exclusively within the domain of the Central Government and covered by the Central legislation, namely, Mines and Minerals (Development and Regulation) Act, 1957 and therefore any interference or action on the part of the State authorities for curtailing or denying the rights of the petitioners in respect of the mineral for extraction and transportation of the same amounts to an action without support in law, in the sense that, such action as it indirectly amounts to regulating the mining operations of the petitioners, an activity covered by the Central legislation and beyond the legislative competence of the State Government and such action is not authorised in law and therefore necessary writs are required to be issued to ensure that such interferences are prevented and so long as the petitioners have secured the compliance of the Act and the Karnataka Minor Mineral Concession Rules, 1994, the authorities cannot interfere with the activities of the petitioners by drawing support from any State Act or Rules.
12. Points urged by Sri D.L.N. Rao, learned Senior Counsel were, firstly, the decision in Writ Petition No. 4563 of 1987 and the connected matters constitutes an authority and applying the law laid down therein, these petitions had to be necessarily allowed; that as against the said decision, the State Government had carried the matter in appeal to the Division Bench, the appeal was dismissed, order of the Single Judge has merged with the judgment of the Division Bench and even further attempt on the part of the State to get over the same by seeking special leave before the Supreme Court having also failed; that the law is now authoritatively settled and has to be followed and applied and the writ petitions allowed on such premise.
13. The second point urged is that even independent of the decision of this Court in W.P. No. 4563 of 1987 and connected matters, on a proper understanding of the provisions of Section 95(1) and 95(2) of the Act and the fact situation that obtains in respect of the land owned by the petitioners wherein the mining operation is carried on, is that, while in some cases it can be safely assumed that such mining operation is one which is akin to an activity of improvement on the land for the purpose of rendering it cultivable or purporting to be for better agricultural use as there is outcrop of rocks and boulders on the surface and unless they are removed, no agricultural operation can be carried on and therefore while the petitioners are in the process of such removal of the rocks on the surface; that if they have to remove it outside and find an incidental use for it to sell it or export it, it cannot be considered as a non-agricultural activity beyond Section 95(1) of the Act, in which event, permission as contemplated under Section 95(2) of the Act is not necessary.
14. It is alternatively contended that even to apply the provisions of Section 95(2) of the Act, there should be a diversion of the land user; that the particular land in question where mining operation are carried on, had never been used for agricultural purpose hitherto and while earlier no mining operation was being carried and as of now, the mining operations are carried on even assuming that mining operation by itself mean constituting an agricultural operation, nevertheless, there being no diversion from an earlier agricultural use to a later non-agricultural use, in which event alone, the provisions of Section 95(2) of the Act are attracted, the petitioners are not obliged to seek and obtain permission contemplated under Section 95(2) of the Act.
15. One another facet of the submission is that assuming in a given case, on facts, permission under Section 95(2) of the Act may assume some significance and importance, it is not for the officials of the Department of Mines and Geology to bring about or ensure compliance with such provisions while considering an application under Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994, for issue of mineral dispatch permits and even if the land revenue authorities propose to take any action for such non-compliance of the requirements of Section 95(2) of the Act, they should do by themselves directly either by issuing necessary notices calling upon the petitioners to secure compliance and even otherwise to proceed with levying penalty or prosecution as contemplated under the provisions of the Act itself and not by issue of communication as at Annexure-H to the officials of the Department of Mines and Geology.
16. It is vehemently urged that in the light of the earlier decision rendered by this Court in W.P. No. 4563 of 1987 and connected matters, even assuming for argument sake is not a precedent, such minimum action is inevitable on the part of the officials of the revenue department as otherwise such action can only amount to an action in violation of the principles of natural justice as the revenue authorities who had hitherto not raised any objection even when the activities of mining had been carried on with their full knowledge and in fact had partaken in the measuring and demarcating of the land earmarked for quarrying operation to the survey authorities and had not taken any exception at that time, cannot at later point of time, even without apprising the petitioners through a communication addressed to the officials of the Department of Mines and Geology and behind the back of the petitioners seek to come in the way of the petitioners in securing the mineral dispatch claims.
17. The main submission of Sri D.L.N. Rao, learned Senior Counsel, who led the arguments on behalf of the petitioners is that the issue is fully and squarely covered by the ruling of this Court, rendered in the batch of writ petitions filed by M. Veeramadhu and Others W.P. No. 4563 of 1987 and connected cases, decided in terms of a common order dated 14-7-1987; that this Court has categorically ruled while rendering the decision in the batch of petitions, wherein some of the present petitioners were also petitioners; that there is no requirement on the part of the persons like the petitioner who are pattadars of agricultural lands for obtaining a permission under Sub-section (2) of Section 95 of the Act for the purpose of carrying on the activity of quarrying to extract black, gray or pink granite; that even on the earlier occasion, the respondents had withheld issue of mineral dispatch permits on lame excuses and by directing persons like the petitioners to approach the Tahsildar and to get a clearance from the Tahsildar for the issue of mineral dispatch permits and when it was contended by the learned Advocate General appearing on behalf of the State that the officers can insist on such compliance by drawing reference to the provisions of Section 95 of the Act, the learned Judge has expressly rejected this submission; that as to whether a permission in terms of Section 95 was required to be obtained by persons like the petitioners who are carrying on the quarrying operations in their agricultural lands and who had sought for issue of mineral dispatch permits, had become an issue therein and that question having been emphatically answered by the Court in favour of the petitioners by rejecting the defence of the State as put forth by the learned Advocate General and holding that persons like the petitioners need not go through the procedure under Section 95 of the Act for carrying on the quarrying operations in the patta lands and a further appeal against this order of the learned Single Judge to the Division Bench having failed with the dismissal of the appeals and even an attempt on the part of the State to take up the matter to the Supreme Court having failed with the rejection of the special leave petitions, the matter has become concluded, the principle laid down by this Court in that batch of cases has become valid law which can be cited as a precedent; that applying such, law to the present cases, all these petitions are to be allowed, endorsements quashed and necessary direction be issued to the respondents.
18. In this regard, learned Senior Counsel has drawn my specific attention to certain paragraphs of the order at page 45 as also page 46. Great emphasis is laid not only by Sri D.L.N. Rao but also by other learned Counsel like Sriyuths S.V. Bhat, Jayakumar S. Patil and M.M. Swamy, appearing on behalf of the petitioners. The precise contents of those paragraphs, on which reliance is placed, are as under:
It was also contented by the learned Advocate General that diverting agricultural land to non-agricultural use would attract the provisions of Sections 95 and 96 of the Karnataka Land Revenue Act, and therefore it should be possible for the State Government to exercise the necessary authority under those provisions to bring to book all private exploitation of granite. The difficulty is where the Government is a part owner of the mineral, as is to be found in Rule 49 of the Rules, it permits the exploitation on payment of royalty. Therefore, it cannot be considered as diversion of land to non-agricultural use.
If that is so, it would not be open to the Government to contend that the private owner is diverting the land use when there is no evidence placed before the Court that in any given case that agricultural operations have come to an end on the land where granite has been exploited by the owner of the land. Therefore, it would not be correct that there should be one standard of land use where Government benefits by claiming royalty as part owner of mineral and there should be another standard where it is not entitled to that royalty in that view of the matter the argument is liable to be rejected.
No Revenue Officer may hinder the owner of the land to exploit his mineral wealth merely because such act may result in the land being used for non-agricultural purposes if such non-agricultural user is not prohibited expressly by any law. It is always a question of fact whether a land has been totally laid waste, unfit for agricultural use on account of the quarrying operations. In fact Sri Laxmikanthraj Urs asserted from the Bar that in every case the quarry occupied only a fraction of the agricultural land and agricultural operations in no way had come to a standstill though in any event on a quarry it was unthinkable to carry on agricultural and therefore the learned Advocate General's argument should be rejected.
I think there is force in that submission. It is not known that any crop can be grown on granite boulders or granite quarry.
19. Sri D.L.N. Rao by drawing my attention to the discussion with reference to Sections 95 and 96 of the Act contained in the decision of the learned Single Judge, submits that the very arguments of the learned Advocate General that in view of the provisions of Sections 95 and 96 of the Act has been expressly rejected by the learned Single Judge and if so, this was an issue answered against the State and sounds the petitioners in the present batch of petitioners being also petitioners in the earlier batch of cases and the decision, the decision even amounts to a decision rendered on a disputed aspect between the very parties and therefore the principles of res judicata is also attracted and the State is now estopped from contending that the State can nevertheless insist on the obtaining permission under Section 95 of the Act, if the agricultural landowners-pattadars even if they start quarrying operations on a portion of the land, which was hitherto not cultivated, being only a boulder or rock. It is the submission of Sri D.L.N. Rao that this is a ratio as can be culled out from the decision relied upon; that it is not a mere obiter as contended by the respondents; that it cannot even be contended that the decision in the case of Veeramadhu passes sub-silentio insofar as the question of requirement of compliance with Section 95 of the Act is concerned, inasmuch as though the petitioners did not as much had raised it as an issue, learned Advocate General in the course of arguments had in fact called in aid Sections 95 and 96 of the Act to defend the interest of the State, particularly in the context of non-issue of mineral dispatch permits to those petitioners as in the present case also and therefore the finding of the learned Single Judge has to be taken as one that arose, considered and answered and if so, there cannot be any escape from the conclusion that the provisions of the Section 95 or 96 of the Act do not apply or operate or affect the activities of the petitioner for carrying on the quarrying operations in the patta lands to extract pink, gray or black granite and the respondents cannot equally interfere nor can withhold the issue of mineral dispatch permits on the premise that the petitioners were required to obtain permission in terms of under Sub-section (2) of Section 95 of the Act.
