Karnataka High Court
M/S Shamalsha Giridhari Mineral Co., vs The State Of Karnataka on 2 August, 2013
Equivalent citations: 2013 (4) AKR 491
Bench: Chief Justice, B.V.Nagarathna
1 R
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 2ND DAY OF AUGUST, 2013
PRESENT
THE HON'BLE MR. D.H.WAGHELA, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.P.No.39926/2012 (GM-MMS).
BETWEEN:
M/S SHAMALSHA GIRIDHARI MINERAL CO.,
POST BOX NO.47, NEAR NH4 BYE PASS CROSS,
KARWAR ROAD, HUBLI-580024,
REPRESENTED BY ITS GPA HOLDER,
SRI SHARANAPPA RESIDENT OF
HUBLI . ... PETITIONER
(BY SMT: S.R.ANURADHA, ADV.)
AND:
1.THE STATE OF KARNATAKA,
THROUGH SECRETARY / COMMISSIONER,
REVENUE DEPARTMENT,
VIDHANA SOUDHA,
BANGALORE-560 001.
2.THE DEPUTY COMMISSIONER,
RAICHUR DISTRICT,
RAICHUR-584 101
3.THE ASSISTANT COMMISSIONER,
LINGASUGUR SUB-DIVISION,
LINGASUGUR DIST: RAICHUR-584 101.
4.THE TAHASILDAR,
LINGASUGUR,
DIST: RAICHUR-584 101. ... RESPONDENTS
(BY SRI: R.G.KOLLE, AGA)
*****
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
THE RECORDS IN W.P. 7604/2010.
THIS PETITION BEING RESERVED AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, NAGARATHNA J.,
MADE THE FOLLOWING:
ORDER
This writ petition raises a short, but interesting question. Succinctly stated, the issue is, as to whether the second respondent-Deputy Commissioner, Raichur, was justified in demanding compounding fee under Rule 107-A of the Karnataka Land Revenue Rules, 1966 (hereinafter referred to as "Rules" for the sake of brevity) made under the Karnataka Land Revenue Act, 1964 (hereinafter referred to as "the Act") in relation to sub-section (4) of Section 96 of the said Act. Annexure-A, the order dated 31/07/2012, is impugned in this writ petition.
2. The relevant facts of the case are that the petitioner was granted a quarrying licence on 03/06/2000, whereby it was allowed to extract pink granite from an area admeasuring 18.22 acres of 'patta land'. Similar quarrying 3 licence was granted to the petitioner on 24/05/2002 to extract pink granite in an extent of land admeasuring 11.34 acres. The third quarrying lease was granted to the petitioner on 06/08/2002 for extraction of pink granite from an area admeasuring 4.32 acres of land. These three extents of lands over which quarrying leases were granted are ownership or 'patta lands' and agricultural lands. The petitioner commenced quarrying activities on these lands without seeking conversion for non-agricultural use in terms of Section 95 of the Act. It appears that, at that time, the respondent-authorities also did not insist on conversion of lands for non-agricultural purposes. The petitioner surrendered the quarrying licences in respect of these areas except one acre from each of the quarrying licences on 06/12/2004. Therefore, from the date of issuance of quarrying licences till the surrender was effected in the year 2004, no conversion of lands was sought by the petitioner. Subsequently, the respondent- authorities demanded conversion charges towards non-agricultural use and also compounding fee and 4 penalty. The conversion charges were demanded in respect of all the areas granted for quarrying. Show-cause notice dated 21/04/2009 and also circular dated 28/07/2009 were the subject matter of W.P.No.7604/2010 filed by the petitioner, which was disposed of on 08/11/2010 by a Division Bench of this Court permitting the petitioner herein to make a representation with regard to its grievances on the demand made for compounding fee. While so observing, the Division Bench set aside the demand actually made with regard to compounding fee and penalty. As far as the demand for conversion charges are concerned, the writ petition was dismissed.
3. Subsequently, the petitioner made a representation dated 11/12/2010 to the Tahsildar, Lingasugur Taluk, Raichur District, and on the said representation, the Additional Deputy Commissioner, Raichur, notified the petitioner in order to hold an enquiry with regard to the directions issued by this Court on compounding fee and after hearing the petitioner, the impugned order dated 5 31/07/2012 was made. A direction is also sought to respondent for conversion of the remaining land under the quarrying licence.
4. Smt. Anuradha, appearing for the petitioner contended that the conversion fee on the entire land granted for the purpose of quarrying under three licences has been paid pursuant to the order of the Division Bench passed in W.P.No.7604/2010 and the interim order passed in this writ petition. The only bone of contention between the parties is with regard to compounding fee, which has been demanded under Section 96(4) of the Act. That the lands in respect of which the quarrying licences have been issued are patta lands and agricultural lands situated in Raichur District. That having regard to the decision of this Court in Shakeel Pasha V/s. N.Sivasailam and others (1987(2) KLJ 219) conversion of patta lands for non-agricultural purposes is not mandated under Section 95(2) of the Act, when it is to be used for extraction of any mineral, such as granite as in the instant case. She stated 6 that the said legal position was altered in the decision of a Division Bench of this Court in the case of M.Kokila V/s. State of Karnataka represented by its Secretary, Department of Revenue and others (ILR 2009 Kar. 2583). Therefore, at the time when the quarrying licences were issued to the petitioners, Shakeel Pasha was holding the field and therefore, the petitioner was not required to seek any conversion under the provisions of the Act. However, after the decision in M.Kokila, conversion has been made a mandatory requirement even with regard to carrying on quarrying activities in patta lands. Therefore, the conversion charges have been paid for the entire extent of lands of the petitioner even though subsequently quarrying licences in respect of major portion of the land was surrendered. Since in the earlier writ petition filed by the petitioner, the Division Bench of this Court has upheld the levy of conversion fee or fine, the petitioner has no grievance with regard to payment of the said conversion charges, which has in fact been paid pursuant to the order of this Court. However, the second respondent was not 7 entitled to demand compounding fee from the petitioner, as the petitioner at the relevant point of time i.e., when the quarrying licences were issued and till the decision in M.Kokila, was entitled to carry on quarrying activities without keeping the patta lands converted for non- agricultural purposes. Hence, sub-section (4) of Section 96 is not applicable is the submission.
5. Elaborating the said submission, she stated that as far as the areas coming within the erstwhile old Mysore State is concerned, the owner of the patta land is deemed to be the owner also of mineral on or beneath the land. Therefore, conversion for non-agricultural purpose was not required in those areas. As far as the areas within Old Madras Province is concerned, the State was considered to be the owner of minerals in respect of lands including the patta lands and therefore, conversion of land was necessary, but in Shakeel Pasha learned Single Judge of this Court held in the year 1987 that, conversion of patta lands for non-agricultural use was not required 8 when the lands were being used for quarrying activities. Therefore, at the time when the quarrying licences were issued to the petitioner, it was not necessary to seek conversion of the patta lands for quarrying activities. That, the Deputy Commissioner has failed to appreciate this position of law and has erroneously demanded compounding fee by invoking sub-section (4) of Section 96 of the Act. She, therefore, contended that Annexure-A be quashed.
6. Countering the said arguments, learned Addl. Government Advocate appearing for the State has drawn our attention to the scope of the provisions of the Act and has contended that if the lands are patta lands used for agricultural purposes, they have to be converted for non-agricultural use under Section 95 of the Act, in which event, under sub-section (7) of Section 95, a conversion fee or a fine has to be paid. However, if patta lands are used for non-agricultural activities, such as, extraction of minerals as in the instant case without seeking conversion, 9 then there would be violation of Section 95, in which case, sub-section (1) of Section 96 would apply. The State can seek forfeiture of the land, impose penalty or demand compounding fee under sub-section (4) of Section 96. In the instant case, admittedly, patta lands in question have not been converted prior to commencement of quarrying activity. Under these circumstances, a demand was made with regard to conversion charges as well as compounding fee, which were assailed by the petitioner in W.P.No.7604/2010. The Division Bench of this Court, in the said judgment, has upheld the demand for conversion fee reserving liberty to the petitioner to make a representation with regard to compounding fee. The Deputy Commissioner has, therefore, rightly demanded the said fee vide order at Annexure-A, as the petitioner had commenced quarrying activities without prior conversion of the lands in question. According to Addl. Government Advocate, there is no merit in the writ petition.