20. Sri D.L.N. Rao and other learned Counsel for the petitioners have also submitted that this ruling of this Court has been consistently followed by this Court in all subsequent cases; that the very learned Single Judge following the ruling in the case of Veeramadhu had quashed the orders levying fine under Section 95 of the Act on persons like the petitioners who had occasion to quarry granites in their agricultural lands without obtaining the permission for diversion under Section 95 of the Act as ordered in the case of Shakeel Pasha v. N. Sivasailam and Ors. 1987(2) Kar. L.J. 219; that this Court has consistently followed the ruling as referred in the case of Veeramadhu hitherto and the ruling having acquired the status of settled legal position through judicial determination, should not be re-examined at this point of time, but the respondent-State is bound to accept the same and give effect to it without raising a demur of such matters; that in fact respondents are not merely estopped from contending to the contrary but are also liable for action for discarding the ruling and directions that had been issued by this Court in Veeramadhu's case and virtually by acting in contravention of the said ruling by the present impugned action both for issue of the impugned circular dated 7-12-2004 as also endorsement dated 11-1-2001, Annexures-H and F respectively to W.P. No. 2026 of 2005, are required to be quashed.
21. Yet another common argument addressed not only by Sri D.L.N. Rao, but also by other learned Counsel, is that the quarrying activity is carried on only on such part of the agricultural land where there is a granite boulder; that it is an undisputed fact that no agricultural operation can be carried on a granite boulder; that while the removal of a granite boulder on the other hand can facilitate the carrying on the agricultural operation, such removal by itself can never amount to diversion of the land from an agricultural use to non-agricultural purpose, inasmuch as there is no diversion at all, as on such part of the land where the granite boulder or rock is situated, no agricultural operation are hitherto had been carried on at all and for this reason also, the provisions of Sub-section (2) of Section 95 of the Act are not attracted. Submission is that Sub-section (2) of Section 95 of the Act is attracted only where there is diversion and not otherwise and when there was no earlier agricultural operations, there is no diversion from agricultural purpose to non-agricultural purpose.
22. Yet another limb of the argument addressed on behalf of the petitioners on this aspect is that such removal of granite boulder or rock, cutting into pieces and removing it from the land is only to be construed as an activity for effecting an improvement of the land to render it cultivable or for the better cultivation of the land, as contemplated in Sub-section (1) of Section 95 of the Act and therefore the activity is one which falls outside the scope of Sub-section (2) of Section 95 of the Act, in which event also, there is no requirement of obtaining a permission under Sub-section (2) of Section 95 of the Act on the part of persons like the petitioners.
23. Sri Jayakumar S. Patil, learned Senior Counsel appearing for the petitioner in W.P. No. 4800 of 2005, Sri M.M. Swamy, learned Counsel appearing for the petitioner in W.P. No. 5151 of 2005, Sri S.V. Bhat, learned Counsel for the petitioner in W.P. No. 4854 of 2005, as also Sri D.L.N. Rao, have vehemently urged that the respondents are estopped from insisting on the petitioners obtaining a permission in terms of Section 95(2) of the Act either for the purpose of carrying on the quarrying activities or for the purpose of securing mineral dispatch permits to transport mineral from the place of quarry. In this regard, the learned Counsel for the petitioners have drawn my attention not only to the provisions of Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994, which compels persons like the petitioners to obtain mineral dispatch permits for transportation, but also the provisions of Rule 32, which is one providing for securing licence and the proviso to Sub-rule (1) of Rule 32, which expressly examines the requirement of persons like the petitioner obtaining a quarrying licence for their activities of quarrying of mineral in patta lands.
24. Learned Counsel for the petitioners submit that petitioners are required only to comply with the provisions of Rule 42 of the Mineral Concession Rules for obtaining the mineral dispatch permits and nothing else, but nevertheless, the petitioners had also been while applying for mineral dispatch permits for the first time had sought for survey and demarcation of the area; that they also paid the necessary expenses in this regard at the rate of Rs. 500/- per acre of land; that in fact the petitioners have also been paying the royalty though not obliged in law; that the respondents had been quite aware of the quarrying activities of the petitioners in their patta lands carried on for more than 10 years in the case of several petitioners; that the respondents had hitherto never raised any objections for issuing mineral dispatch permits nor had found fault with the petitioners for not obtaining a permission under Sub-section (2) of Section 95 of the Act; that they had not hitherto insisted on the petitioners being required to obtain the permission Sub-section (2) of Section 95 of the Act ever since the decision of this Court in Veeramadhu's case and therefore the respondents are totally estopped from taking such action against the petitioners at this point of time, either for calling upon them to obtain permission Sub-section (2) of Section 95 of the Act or for withholding issue of mineral dispatch permits for want of such permission.
25. Sri M.M. Swamy, learned Counsel for the petitioners in W.P. Nos. 5151, 12395 and 15457 of 2005, has also raised one additional ground and put forth a contention that the action of the respondents in refusing or withholding issue of mineral dispatch permits in respect of a mineral that the petitioners are being extracted from their patta lands and while in the process of transporting it to some other place through the endorsements impugned and on the basis of the circular that had been issued by the Deputy Commissioner, are all actions without authority of law; that the State Legislature does not have legislative competence to regulate the activity of mining either by making any law or by an executive action; that the field of subject of mining and mineral development is a subject which comes within the scope of Entry 54 of List I of Seventh Schedule of the Constitution of India; that the Union Parliament has also enacted the MMDR Act, which covers the field, the State Legislature cannot in any manner seek to regulate or interfere with any of the activity of mining or development of mineral including transportation of such minerals which is an incidental activity related to the main activity of mining and mineral development; that the State Legislature in the guise of the provisions of Section 95 of the Act is indirectly trying to regulate the mining activity, what is prohibited or forbidden expressly cannot be allowed or permitted to achieve indirectly; that even here the role of the State Government is only to the extent that the very enactment gives scope for the State Act as in terms of Section 15 of the Act, which enables the State Government to frame rules and even when the State does so, it acts as an agent of the delegated authority of the Union and not by itself, as the validity of such Rules framed by the State Government can always be tested on the touchstone of scope and object of the provisions of the Act itself, though the State Government undoubtedly gives with certain scope even on the subject of regulation of mines and mineral development under Entry 23 of List II. Here again such power is made subject to the provisions of law made by the Union Parliament and as the subject of regulation of mines and minerals development is already covered by the Central Act and therefore there is no scope for State Government venturing on the same subject by its own regulations; that even while legislating in respect of a subject covered under Entry 45 of List II of Seventh Schedule of the Constitution of India, the Act being one such legislation, even then, any of the provisions under this Act cannot in any manner seek to regulate the activities of mining on the part of the petitioners and therefore it is submitted that the executive action amounting to interference on the part of the respondents in respect of quarrying activities of the petitioner including the transportation of the extracted mineral, in terms of the circular of the Deputy Commissioner and the endorsement issued by the Deputy Director, Department of Mines and Geology, are all actions without the authority of law and therefore deserve to be quashed.
26. Sri M.M. Swamy to support his submission on this aspect, has relied on the decision of the Supreme Court in the case of India Cement Limited v. State of Tamil Nadu , as also the decision in the case of Saurashtra Cement and Chemical Industries v. Union of India AIR 2001 SC 8 : (2001)1 SCC 91 : 2000(7) Supreme 220.
27. Before I take up examination of the rival contentions, let me first dispose of the contentions urged by Sri M.M. Swamy. The submission is that the provisions of Section 95 cannot have any effect or operation insofar as the activities of the petitioner relating to quarry activities viz., extracting minerals and the related activity of transportation of the mineral. The argument could have succeeded if in fact and in effect the provisions of Sub-section (1) of Section 95 of the Act either aimed at regulating or controlling the mining activities of the petitioners or in any way detracting from the right of the petitioners from such activity, which undoubtedly is covered by the provisions of MMDR Act, but in fact and in effect the purpose of Section 95 of the Act in no way seeks to regulate or interfere with the mining activities of the petitioners.