10
7. The impugned order is made pursuant to the representation given by the petitioner on the basis of the observations made by this court in W.P.No.7604/2010. In the said writ petition, the conversion fine as well as the compounding fee and penalty were assailed. The writ petition was dismissed as far as levy of conversion charges are concerned. Therefore, payment of conversion charges by the petitioner in respect of the lands granted for quarrying lease is indubitable. In that writ petition, as far as imposing of compounding fee and penalty are concerned, no final conclusion was recorded. The question as to whether patta lands required conversion prior to commencement of quarrying activity was addressed by the learned counsel for the petitioner by placing reliance on Shakeel Pasha in the earlier writ petition filed by the petitioner. The Division Bench did not accept the contention that in the instant case, conversion charges were to be levied only in respect of the land which has been put to quarrying use and not the entire land. The 11 relevant portion of the Division Bench order in W.P.No.7604/2010 in this regard is as follows:
"7. It is also asserted, that since the entire land in the three quarrying licenses, besides three acres, had been surrendered, conversion charges, if any, should be claimed only for three acres of land. The submission pressed at the hands of the petitioner is, that charges can only be levied in respect of the land which is being put to quarrying use, and not the remaining land.
8. We have given our thoughtful consideration to the first contention addressed at the hands of the learned counsel for the petitioner. It is however not possible to accept the same. The mandate contained under Section 95(2) of the Act is clear and unambiguous. It required conversion, at the hands of the individuals who desire to use agricultural land for non- agricultural purposes. Undisputedly, quarrying activities were carried on by the petitioner from the years 2000/2002 over the entire land till the petitioner surrendered most of the land leased out to it on 06.12.2004, so as to retain 12 only one acre in each of the three quarrying licenses. Having used the land for quarrying purpose for the period from 2000/2002 to 2004. We have no doubt in our mind that the petitioner is liable to pay charges contemplated under the relevant provisions for conversion thereof to non-agricultural purposes. Since the entire land was used, conversion charges are liable to be paid for the entire land. Even if it is assumed for argument sake, that the entire land had not been put to use, could the petitioner press the plea, that it would pay conversion charges only for such land as was put to use for quarrying granted to it? Obviously not. The petitioner sought, and was granted quarrying licenses for specified areas of land. Once the terms of the lease had been accepted by the petitioner, it became liable for payment keeping in mind the entire area leased out to it. After accepting the lease agreement, it is futile to contend that some of the area was not actually used for quarrying purpose."13
8. As far as the levying of compounding fee and penalty are concerned, the relevant portion of the judgment reads as under:
"9. The second contention addressed at the hands of the learned Counsel for the petitioner was that, compounding charges and penalty should not be imposed on the petitioner on account of the fact, that the legal position as declared by this Court at the relevant juncture was, that in respect of the land declared as unfit for agricultural purposes, conversion thereof for non-agricultural purpose was not required (in terms of the mandate of Section 95(2) of the Act). In fact, referring to the judgment rendered in Shakeel Pasha's case supra, it is asserted, that if an individual is carrying out quarrying in his own land, there is no question of conversion of land from agricultural use to non-agricultural use.
10. We prima facie find substance in the contention advanced at the hands of the learned Counsel for the petitioner, in so far as the second contention is concerned. Obviously the respondents did not take into consideration 14 the fact, that at the time when the petitioner applied for grant of the aforesaid three quarrying licenses, as also, when the aforesaid three quarrying licenses were granted to the petitioner, and also, when the petitioners surrendered a major part of the land taken by it for quarrying purposes on 06.12.2004, the declared legal position was, that no conversion had to be obtained for the land over which lease was granted, as the said land was not fit for agricultural use. Accordingly, no conversion charges were paid by the petitioners. Since the instant aspect of the matter was not taken into consideration by the respondents, while levying compounding charges, as also, while levying penalty, we are satisfied that the aforesaid determination at the hands of the respondents deserves to be set aside. We therefore, hereby set aside the order passed by the respondents levying compounding fee, as also, penalty on the petitioner. It is not as if we are recording any final conclusion on the instant aspect of the matter. In response to the final demand notice issued to the petitioner requiring it to pay compounding charges, as also, penalty, the petitioner will make an 15 appropriate representation seeking exemption thereof for the reasons noticed herein above, as also, for other grounds as may be available to the petitioner. The aforesaid representation shall positively be made by the petitioner within a period of one month from today. On receipt of the aforesaid representation, a decision shall be taken by the respondents in accordance with law, within a further period of one month, whereupon, the petitioner shall comply with the final determination rendered by the respondents.