28. Insofar as the enactment of Act is concerned, there is no two opinions that it is a right piece of legislation in the sense that the said State Legislature undoubtedly has legislative competence to make laws. Section 95 is a provision which seeks to regulate the manner of user of lands held or possessed for agricultural purpose. It is a provision which steps in when the lands held for agricultural purpose are sought to be put to other use essentially non-agricultural purpose. The provision in fact is more a regulatory provision than one aimed at checking or controlling the other activity such as mining. The fallacy in the argument is that the provisions of Section 95 operate at a stage when the mining activities had not commenced, the activity is not one covered or regulated under the provisions of MMDR Act or Rules framed thereunder, but the activity was one which is essentially an agricultural activity on land held for agricultural purpose, assessed as such and used as such. In respect of such agricultural lands, it is only the State Government which has legislative competence to make laws including a provision for regulating the diversion of such lands for non-agricultural purpose. The argument is, therefore, not tenable and is hereby rejected. In fact in this view of the matter, it may not even be necessary to examine a question as to whether a State Act becomes bad for the mere reason that it incidentally touches upon a provision of any law made by the Union Parliament and in the light of the principle of pith and substance.
29. The submission of Smt. Suman Hegde, learned Government Pleader appearing for the respondents-State, and officers of the Departments of Mines and Geology and Revenue, in the first instance is that the decision of this Court in the case of Veeramadhu is not an authority for the proposition that the provisions of Section 95 are not applicable to agricultural lands, in the instant cases like patta lands held or owned by the petitioners. The submission is that the applicability or otherwise of the provisions of Section 95 did not arise directly for consideration in the earlier batch of cases; that the Court was not examining the scope and ambit of the provisions of Section 95 of the Act, but the real question that arose in the earlier batch of petitions was about the nature of the rights that the landowners had in agricultural lands known as patta lands in the old Mysore area. The question was being examined mainly in the context of right of the State Government to levy and collect royalty on the exploitation of the mineral in such patta lands by the pattadars; that as to what was the nature of the right such landowners had to carry on the quarrying operations of granite, particularly in the light of such action being violative of the rights of the petitioners, legal rights and contractual and for declaration of such rights. Learned Government Pleader submits that the grievance was put forth by the petitioners in the earlier batch of cases was that inspite of petitioners being ready and willing to comply with the necessary requirements of their part, the revenue authorities by refusing to accept the royalty amount had come in the way of the officials of Department of Mines and Geology in issuing the mineral dispatch permits in favour of the petitioners; that the allegation was that the Department of Mines and Geology was playing mischief by instructing the officials of the revenue department in providing not to receive the royalty amount to create a statement for the petitioners and in such circumstance the aggrieved persons had approached this Court. The complaint was obstruction on the part of the officials of the State Government whether be in the department of forest, mines and geology or revenue, if the right of the petitioners to carry on their quarrying of granite; that there was no requirement of obtaining any transit permit from any body under any law relating to MMDR Act; that this Court only clarified the legal position as it existed in the light of the law as it prevailed at that point of time; that in the present situation, the petitioners are persons who had applied for issue of mineral dispatch permits in terms of Rule 42 of the Mineral Concession Rules, which is a requirement of law; that while issuing such permits, if the officials of the department of mines and geology being aware of the other statutory provisions had merely brought to the notice of the petitioners such provisions and the compliance required on the part of the petitioner in respect of such provisions viz., the provisions of Section 95 of the Act; that if the Deputy Director, Mines and Geology, had issued an endorsement that pending compliance on the part of the petitioners that the statutory requirements, the application for issue of mineral dispatch permits are deferred in terms of the endorsement in question, while no exception can be taken for either characterising the same as illegal or quashing the same, the directions earlier issued by this Court in the case of Veeramadhu cannot be construed as laying down a principle of law or a ratio decidendi of the case for the purpose of understanding the provisions of Section 95 of the Act; that neither the provisions of Rule 42 of the Mineral Concession Rules nor the provisions of Section 95 of the Act had really arisen for consideration before this Court in the earlier batch of writ petitions; that assuming that certain observations made by this Court in the context of submission made by the learned Advocate General by drawing the attention of the Court to the provisions of Section 95 of the Act for the purpose of justifying certain action on the part of the respondents in that batch of cases, which was otherwise found to be not justifiable by the Court and therefore if the Court had observed that the reference to Section 95 of the Act was also of no consequence or of no use to the State for the defence of such action, it can never be said that such a decision is a decision rendered for the purpose of delineating the scope and ambit of Section 95 of the Act; that it is never an authority in law on the understanding of the provisions of Section 95; that it is not a precedent at all as contended by the learned Counsel for the petitioners and therefore the earlier decision cannot be called in aid by the petitioners as a precedent for the purpose of applying the decision in that case or the direction issued in that case to the present petitions, also for disposing of on the same lines.
30. What is essentially urged is that a decision can be called in aid as a precedent only when the decision lays down a legal principle which can be characterised as a ratio decidendi of the case, which is so, only if the question had really arisen for consideration in the sense that it had become an issue which was a requirement to be resolved by the Court and the Court on examination of the question and on an application of the relevant laws and applying the laws to the fact and circumstances of the case, had rendered a decision, laying down a principle of law and only if all these steps are covered, then alone a decision can be called as a precedent or authority and not otherwise. Submission being that the decision was never an authority for the purpose of understanding either the scope of Section 95 of the Act nor even the provisions of Rule 42 of the Mineral Concession Rules.
31. Learned Government Pleader has placed reliance on a good number of authorities for driving home the point and to illustrate what if at all constituted an authority or a precedent and when can be the said that there is a ratio in the case and as to what ratio of the case. The said decisions are:
(1) Saurashtra Cement and Chemical Industries case;
(2) Commissioner of Income-tax v. M/s. Sun Engineering Works (Private) Limited ;
(3) Smt. Somawanti and Ors. v. State of Punjab and Ors. ;
(4) Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. ;
(5) State of Gujarat and Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal and Ors. ;
(6) Divisional Controller, K.S.R.T.C. v. Mahadeva Shetty ;
(7) State of Orissa v. Sudhansu Sekhar Misra and Ors. .
32. Learned Government Pleader, drawing the attention to the order of Justice M.P. Chandrakantharaj Urs in Veeramadhu's case, which occurs at pages 45, 46 and 47 of the order, submits what really fell for consideration before this Court in the said case was as to the nature of the ownership of the land and the land prescribed as patta land in the erstwhile Mysore State also known as Old Mysore area and as to the nature of right such pattadars have in extracting or mining the granite from such lands. This Court for examination of such question had examined the provisions of the Mysore Land Revenue Code, 1888 (for short, 'Revenue Code') in some detail, particularly the provisions of Section 38 of the Revenue Code, under which the subsoil rights even on minerals have been saved in favour of the riotwari pattadars in respect of the land in Old Mysore area and such rights again having been saved under the provisions of Section 70 of the Act and combining the effect of these provisions, which the learned Judge held was that the pattadars continue to retain the right to such notified minerals such as limestone, granite etc., and had continued to be vested in the pattadars in terms of the proviso to Section 38 of the Revenue Code.
33. It is also urged by the learned Government Pleader that the lands in question have been undoubtedly classified as agricultural land in the revenue records; that the petitioners themselves do not dispute the fact that the lands are in fact agricultural lands assessed to the land revenue as agricultural lands; that the mere fortuitous fact that in a portion of such agricultural land, if there is a granite boulder or rock, it will not in any way detract from the fact that this is an agricultural land; that the petitioners are all persons who are undoubtedly exploiting the mineral in their lands not as part of any agricultural land, but for the purpose of quarrying it and for gaining by sale of the minerals, such an activity is definitely not an activity which could be characterised as an activity in the nature of improvement for the better cultivation of the lands or for its more convenient use, in the sense that the activity is not one neither intended nor in realty for the better cultivation of the land, as contemplated in Sub-section (1) of Section 95 of the Act; that at any rate securing the activity of the petitioners by extracting the minerals is definitely an activity within the meaning and scope of Sub-section (1) of Section 95 of the Act, as contended by the petitioners, but on the other hand, an activity definitely a non-agricultural activity amounting to diversion from agricultural purpose; that therefore such activity when it amounts to diversion clearly attracts the provisions of Sub-section (2) of Section 95 of the Act and if a statutory authority while considering the application filed under Rule 42 of the Mineral Concession Rules on being made aware of the existence of the provisions of requirements on the part of the petitioners to comply the same even if they have hitherto not ventured to apprise the petitioners to so comply with the same, neither the petitioner can complain of such an intention through endorsement as one affecting the right nor the action by itself which can be characterised as illegal and that there is nothing illegal and there is nothing illegal or irregular nor even improper in the circular issued by the Deputy Commissioner; that the Deputy Commissioner has only drawn attention of the statutory functionaries concerned to the relevant statutory provisions in force; a circular/notification of this nature on the other hand one for sub-serving the purpose of Section 95 of the Act is one in which there is absolutely nothing wrong or illegal about and therefore there is no occasion for issuing a certiorari quashing the endorsement or circular and if the circular and the endorsements stand the petitioners cannot seek the consequential directions through a writ of mandamus either and therefore the writ petitions are to be dismissed.
34. I have perused the petition pleadings, written arguments filed on behalf of the respondents. Heard at length the learned Counsel for the petitioners and the learned Government Pleader, examined the present situation and the relief sought for by the petitioners in the light of law as is prevailing today and also in the light of the considerable number of authorities cited at the Bar both on behalf of the petitioners as well as on behalf of the respondents and having pondered over the matter in some detail, opine as under:
35. Salmond said in the year 1902 that a judicial precedent speaks with authority in England. I add "it is so even in India even today". But the question is whether the judicial precedent which is available and which can speak with such authority, can be applied to the present cases and if so, by following the law laid down in such judicial pronouncements and on such authority as to whether the present cases can be disposed of. Learned Counsel for the petitioners sing in chorus that the decision of this Court in the case of Veeramadhu is such a judicial precedent, it should be applied and all these petitions allowed on the authority of law as enunciated in the case of Veeramadhu.
36. Learned Government Pleader, on the other hand has a good number of counters with equal vehemence that it is not so; that the decision of this Court in Veeramadhu' case is not a precedent for the present cases; that the question as it arises in the present cases did not arise in such context in the case of Veeramadhu; that the decision is not an authority in law for deciding the present cases; that when the present cases are examined on its own on the merits of the case of the petitioners on applying the law as it prevails as on today, the petitions fail in achieving their objectives of seeking either a writ in the nature of certiorari or consequential mandamus and therefore all the petitions should be dismissed. It is this moot question that is to be resolved.
37. If the decision of this Court in the case of Veeramadhu is a precedent for the present cases, undoubtedly, the petitioners succeed and the petitions should be allowed. Writ as prayed for should be issued. But, I find considerable difficulty, not merely difficulty, but no possibility for issuing such writs. I say so because I find that as contended by the learned Government Pleader, for deciding the present case, the decision of this Court in the case of Veeramadhu is not of much help as an authority or as a precedent, though it can throw considerable light in resolving the controversy.
38. In the present batch of cases, the petitioners are complaining of essentially the inaction on the part of the Deputy Director, Department of Mines and Geology, before whom they had filed applications under Rule 42 of the Mineral Concession Rules and who, while has not passed orders on the applications for issue of what is known as mineral dispatch permits, has apprised the petitioners that they should, on the other hand, obtain the permission as contemplated under Sub-section (2) of Section 95 of the Act and thereupon pursue the matter before him. This is reflected in the endorsements issued to the petitioners, some of which recite either the provisions of Section 95 of the Act or the internal communication dated 17-12-2004 emanated from the office of the Deputy Commissioner of the district addressed to the Deputy Director, Department of Mines and Geology; that the officials of the Department of Mines and Geology are required to satisfy that the applicants have in fact obtain permission for diversion of the land for non-agricultural use i.e., for the purpose of mining or quarrying in the present cases, before issue of mineral dispatch permits and if the applicant had not so obtained the permission contemplated under Sub-section (2) of Section 95 of the Act, mineral dispatch permit will be issued only after the applicant obtains such permission.
39. The petitioners have sought for quashing of these endorsement and the internal communication on the strength of the law laid down by this Court in the case of Veeramadhu. It is that is how the Veeramadhu's case is cited as a judicial precedent that can cover or guide the outcome of the present petitions.
40. The provisions which are involved in the context of the alleged action of the respondents with which the petitioners are finding fault are Rule 42 of the Mineral Concession Rules and Section 95 of the Act.
41. Now let me examine as to how this Court rendered the decision in the case of Veeramadhu and in what context? A detailed reading of the decision of this Court in Veeramadhu indicates that the petitioners in that batch of cases had approached this Court complaining of inaction on the part of the authorities and interference on the part of the officials of the Departments of Revenue, Forest or even officials of the Department of Mines and Geology, indicating that the petitioners were required to obtain necessary permits as contemplated in Chapter III of the Karnataka Minor Mineral Concession Rules, 1969, wherein figure the rules relating to procedure to be followed by persons who had obtained quarrying lease from private persons in respect of such land owned by private persons such as pattadars and on examination of this question, this Court found that the case on hand was not covered by this Chapter as petitioners who are persons who were carrying on quarrying operations by themselves and not persons who had obtained such a lease for quarrying from any other person and that even Chapter IV of the Rules also did not apply, as the Court had on a detailed examination of the nature of the right of pattadars had in the land, came to the conclusion that the State Government did not have any right over the minerals found in the subsoil of patta lands owned by the petitioners and the Chapter being applicable only in respect of quarrying permits in lands wherein was available mineral belonging to the Government and as the mineral was owned by the pattadars themselves, applicability of this Chapter was also excluded and even the provisions of Chapter V where the Government has claimed a share in the mineral that occurs in the lands held or possessed by the riotwari pattadars and the Court having on examination of the nature of the right of the pattadars, the provisions of Section 38 of the Revenue Code, the effect of Section 70 of the Act, as it existed then, having opined that the State Government had no right to share any part of the mineral particularly such as granite that occurs in subsoil of such patta lands and the conditions imposable under Rule 44 occurring in Chapter V of the Karnataka Minor Mineral Concession Rules, 1969 being not available, which condition could have been imposed and would operate only in the case of such mineral owned in full or part by the State and as the action on the part of the respondents in the batch of writ petitions was sought to be sustained in the context of the existence of such rules, which the Court on examination found was not at all applicable, held that the interference on the part of the respondents in the mining activities of the petitioners was not justified, and therefore the respondents were required to be restrained from interfering in any manner in the mining or quarrying operations carried on by the petitioners, except to the extent of compliance with the other applicable laws such as Explosives Act, 1884 or Mining Act provided for and accordingly issued the directions.
42. It is in this context, this Court also opined "that in the present state of law i.e., in terms of the provisions of Karnataka Minor Mineral Concession Rules, 1969, there is no requirement on the part of the petitioners to obtain any transit permit from anybody for transporting the extracted mineral, except to the extent of movement of the vehicle itself and its goods, being controlled by the Motor Vehicles Act, 1988". The Court also took care to observe that the decision would not operate as a precedent in respect of quarrying rights in other areas other than the one discussed in the decision viz., the rights of the pattadars in the riotwari patta lands, which again shows the issue that arose for consideration was the rights of such pattadars in the mineral embedded particularly granite mineral embedded in such lands.
43. Petitioners in the earlier batch of petitions had approached this Court complaining of interference on the part of the officials of the Department of Mines and Geology as also the Revenue Department, particularly on the issue of obtaining quarrying lease and quarrying permits under the Karnataka Minor Mineral Concession Rules, 1969, by the Competent Officer who was so notified through a gazette notification by the State Government and who had been directing the petitioners to obtain permits by filing applications through the Tahsildar having jurisdiction in the area and that the Tahsildar should give the countersign which allows for remitting the royalty to the Government etc., the Tahsildar having refused to oblige the petitioners, the petitioners had in turn complained to the Deputy Commissioner, who had also not responded and the petitioners having failed to obtain what is known as transit permits, had approached this Court for issue of suitable directions to the Deputy Commissioner, Mysore District, to issue permits in accordance with the Rules, so that there were no interference in their activity of quarrying the mineral as well as its transpiration to its destination, which was more often than not meant for export. It is in the context of such grievance this Court examined the nature of the rights of the landowner who is a pattadar in the old Mysore area as is the case of the present petitioners, and opined that the rights of such landowners in the old Mysore area also known as pattadars, who have, insofar as the mineral is concerned, it was not a restricted right; that no interference can be caused by any of the authorities functioning under the State for the extraction of the mineral. It was while defending the action on the part of the State and its officials, the learned Advocate General had called in aid and had referred to the provisions of Section 95 of the Act to justify the interference as well as inaction on the part of the officials of the State by contending that the Section 95 had conferred certain regulatory powers, under which the quarrying of granite also can be regulated; that the rights of the landowner/miners varied from the area depending upon the grant etc.; that there were several restrictions on the rights of such persons in exploiting the mineral even in their own land and on such premise the action was sought to be defended.