11. The instant writ petition is accordingly allowed to the aforesaid limited extent. The instant writ petition is however dismissed in respect of the demand of conversion charges from the petitioner."
(underlining by us)
9. Therefore, with regard to levying of penalty and compounding fee, no final conclusion was reached by the Division Bench as the compounding fee and penalty were levied without appreciating the position of law particularly Sections 95 and 96 of the Act. The demand for compounding fee and penalty assailed in that writ petition 16 was thus set aside. Liberty was reserved to the petitioner to make an appropriate representation seeking exemption. On the representation made by the petitioner, the Deputy Commissioner has come to a conclusion that conversion of patta land for non-agricultural purpose was a mandatory requirement and the petitioner had not sought conversion in the instant case. Therefore, demand of compounding fee under sub-section (4) of Section 96 read with Rule 107-A has been made in the impugned order.
10. In order to test the correctness of Annexure-A, it is necessary to consider the relevant Sections and Rules which are extracted as follows:
95. Uses of agricultural land and the procedure for use of agricultural land for other purpose: (1) Subject to any law for the time being in force regarding erection of buildings or construction of wells or tanks, an occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm buildings, construct wells or tanks, or make any other 17 improvements thereon for the better cultivation of the land or its more convenient use for the purpose aforesaid.
(2) If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall [notwithstanding anything contained in any law for the time being in force] apply for permission to the Deputy Commissioner who may, subject to the provisions of this Section and the rules made under this Act, refuse permission or grant it on such conditions as he may think fit.
Provided that the Deputy Commissioner shall not refuse permission for diversion of such land included in the [Master Plan] published under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963), if such diversion is in accordance with the purpose of land use specified in respect of the land in such plan.
Provided further that] in Dakshina Kannada District, subject to any law for the time being in force regarding erection of buildings or the 18 construction of wells or tanks, an occupant of dry (punja) land, wet land or garden land who is not,--
(a) a person registered or liable to be registered as an occupant of such land under Section 48A of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962); or
(b) a grantee of such land under section 77 of the said Act, may, without obtaining the permission required under this sub-section and notwithstanding anything contained therein, divert such land or part thereof to any other purpose after sending a prior notice in that behalf, in the prescribed form to the Tahsildar and paying in the prescribed manner, the fine prescribed under sub-section (7).
(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 19 comply with the conditions that may be imposed under sub-section (4).
[(3A) xxx] [(3B) xxx] (4) Conditions may be imposed on diversion in order to secure the health, safety and convenience, and in the case of land which is to be used as building sites, in order to secure in addition that the dimensions, arrangement and accessibility of the sites are adequate for the health and convenience of occupiers or are suitable to the locality and do not contravene the provisions of any law relating to town and country planning or the erection of buildings. (5) Where the Deputy Commissioner fails to inform the applicant of his decision on the application made under sub-section (2) within a period of four months, from the date of receipt of the application, the permission applied for shall be deemed to have been granted.
(6) Unless the Deputy Commissioner shall, in any particular instance otherwise direct, no 20 application under sub-section (2) shall be recognised unless it is made by the occupant. (6a) In Dakshina Kannada District, Kodagu District, and Kollegal Taluk of Mysore District where any land assessed or held for purposes of agriculture has been diverted or used for any other purposes, before the date of commencement of the Karnataka Land Revenue (Amendment) Act, 1981, the land so used together with the land appurtenant to any building (other than a farm house) therein, not exceeding three times the built area of such building, shall with effect from such date be deemed to have been permitted to be used for purposes other than agriculture.
(7) When any land assessed or held for the purpose of agriculture is permitted under sub- section (2) [ or is diverted under the [provisos] to the said sub-section] or is deemed to have been permitted under sub-section (5) or sub- section (6a), to be used for any purpose unconnected with agriculture, the Deputy Commissioner may, subject to such rules as may be made by the State Government in this behalf, require the payment of a fine. No 21 assessment shall be leviable on such land thereafter except under sub-section (2) of section 83.