44. Such argument on behalf of the State was rejected by this Court in the case of Veeramadhu by pointing out that for the purpose of examining the nature of rights the landowners or pattadars had in respect of the minor mineral in the land, the argument that because of the restrictions found under Section 95 or 96 of the Act, the right of the landowners to exploit the minor mineral in the land is also correspondingly restricted was totally rejected by the Court. The Court on noticing that when once the petitioners before the Court had fully complied with the requirements of Chapter V of the Karnataka Minor Mineral Concession Rules, 1969, such of those rights which the petitioners had in respect of the minor minerals, particularly as saved in terms of the provisions of Section 38 of the Mysore Land Revenue Code, 1888, cannot be whittled down or denied to the petitioners by reference to the provisions of Section 95 or 96 of the Act and as such rejected the argument advanced on behalf the State by the learned Advocate General. The Court noticed that a large number of cases where the landowners were also owners of minor minerals, such landowner or pattadar were as free to exploit that mineral without either requiring permission from any agencies or any permit for quarrying, whether it is ordinary minor mineral or specified mineral, notwithstanding the distinction. The entire thrust and examination was vis-a-vis the rights of the pattadars in respect of mineral and not an examination of the provisions of the Section 95 or 96 of the Act. This Court debarred the officers of the revenue department in causing hindrance or interference with the mining activity of petitioners on the premise that the right of the petitioners therein for exploiting mineral was further subject to the provisions of Section 95 of the Act. The Court on fact accepted the version of the learned Counsel for some of the petitioners that the activity if did not constitute diversion as contemplated under Sub-section (2) of Section 95 of the Act and the activity remained within the scope of Sub-section (1) of Section 95 of the Act, there was no need for obtaining any permission for conversion or diversion etc.
45. This Court also rejected the submission of the learned Advocate General on behalf of the State that the action on the part of the authorities was justified even on the ground of maintaining ecological balance etc., as the Court noticed that in the first instance the observation of the Supreme Court in the case of Rural Litigation and Entitlement Kendra and Ors. v. State of Uttar Pradesh and Ors. , was in the context of quarrying granite in forest area in the State of Uttar Pradesh, which had caused great ecological imbalance in that area, while what was presented before the Court was a situation in the case of the petitioners before the Court and if there was any definite and pointed violations affecting ecological balance and it is pointed out in the pleadings put forth on behalf of the respondents that the matter perhaps could have been considered by the Court but in the absence of any such plea or stand, the argument as not acceptable and it was accordingly rejected. That is how this Court concluded that the petitioners should succeed and as a sequel also clarified that the mining or quarrying operations carried out by the petitioners, as in the present state of the law does not require obtaining permits from anybody except to the extent of movement of vehicle is controlled by the Motor Vehicles Act.
46. It is such observation of this Court, which is very strongly relied upon by the learned Counsel for the petitioners to contend that this Court having clarified that there was no need for obtaining any transit permits for transporting minor mineral exploited by the pattadars in the old Mysore area, the officials of the State Government, whether be in the Department of Mines and Geology or Department of Revenue, are bound by the decision and the decision has become a precedent and therefore these writ petitions are to be automatically allowed followed the decision of this Court in the case of Veeramadhu and have sought for issue of a writ of mandamus besides quashing the endorsement etc.
47. Issue of directions by this Court by clarifying that there is no requirement of obtaining transit permits is construed as law laid down by this Court in the sense that it is the ratio of the case and therefore it becomes the precedent, a decision which is left undisturbed by the appellate forum viz., Division Bench of this Court and therefore by applying the principles of stare decisis the present petitions also should be allowed with directions to the respondents not to insist on obtaining transit permits or to impose any further conditions for compliance, and on the other hand, to issue the same. The subsequent matters brought before this Court by similar persons having allowed, following the decision in the case of Veeramadhu and also the decision in the case of Shakeel Pasha, wherein this Court had occasion to quash the orders/levy of conversion fine by the Deputy Commissioner under Section 95 of the Act, is relied on as a strong circumstance and precedent to hold that in the case of petitioners, there is no requirement of obtaining permission under Section 95 of the Act and therefore the present negative action of the respondents in the form of endorsement and circular and the positive inaction in not issuing mineral dispatch permits are bad in law and appropriate orders/directions should be issued. It is because the decision in the case of Veeramadhu had been followed in the case of Shakeel Pasha and other cases, and all such petitions having been allowed, Sri D.L.N. Rao, the learned Counsel for the petitioners has strongly pleaded that this Court is bound by such decisions for the purpose of disposing of the present writ petitions and therefore the present petitions should also be allowed. In other words, what the learned Counsel has urged is that the doctrine of stare decisis operates and therefore the present writ petitions necessarily should be allowed.
48. Before examining the legal position with regard to the earlier decision of this Court in the case of Veeramadhu being a precedent and the doctrine of stare decisis being attracted, let me examine the present fact situation.
49. Even with regard to the present legal/statutory position, much water has flown under the bridge subsequent to the decision of this Court in the case of Veeramadhu. The complaint of the petitioners as it arises in the present fact situation has to be necessarily examined in the light of the statutory provisions that govern such action as of now and it is here that I notice that while the provisions of the Karnataka Minor Mineral Concession Rules, 1969 has been totally replaced by the Karnataka Minor Mineral Concession Rules, 1994, there has been considerable changes even in the provisions of Section 95 of the Act. While earlier under provisions of the Karnataka Minor Mineral Concession Rules, 1969, there is no requirement for obtaining what is known as mineral dispatch permit, and as noticed by the learned Judge in the case of Veeramadhu, that except for obtaining permit under the provisions of the Motor Vehicles Act, there is no other requirement of law, the present position under Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994 obtaining of mineral dispatch permits is a must, irrespective of nature of right a landowner or pattadar possesses in the mineral which is sought to be transported. This is one major change in the statutory provisions. Added to this, the provisions of Section 95 of the Act has also undergone certain changes in terms of the amendment brought about to this Section subsequent to the decision of this Court in the case of Veeramadhu, particularly Sub-section (3) of Section 95 of the Act as it stands now in terms of Amendment Act No. 2 of 1991. It now reads as under:
95. Uses of agricultural land and the procedure for use of agricultural land for other purpose.x xx xxx xxx (3) Permission to divert may be refused by the Deputy Commissioner on the ground that the diversion is likely to defeat the provisions of any law for the time being in force or that it is likely to cause a public nuisance or that it is not in the interests of the general public or that the occupant is unable or unwilling to comply with the conditions that may be imposed under Sub-section (4).
50. In the light of such changes in the statutory provisions, assuming what all is urged on behalf of the petitioners by their learned Counsel about the decision of this Court in the case of Veeramadhu is to be accepted, still the decision cannot be held to constitute an authority or a precedent for the purpose of understanding the present statutory provisions which govern the fact situation. For this reason, the argument that the decision in Veeramadhu is a precedent for deciding the present writ petitions and applying the doctrine of stare decisis and the present petitions are to be allowed in terms prayed for, has to be straightaway rejected.
51. As noticed above, while the provisions of Section 95 of the Act compelling an occupant of a land assessed or held for agricultural purpose to obtain permission from the Deputy Commissioner on making an application and the Deputy Commissioner being enabled to grant or refuse such permission and taking into consideration the relevant aspect as indicated in this very section and the provisions being a regulatory provision, essentially meant for regulating the use and diversion of land held for agricultural purpose, an order granting permission is the rule and refusal will be an exception and of course and refusal being if the grant of permission is likely to defeat the provisions of any law in force or even if it is likely to cause public nuisance or even if it is in the interest of general public etc., as indicated in Section 95(3) of the Act. It is to be noticed that some of these situations whereunder the Deputy Commissioner may decline permission have been specifically included under Section 95(3) of the Act by the Amendment Act 2 of 1991 with effect from 20-3-1991. It is significant to notice that such situations were not available on the statute book when this Court rendered the decision in the case of Veeramadhu. Assuming for argument's sake and as pointed out by the learned Counsel for the petitioners, that the decision of this Court in the case of Veeramadhu is to be construed as a decision touching upon the provisions of Section 95 of the Act or on the interpretation thereof, which I am of the view is not one touching upon the provisions of Section 95 of the Act, nevertheless, even in such a situation, as the very provisions have undergone legislative changes, the decision cannot be considered as an authority in the light of the present situation i.e., the present Sub-section (3) of Section 95 of the Act and therefore the decision in the case of Veeramadhu is not a binding precedent and therefore petitioners cannot call in aid the doctrine of stare decisis. The petitioners cannot seek for issue of a writ of mandamus in the present writ petitions as had been done by this Court in the case of Veeramadhu.
52. In this regard, I cannot help noticing the considerable environmental hazards that has been created by the indiscriminate acts of quarrying of mines undertaken by such miners, who have ventured to in such agricultural lands which contain good amounts of granite mineral and carrying on the mining activity in a concerted manner more on the lines of an industry than an activity akin to agricultural operations. The mining activity in a land surrounded by lands held and used for agricultural operations, definitely causes considerable damage to the surroundings and also to the agricultural operations in the adjacent agricultural lands. Movement of heavy vehicles to and fro the place of mining, use of explosives and blasting devices, which can have the effect of throwing out pieces of granite rock and boulders on the surrounding agricultural lands, the crushing of granite into jelly, an activity which generates fine powder of granite which when settles around the surrounding lands and crops and plants, not only greatly affects fertility of the lands, but virtually kills the crops and plants as the sediments of mineral when gets deposited on the surface of leaves, porosity of leaves will be lost, hinders the photosynthesis activity, the life sustaining action generated by leaves and virtually kills the very plant itself. These are all some of the consequences in the nature of public nuisance, which the Legislature has advisedly introduced to the provision of Section 95(3) of the Act, obviously having noticed the increase of such incidents and phenomenon and as a remedial measure to check such negative developments. Even a diversion which would defeat the provisions of any law i.e., the permission to convert a land held for agricultural purpose to non-agricultural purpose, if such diversion can have the effect of contravening any other statutory provision, for example, if certain sectors are earmarked as greenbelt areas, the growth of vegetation in such sectors should be retained and the lands located in such sectors cannot be diverted for an activity which is not essentially an agricultural activity.
53. While on this aspect I would like to examine and dealt with another facet of the argument advanced by the learned Counsel for the petitioners viz., that the respondents are virtually estopped from issuing notices and also circular as issued by the Deputy Commissioner circulated to the Deputy Director of Mines and Geology, on the premise that on earlier occasions the authorities had responded in favour of the petitioners by saying that the revenue authorities have no objection for issuing of mineral dispatch permits by the Department of Mines and Geology, subject to the applicants complying with the other requirements of law, and when the revenue authorities had issued such a clarification earlier inspite of being aware that the petitioners had not obtained permission as contemplated under Section 95(2) of the Act, the respondents cannot now go back on such stand which they had themselves taken and had also not objected to for issuing of mineral dispatch permits by the officials of Department of Mines and Geology on earlier occasions. What is submitted is that the respondents are virtually estopped by their own conduct from now apprising the petitioners that they are required to obtain a permission as contemplated under Section 95(2) of the Act. Another facet of the argument advanced by the learned Counsel for the petitioners is that if the respondents themselves had earlier conducted in a manner that there was no need or necessity on the part of the petitioners to have sought for and obtained a permission under Section 95(2), it is obvious that the activity is either one within the scope of Section 95(1) or that there is no diversion, as contemplated under Section 95(2) and in such a situation, if the authorities would like further investigation into the matter and take any action, it was incumbent upon the authorities to issue notices to the petitioners for such purpose, hold enquiry and then pass suitable orders, but without following such procedure, the respondents cannot in the first instance issue a circular and notice, impugned in these writ petitions, and come in the way of the petitioners obtaining mineral dispatch permits.
54. The argument is not tenable and cannot succeed, firstly for the reason that there is no estoppel against statute. A mere conduct or manner in which the officials of the department of revenue or Department of Mines and Geology function in itself cannot be a criterion as to the applicability or otherwise of a statutory provision like Section 95 of the Act. Assuming for argument's sake that the authorities had on an earlier occasion taken a stand which is not fully in consonance with the provisions of Section 95, the authorities are not pinned down to pursue such erroneous action or inaction and cannot be compelled to keep pursuing such actions which are not fully in consonance with or requirement of the provisions of Section 95 of the Act, even after they have realised their earlier follies. The working, the operation, the enforceability of a statutory provision cannot be contingent on the understanding or diligence and the manner of functioning of the statutory functionaries. A statutory provision operates on its own and has the force of law the moment the competent Legislature has enacted it and brought into effect by complying with such other constitutional and procedural 'requirements and is not at the mercy of any of the officials functioning as statutory functionaries under the enactment or provisions of law, for its operation and applicability.
55. Even on the argument of want of opportunity to the petitioners, I am of the view that the argument cannot succeed as the petitioners have in fact been apprised of the requirement by the very circular in which they come to know about the statutory requirement and notice apprising that they should not carry on the activity unless they have complied with the requirement of law. Here again in the matter of operation of statutory provisions, the principles of compliance or non-compliance of the requirement of natural justice does not arise, as the very existence of statutory provision is a notice to all concerned and those whom the statute governs and it is presumed that every, person is aware of the law and action is always taken on such premise and not only after a person is put on notice about the existence of such statutory provisions.
56. But, I find more, as the decision in the case of Yeeramad.hu, does not even constitute an authority or precedent for the fact situation in the present writ petitions. The grievance of the petitioners in the present batch of petitions is in the context of non-issue of mineral dispatch permits by the Competent Authority in terms of Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994 inspite of the petitioners having complied with all other requirements of statutory provisions for issue of such mineral dispatch permits and inspite of the petitioners having the right of ownership on the mineral that they are exploiting and intend to transport. Here again what is pointed out is because of the communication dated 7-12-2004 from the Deputy Commissioner, Chamarajanagar District, addressed to the Deputy Director, Department of Mines and Geology, instructing the Deputy Director to ensure before issue of permits that the persons seeking (mineral dispatch) permits have obtained the conversion of the land where the mining activity is being carried on in terms of the provisions of Section 95 of the Act and if not to ensure compliance of the Act before issue of permits etc. The Competent Authority has now not obliged the petitioners for issue of mineral dispatch permits and therefore a writ should be issued etc., for not only quashing the communication from the Deputy Commissioner to the Deputy Director and to quash the communication from the Deputy Director to the petitioners, in such of those cases where they have been issued with, but also for issue of mandamus to the Deputy Commissioner in all the cases to direct the Deputy Director to issue mineral dispatch permits without insisting on the permission for conversion etc.
57. It is no doubt true that if the petitioners had applied for issue of mineral dispatch permits under Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994 and if the petitioners on their part complied with all the requirements of law and the Competent Authority who is under an obligation to issue mineral dispatch permits on the petitioners securing all compliance is still not acting then a writ is issued without much ado, unless the Competent Authority has justified the reason or cause for not issuing the mineral dispatch permits.
58. Though there is some similarity in the situation as it prevailed in the case of Veeramadhu and as of now, in the sense that on both the occasions the petitioners had approached this Court for relief, particularly as inaction on the part of the respondents-officials of the State - had resulted in the petitioners being not able to move the extracted minerals to the desired place from where they wanted to export the mineral, the similarity ends there. While in the earlier batch of petitions, there was no statutory requirement of obtaining a mineral dispatch permit as is now under Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994, examination was also about the nature of the rights of the petitioners had in the mineral that they had exploited as found and discussed in the case of Veeramadhu, whereas it is not so in the present petitions. Now, there is a requirement in law to obtain a mineral dispatch permit. In the context of issue of mineral dispatch permits under Rule 42, the Competent Authority on being apprised by another statutory authority of the Government functionary under the Act (Karnataka Land Revenue Act) has brought to the notice of the Competent Authority that persons who apply for issue of mineral dispatch permits if are required to ensure certain other compliance and the requirement under the Act, particularly under Section 95 of the Act, the Competent Authority may ensure observance of such compliance before issue of mineral dispatch permit in favour of such persons. In the present action of the respondents, questioned by the petitioners before this Court, the authorities have expressly referred to the provisions of Section 95 of the Act, a provision which, if required to be complied with and if not complied would come in the way of the petitioners obtaining mineral dispatch permits, even under the Karnataka Minor Mineral Concession Rules, 1994 and in such a context, the petitioners have sought for relief.
59. It is no doubt true that the learned Counsel for the petitioners have made fervent pleas that the persons like the petitioners carrying on the mining operations, particularly by extracting granite being harassed, having faced unprecedented difficulties, miseries and also being subjected to considerable harassment at the hands of the officials of the Department of Mines and Geology as also revenue department, not to mention the officials of the Forest Department and if the petitioners were to be told that they should secure compliance with the provision of Section 95 of the Act, it only increases the hardship, misery and harassment and therefore it is only appropriate for this Court to direct the respondent to issue mineral dispatch permits even without the respondents insisting on such compliance on the part of the petitioners and the requirement of Section 95 of the Act, I am afraid I cannot accept a submission of this nature only because it is capable of causing further hardship or difficulties to the petitioners, if they have to obtain a permission in terms of Sub-section (2) of Section 95 of the Act.
60. It is no doubt true that individuals who are required to comply with law are always put to considerable hardship, difficulties and miseries and even to harassment many a time at the hands of lethargic or even unscrupulous public servants, but that by itself cannot be a criterion for giving a go-bye to the statutory provisions which are all enacted by the Legislature for common good or public good, though it may nevertheless cause the individual a little hardship or inconvenience. Compliance with requirements of law is not tested on the touchstone of personal hardship and difficulties, but on the touchstone of statutory provisions, including fundamental rights, existence of any arbitrary or vindictive action on the part of the officials of the State or even their inaction in the sense failure of duty on the part of the officials vis-a-vis corresponding right in favour of the citizen.