Explanation: For the purpose of this section, "occupant" includes a mulgeni tenant or a permanent tenant.
96. Penalty for using agricultural land for other purpose without permission: (1) If any land assessed or held for the purpose of agriculture be diverted or used for any other purpose without the permission of the Deputy Commissioner, or before the expiry of the period prescribed in sub-Section (5) of Section 95, the Deputy Commissioner may summarily evict the occupant and the person responsible for the diversion from the land so diverted and any building or other construction erected thereon shall also, if not removed after such written notice as the Deputy Commissioner may deem reasonable, be liable to forfeiture or to summary removal. The occupant and the person responsible for the diversion shall also be liable to pay, such penalty not exceeding one thousand rupees as the Deputy 22 Commissioner may, subject to the rules made by the State Government in this behalf, direct. (2) If any land assessed or held for the purpose of agriculture has been diverted for any other purpose in contravention of an order passed or of a condition imposed under Section 95, the Deputy Commissioner may serve a notice on the person responsible for such contravention directing him, within a reasonable period to be stated in the notice, to use the land for its original purpose or to observe the condition; and such notice may require such person to remove any structure, to fill up any excavation or to take such other steps as may be required in order that the land may be used for its original purpose, or that the condition may be satisfied. Subject to the orders of the State Government, the Deputy Commissioner may also impose on such person a penalty not exceeding one thousand rupees for such contravention and a further penalty not exceeding twenty-five rupees for each day during which such contravention continues. (3) If any person served with a notice under sub-section (2) fails within the period stated in 23 the notice to take steps ordered by the Deputy Commissioner under that sub-section, the Deputy Commissioner may himself take such steps or cause them to be taken; and any cost incurred in so doing shall be recoverable from such person in the same manner as an arrear of land revenue.
(4) Notwithstanding anything contained in this Section, when any land assessed or held for the purpose of agriculture has been diverted or used for any other purpose without the permission of the Deputy Commissioner or before the expiry of the period prescribed in sub-section (5) of Section 95 or in contravention of an order passed or of a condition imposed under Section 95, the Deputy Commissioner may, subject to such rules as may be prescribed and subject to any law for the time being in force regarding erection of buildings or construction of wells and tanks, and subject to prescribed terms and conditions, compound such diversion or use, on payment of the prescribed amount, which may be different for different areas or for different contraventions or for different 24 purposes for which the diversion or use is made.
Rule 107-A 107-A. Amount for compounding diversion of agricultural lands: The compounding which may be levied under sub-section (4) of Section 96 shall be at the rates specified in the table below, namely:
Table Sl. Place Area Rate of Fire in rupees No. per squaremeter Residential Non-
residential 1 2 3 4 5
1. Bangalore Municipal 11.50 57.50 Corporation limits and all lands within a distance of 18 Kilometres from the Corporation limits
2. Mysore, Municipal 7.00 34.50 Hubli- Corporation limits Dharwad, and all lands Mangalore, within a distance Belgaum of 8 Kilometres from the Corporation limits
3. Gulbarga, Municipal 5.75 28.75 Davangere, Corporation limits Shimoga, and all lands Bhadravath within a distance i, Bellary & of 8 Kilometres Bijapur. from the Municipal limits 25
4. Other Municipal limits 3.00 14.50 District and all lands Head within a distance Quarters & of 5 Kilometres Gadag, from the Dandeli, Municipal limits Kolar Gold Field, Hospet & Bagalkot
5. Other ............................... 0.25 1.20] places Provided that, in respect of diversion made by a Government Department, Municipal Council, City Corporation, Town Municipality, Village Panchayat, Taluk Panchayats, Zilla Panchayats, Charitable or Educational institution for charitable or public purposes for which the Government Department, Municipal Council, City Corporation, Town Municipality, Village "Panchayat, Taluk Panchayats, Zilla Panchayats, Charitable or Educational institution concerned does not derive any profit and the land is used for the purposes such as construction of school buildings, flat ground, roads, hospitals, dispensaries or rest houses, the compounding fee payable shall be twenty five per cent.26
11. Section 95 deals with use of agricultural land and the procedure for use of agricultural land for other purposes.
Sub-section (1) of Section 95 deals with the other uses of agricultural lands for better cultivation of the land or its more convenient use for agricultural purpose.