61. The ruling of this Court in the case of Veeramadhu, if at all can be sought to be applied as a ruling which lays down a ratio amounting to determination and declaration of rights of the landowners like the pattadars in the old Mysore area vis-a-vis the minor mineral which exist in such lands. If there is a dispute or debate in the context of which question that arises is one of determination of the rights of such persons, the ratio of the decision of this Court in the case of Veeramadhu, undoubtedly constitutes a precedent and can be applied. But insofar as the argument that observations of the Court in the context of provisions of Section 95 of the Act is also a ratio in the case of Veeramadhu and therefore constitutes a precedent and has to be applied to the present situation and the present cases also and the present petitions are required to be disposed of in terms of directions issued by this Court in the case of Veeramadhu is concerned, I am afraid the arguments on the face of it fails and has to be rejected straightaway for the reason that this Court was not considering the scope and extent of applicability of the provisions of Section 95 of the Act, in the context of issue of mineral dispatch permits as in the present cases. In fact either in the impugned notice and communication to the petitioners in the case of Veeramadhu or in any other communication, the provisions of Section 95 of the Act had been specifically referred to as a provision non-compliance of which had come in the way of the authorities. On the other hand, the provisions of Section 95 of the Act were incidentally called in aid by the learned Advocate General to defend the action of the respondents in causing interference vis-a-vis the rights of the petitioners to exploit minor minerals in their lands. The issue was the right of pattadars in patta lands in respect of minor minerals containing in such lands. The decision is on this issue and not on the scope, extent and applicability of Section 95 of the Act. At any rate, I am of the clear view that for understanding or interpreting the provisions of Section 95 of the Act, the decision of this Court in the case of Veeramadhu, neither lays down any ratio nor the decision has the status of a precedent in respect of such ratio nor was this Court even seized of the question of examining the provisions of Section 95 of the Act as such.
62. On the other hand, in the present batch of cases, the Deputy Commissioner who in fact is the Competent Authority under the provisions of Section 95 of the Act to accord permission for conversion or diversion of the land for non-agricultural purpose has forwarded the communication pointing out the very provision that the persons like the petitioners are required to comply with this provision whenever there is diversion of land from agricultural use to other use and if the officials of the department of mines and geology were to issue mineral dispatch permits, they were to, before issue of such permission, ensure compliance of requirement of statutory provisions of Section 95 of the Act.
63. There is an express reference to the provision of Section 95 of the Act by the Deputy Commissioner and this in turn is also made known to the petitioners. It is no doubt true that if this communication from the Deputy Commissioner is one which deserves to be quashed, perhaps as a consequence, a writ of mandamus can also be issued to the Deputy Director, Department of Mines and Geology to ensure issue of mineral dispatch permits, if other requirements of law are complied with. But, the question is whether the communication one which is amenable to the certiorari jurisdiction of this Court?
64. There is nothing illegal or even irregular in this communication. It is not in contravention of any statutory provisions. It is a communication which only apprises the another statutory functionary about the existence of Section 95 of the Act, requirement of compliance with by such persons who are required to obtain permission under Section 95(2) of the Act. On the face of it, there is nothing wrong at all in this communication. No occasion to issue a writ in the nature of certiorari as sought for.
65. Now to the other part. If the Competent Authority on being apprised by the Deputy Commissioner in turn communicates to the petitioners asking them to ensure compliance before they can insist and obtain mineral dispatch permits, here again, I find nothing wrong at all in such action on the part of the authority. The statutory provision is one to be observed and adhered to and not one to be violated or flouted. A person seeking for issue of mineral dispatch permits was also required to comply with the requirement of Section 95(2) of the Act and if such person is not aware of the provision and also asked to ensure compliance before issue of the mineral dispatch permit, there is absolutely nothing wrong at all about such communication. In fact the public authority is only performing its duties in so insisting. If so, it cannot be said that the action on the part of the Competent Authority in not issuing the mineral dispatch permits pending securing the permission for diversion or conversion of the land under Section 95 of the Act, is either an illegal action or an inaction.
66. It should be noticed that the provisions of Section 95 of the Act are regulatory provisions. It is not one to curtail or take away any of the rights of the petitioners, particularly in respect of the rights over the minor minerals which a pattadar has in his patta land, but a general regulatory provision which occurs in the Act governing agricultural land also known as lands assessed to land revenue. There is no dispute or doubt that even patta lands are lands assessed to land revenue and come within the scope of Section 95 of the Act. These are all lands assessed or held for the purpose agriculture and as contended by the learned Government Pleader, it is not necessary that the land in fact should have been actually being used for agricultural purpose in the sense it is being cultivated, but if it was so held for agricultural purpose in the sense it had been assessed to land revenue earlier, then, if the owner intends to use the land for such other purpose as a non-agricultural purpose, the landowner is required to apply for permission to the Deputy Commissioner who may on examination of the relevant rules and other statutory provisions, grant or refuse permission as the case may be. It is not only the case of the petitioners that it is not possible or impossible for them to obtain such permission, but the argument is that: (1) the provision is not applicable to in the light of the decision of this Court in the case of Veeramadhu; (2) the respondents cannot insist on this; and (3) that it creates further misery, problem, inconvenience, and even hardship to the petitioners if they were driven to the plight of seeking permission from the revenue authorities.
67. The first argument proceeds on the premise that on facts the particular stretch of land wherein occurs a rock or granite boulder, had hitherto not being used for agricultural purpose in the sense that no agricultural activity could have been possibly carried on and therefore even to render it fit for agricultural use, there will be a need for removing the rock portion if it is only on the surface and if it is little deeper, upto the extent to which it has to be so removed and in such an event, it can only amount to rendering the land for better cultivation or in the alternative, there is no diversion from an agricultural purpose in the sense as hitherto no agricultural operations have been carried on in that stretch of land, an activity in the nature of mining in the sense of removing the boulder of granite will not amount to a diversion at all and therefore Sub-section (2) of Section 95 of the Act is also not applicable. The argument is that it is either covered under Sub-section (1) of Section 95 of the Act or it does not come within the scope of Sub-section (2) of Section 95 of the Act, when alone the requirement of permission crops up.
68. These arguments I am unable to accept and as rightly submitted by the learned Government Pleader, admittedly the petitioners are carrying on quarrying activities for a considerable length of time on the particular stretch of land in question, which by no stretch of imagination can be called either an agricultural activity or as an activity for better cultivation of land or even it is more convenient to use for the agricultural purpose and therefore the cases of petitioners are clearly not covered under Sub-section (1) of Section 95 of the Act.
69. With regard to the argument that it is not a diversion as no agricultural operations had been carried on the particular stretch of land hitherto and therefore there is no conversion or diversion, this argument also fails for the reason that it is not the requirement of Sub-section (2) of Section 95 of the Act that only when agricultural operation should have been carried on in the particular land, whereupon only it amounts to conversion, if on such stretch of land quarrying activity is started. The requirement is that if the land is held for agricultural use or assessed for agricultural purpose, compliance with Sub-section (2) of Section 95 of the Act is a must and an activity in the nature of quarrying granite or mining activity is undoubtedly a diversion from an agricultural activity. Therefore, Sub-section (2) of Section 95 of the Act is clearly attracted to the fact situation of the petitioners. If such is the fact situation, the requirement of law cannot be avoided; that the activity if is being carried on without compliance of this requirement of law, has been noticed by the authorities who administer such provision and if such statutory authorities bring to the notice of the other statutory authorities, who may be performing in other enactment such as Karnataka Minor Mineral Concession Rules, 1994, apprising them to ensure compliance, by persons like the petitioners, of the requirement of Section 95 of the Act, before issue of mineral dispatch permits, I do not think there is any violation of any law or statutory provisions or any objectionable conduct or act on the part of the authorities functioning under the Act. If on the other hand, a writ as sought for by the petitioners is to be issued by this Court, it only amounts that the respondents are compelled to act in a manner to give a go-bye to the statutory provisions or to overlook the requirement of law and to issue a permit of the nature of mineral dispatch permit, even when the authorities have reservation for issue of such permits due to non-compliance by the petitioners with such other statutory requirements which are attracted to the situation. It is for this reason, I am of the view that the decision of this Court in the case of Veeramadhu is not a precedent which has to be applied to the present situation and petitions cannot be disposed of in terms of the said decision.
70. It is no doubt true that the decision in the case of Veeramadhu was followed by this Court in many subsequent cases that had come up before this Court and relief extended to persons like the petitioners; that even under the present cases, this Court had issued interim orders whereunder the respondents had been directed to issue mineral dispatch permits in favour of the petitioners even before the disposal of the writ petitions and the matters were taken up for consideration when the petitioners wanted issue of further interim directions for transporting the fresh extractions and were in need of fresh mineral dispatch permits and other petitioners who had approached this Court for the first time had also sought for issue of such interim directions and as I found that the issue of interim directions and this relief going much beyond the relief that could be granted in the main petition, these petitions were taken up for disposal on merit itself rather than keep issuing such interim directions. It is no doubt true that the learned Counsel for the petitioners have in chorus urged that this Court should follow the decisions of this Court rendered earlier where in the directions issued in cases consistently following the decision in the case of Veeramadhu and therefore applying the doctrine of stare decisis this Court should issue directions of like nature in the present cases also. Some learned authors in fact have opined that for invoking the doctrine of stare decisis, it is not necessary that an earlier decision should be an authority in the nature of binding precedent (See Precedent in Indian Legal System by Dr. Mr. A. Laxm Nath, published by Eastern Book Company, Chapter II - Stare Decisis in Indian Courts and Incidental Aspects) I find even for invoking the doctrine of stare decisis, there will necessarily has to be an earlier decision of the Court which in turn constitutes a precedent and if there is no decision which is precedent, the doctrine of store decisis is not attracted at all.