12. Sub-section (2) which is relevant for the instant case states that if any occupant of the land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof for any other purpose, then he shall apply for permission to the Deputy Commissioner who subject to the provisions of Section 95 and the Rules made thereunder grant or refuse permission. If permission is granted, then it is subject to certain terms. Such a permission has to be obtained notwithstanding anything contained in any law for the time being in force. There are two provisos to the sub-section, which are not relevant to the instant case.
13. Sub-section (3) of Section 95 states that permission to divert the land for any other purposes may be refused 27 on the ground that diversion would defeat the provisions of any law for the time being in force or cause public nuisance or it is not in the interest of the general public or in the event that the occupant is unable or unwilling to comply with the conditions that may be imposed under sub-section (4) of the Act. Sub-section (4) deals with the conditions that may be imposed on diversion of agricultural land for non-agricultural use. The conditions are in order to secure the health, safety and convenience of occupiers or in order to ensure that there is no contravention of any law relating to town and country planning or erection of buildings.
14. Sub-section (5) prescribes a period within which the Deputy Commissioner has to take a decision on the application made under sub-section (2). The period prescribed is four months from the date of receipt of the application. If the application is not disposed of within the said period and if the Deputy Commissioner fails to inform the applicant of that decision, then permission applied for 28 shall be deemed to have been granted. Sub-section (6) states that unless the Deputy Commissioner directs otherwise an application made by the occupant only shall be recognized. Sub-section (6a) pertains to Dakshina Kannada, Kodagu District and Kollegal Taluk of Mysore District, which is not relevant for the present case. Sub- section (7) states that when permission under sub-section (2) for diversion of agricultural land for non-agricultural purpose is granted, then the State Government may require the payment of fine and the same is also referred to as conversion charges. After conversion, no assessment is leviable on such land except under sub-section (2) of Section 83.
15. Section 96 deals with penalty for using agricultural land for other purposes without permission under sub- section (1). It is stated that if any agricultural land without the permission of the Deputy Commissioner is diverted or used for a non-agricultural purpose then, the Deputy Commissioner may summarily evict the occupant 29 and the person responsible for the diversion from the land so diverted. The occupant shall also be liable to pay the penalty not exceeding one thousand rupees as the Deputy Commissioner may determine.
16. If there is a contravention of Section 95, the Deputy Commissioner has to serve a notice on the person responsible for such contravention directing him to use the land as per its original purpose or to observe the condition within a reasonable period or fulfill any other condition that may be stated. The Deputy Commissioner can also impose a penalty not exceeding one thousand rupees for such contravention and a further penalty not exceeding twenty-five rupees for each day during which such contravention continues. This of course, has to be done by serving a notice on the person responsible for such contravention. If the person served with the notice under sub-section (2) fails within the period stated in the notice to take steps ordered by the Deputy Commissioner, then the Deputy Commissioner may himself take such steps and 30 any cost incurred in doing so, shall be recoverable from the person responsible for contravention as arrears of land revenue. According to sub-section (4) notwithstanding anything contained in Section 96 while any agricultural land has been diverted for any other purpose without the permission of the Deputy Commissioner or there is a contravention of the conditions imposed by the Deputy Commissioner under Section 95, then the Deputy Commissioner may compound such diversion or use, on payment of the prescribed amount, which may vary for different areas or for different contraventions or for different purposes for which the diversion or use is made.
17. While adverting to the said Sections and Rule, learned counsel for the petitioner has drawn our attention to certain decisions of this Court to contend that conversion of patta lands to be used as quarries is mandated subsequent to the decision in M.Kokila and prior to that, Shakeel Pasha was holding the field and agricultural lands or patta lands did not require conversion 31 for quarrying activities. Therefore, in the instant case, conversion of the lands in question was not required and the impugned order invoking sub-section (4) of Section 96 on account of the non-conversion of the patta lands in question is erroneous. In order to answer this contention, it would be necessary to refer to the relevant judgments.