71. A decision of the Court to become a precedent must be a decision which has been rendered on examination of the relevant issues that arise for determination in the case on applying the relevant provisions of law and wherein has evolved a legal principle which can be termed as a ratio of the case which then becomes a precedent.
72. The issue should have arisen in the case. The examination of a particular statutory provision or other legal provisions should have been necessary for the purpose of deciding the case and the very principle evolved should have been applied in determining the case and in the decision of the case. If the issue that arises is something else and decision is rendered on an issue not very germane, relevant or necessary for the decision of the case, it is virtually a decision rendered sub-silentio and does not attain the status of a precedent.
73. The theory of merger wherein a judgment of a subordinate Court gets merged with the judgment or order of the superior Court also cannot elevate the status of a decision rendered by the lower Court to that of a precedent until and unless, the order passed by the lower Court itself was one where under the principle of law as is required to constitute a judicial precedent had been evolved and the Appellate Court has being conscious of this principle of law has either affirmed or varied the same. If the decision of the subordinate or the lower Court is not a precedent by itself, the decision rendered by the Appellate Court does not become a precedent automatically, until and unless, the Appellate Court has independently evolved the principle and has applied for its decision.
74. As I am of the view that the decision of this Court in the case of Veeramadhu does not constitute a precedent for the purpose of present writ petition, the doctrine of stare decisis is also not attracted and it is therefore I am not inclined to issue directions as sought for by the learned Counsel for the petitioners in terms of the directions as had been issued either in the case of Veeramadhu or subsequent decisions rendered by this Court following this decision in the said cases.
75. One another submission made by Sri D.L.N. Rao, learned Senior Counsel appearing for the petitioners is that the decision of this case in Veeramadhu cannot also be characterised as passing sub-silentio on the aspect of interpretation of the provisions of Section 95 of the Act; that it is not as though the Court was neither aware of the implication of Section 95 nor had the attention of the Court not been focussed on the scope of this provision; that this Court while examining the specific defence put forth by the learned Advocate General who argued the matter on behalf of the State, that the impugned action in that case was sustainable and can be defended by calling in aid or by drawing attention of the Court to the provisions of Section 95 of the Act, had while dealing with such submissions expressly rejected the argument of the learned Advocate General; that the said argument cannot come to the aid of the respondents to sustain their action in either not accepting the royalty payable in respect of mineral extracted by them from patta land or in any way interfering with their activities of extracting the mineral granite from the patta lands. Therefore, the learned Senior Counsel submits that the decision of this case in Veeramadhu constitute an authority for the proposition that the provisions of Section 95 cannot be called in aid by way of defence for defending the interference or even in not providing the mineral dispatch permits to the petitioners. Learned Counsel submits that if the decision of this case in Veeramadhu is an authority on this proposition, it is definitely a precedent and therefore can be relied upon by the petitioners in the present case for seeking issue of a writ in the nature of mandamus to not only compel the officials of the Department of Mines and Geology to issue mineral dispatch permits but also to seek for a restraint order against the officials of the department of revenue like the Deputy Commissioner etc., from giving effect to the opinion and intention as expressed in the impugned communication.
76. To the extent the learned Senior Counsel contends that the decision of the case of Veeramadhu does not pass sub-silentio vis-a-vis the interpretation to be placed on the provisions of Section 95 of the Act is a correct submission but not because of the decision of this case in Veeramadhu constitute an authority or a precedent in understanding the provisions of Section 95 of the Act, but because it does not constitute an authority and as it does not become a precedent for the present writ petitions for the purpose of petitioners to seek a writ of mandamus as sought for in these writ petitions.
77. I have discussed earlier as to how the observation of this Court on the manner and effect of the provisions of Section 95 of the Act which was called in aid by the learned Advocate General to sustain the impugned action on the part of respondent in that case and which was rejected by this Court does not constitute the ratio decidendi in Veeramadhu's case. The observation if at all at the best can constitute obiter dicta and not the ratio, as in the first instance, the question of examining and interpreting the provisions of Section 95 did not arise directly in the case Veeramadhu and secondly, even otherwise the provision of Section 95 as it stands now has undergone considerable legislative changes and therefore as noticed earlier, even assuming for argument's sake that the decision of this case in Veeramadhu was an authority on the understanding and interpretation of Section 95 of the Act as it stood then, it is not and cannot be so as of now in view of the changes in the very section.
78. I must add a note of caution while on this aspect. (Article 141 of the Constitution of India). There is considerable confusion prevailing in this country and in judicial circles on the concept of precedent, particularly in the light of the provisions of Article 141 of the Constitution of India. While under Article 141, a law as declared by the Supreme Court in the sense as interpreted is the law of the land and binding on all the Courts even when such law is not applied or applying the very interpretation, the case is not decided i.e., the result of the case being not based on the very law as declared by the Supreme Court, the position is vastly different in the case of High Courts for the purpose of a decision to become a precedent and to be followed in the subsequent cases. For a decision to become a precedent, there should be necessarily a ratio decidendi in the case. The case should have been decided on applying the ratio as laid down in that case; that the ratio decidendi is possible only when the facts and circumstance arise in that case; that has become an issue and for determination of which issue, the provisions of law and the principles of law is employed and applied. If any of these ingredients are not present, the decision does not become a precedent and cannot be called in aid as an authority to have a binding force on the very Court or Courts subordinate in deciding subsequent cases by calling in aid the doctrine of stare decisis.
79. Lord Dunedin in his famous passage observed thus:
General observations cannot decide individual cases. In order that a certain proposition of law as judicially expounded even have the binding effect of ratio decidendi it must be relatable to the facts found material for the decision and the decision itself.
(See Precedent in Indian Legal System by Mr. A. Laxm Nath, published by Eastern Book Company, Chapter IV - ratio decidendi at page 40).
This passage is often quoted by the Courts and jurists including the great jurist H.M. Seervai at page 104 of Seervai on Constitutional Law in India. Lord Denning - Master of Rolls - has followed this observation of Lord Dunedin in his subsequent judgments.
80. Therefore, while even obiter dicta of the Supreme Court decisions are elevated to the status of law as declared under Article 141 of the Constitution of India and therefore the High Courts are not confronted with the arduous task of extracting the ratio decidendi of the decision of the Supreme Court to cite it as a precedent, the position with regard to the High Courts themselves is vastly different and the conventional understanding of the concept of a precedent necessarily applies when a decision of the High Court is cited as a precedent and as a binding authority. If such a test is applied to the decision of this Court in Veeramadhu, I am of the very clear opinion that the decision does not constitute a precedent or binding authority for the proposition as canvassed by the learned Counsel for the petitioners particularly for understanding the provisions of Section 95 of the Act and it is for this reason that I have rejected the submissions.
81. To sum up, a land classified for agricultural use in the revenue records under the provisions of the Act if is sought to be used by a person for mining operations and if such a person has applied for issue of a mineral dispatch permit under the provisions of Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994 and the authority to issue the permit at the instance of the Deputy Commissioner functioning under the provisions of the Act enquiries such a person as to whether the person had obtained permission for diversion of the user of the land to a non-agricultural purpose like the mining operation and insists that if the person has not already obtained the same, issue of mineral dispatch permit will be deferred pending obtaining such a permission, then I find there is nothing wrong either in the action of the authority functioning under the MMDR Act and Mineral Concession Rules, 1969 in deferring the issue of mineral dispatch permit nor anything wrong in the communication by the Deputy Commissioner to such authority apprising him to insist on the obtaining of permission by such person and therefore neither a writ of certiorari can be issued to quash the internal communication from the Deputy Commissioner to the Deputy Director, Department of Mines and Geology nor a writ of mandamus can be issued to the Deputy Director, Department of Mines and Geology to compel him to issue mineral dispatch permits even if the person who has sought for issue of the same had not obtained permission for diversion of the use of the land for non-agricultural purpose.
82. In the result, none of the contentions urged by the learned Counsel for the petitioners merit acceptance and are hereby rejected. Writ petitions fail and are accordingly dismissed. Interim orders granted earlier are vacated. Rule is discharged in those cases where Rule is issued. All these writ petitions are accordingly dismissed.S