18. Shakeel Pasha is a short judgment quashing the order of recovering damages and cost by the Tahsildar, Chamarajanagar. While quashing Annexures-C and D impugned therein, learned Single Judge has observed as follows:
"In the view I have taken in W.P.No.4785/1987 disposed of just a few minutes before, the petitioner in these petitions also is entitled to the same relief.
2. The impugned order recovering damages and cost by the Tahsildar of Chamarajanagar as at Annexures C and D are quashed.
3. However, an extra word is required to be added on account of the second order which is now directed to be quashed. That order 32 purports to be a levy of fine for diverting agricultural land for non-agricultural use without the required permission under Sec. 95 of the Karnataka Land Revenue Act, 1964. In a batch of petitions disposed of by me recently after carefully analyzing the provisions of the Mysore Land Revenue Code, 1888, the Karnataka Land Revenue Act, 1964, as well as the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the Karnataka Minor Mineral Concession Rules, 1969, I have held that the owner of a land need not take any permission as the law now stands to quarry granite, a minor mineral occurring on his land. I have also held having regard to the provisions made in the Karnataka Minor Mineral Concession Rules, 1969, that in certain areas of the State where the occupant is permitted to quarry granite for commercial exploitation is held to be not diversion of agricultural land to non-agricultural use, as long as he pays a royalty at a specified rate and for the reason that granite quarry cannot be treated as agricultural land because nothing can be grown on the quarry. Therefore, there 33 is no question of diversion of agricultural land to non-agricultural use.
4. In the result, as already stated, Annexures C and D are quashed. Rule will accordingly issue and be made absolute. There will be no order as to costs."
(underlining by us)
19. In Shakeel Pasha, learned Single Judge has consciously made a distinction that in certain areas of the State where the occupant is permitted to quarry granite for commercial exploitation, the same is not a diversion of agricultural land for non-agricultural use and therefore, conversion was not necessary.
20. Since Shakeel Pasha relied on the order passed in W.P.No.4785/1987 (Sri G.M.Hegde v/s. State of Karnataka & others) disposed of on 21/07/1987, it is relevant to note the facts in the said case. In fact we have summoned the records of the relevant Writ petition and Writ Appeals from the Registry as Shakeel Pasha has been decided based on earlier decisions of this Court and as the same were not 34 adverted to by counsel for the parties. The petitioner therein was the owner of Sy.No.102/12 of Jothigowdanapura Village of Chamarajanagar Taluk, being aggrieved by the order of the Tahsildar 24/03/1987 by which he had sought to recover certain sums of money as value of black granite said to have been unauthorisedly removed from the land by exercising power under Section 73 of the Karnataka Land Revenue Act, 1964, had filed the writ petition. Placing reliance on the order passed in W.P.No.4563/1987 and connected matters (Veeramadhu), the impugned order was quashed. The relevant portion of the order reads as follows:
"In a batch of petitions, namely, W.P.4563/87 and connected matters, I have explained the legal position as to mineral right of granite having regard to Section 38 of the Mysore Land Revenue Code 1888 read with Sections 70 and 202 of the Karnataka Land Revenue Act, 1964. I have therein held that the mineral has vested in the landowner and I have also held that he is not required to take any permit or licence or lease from any authority as the 35 law now stands in order to exploit that mineral. In that view of the matter, the petitioner must succeed in this petition because exploitation cannot be termed an illegal act much less a natural produce of his land which belongs to the State Government as contemplated under Section 73 of the Karnataka Land Revenue Act, 1964.
2. Even otherwise as held by the Supreme Court in the case of State of KARNATAKA v. SHRI RAMESHWARA RICE MILLS (ILR 1987 KARNATAKA 2051) the Tahsildar cannot unilaterally determine the value of the granite assuming that it is the property of the State. For the above reasons the petitioner must be given relief. Rule will issue and be made absolute. Annexure-A is accordingly quashed as being without the authority of law. But in the circumstances of the case there will be no order as to costs."
21. However, in M.Kokila, the Division Bench of this Court has stated that mining or quarrying being a non- agricultural operation, patta lands which are agricultural lands have to be converted prior to carrying out such 36 operations. Paras 5 and 6 which are relevant are extracted as follows:
"5. Patta lands are agricultural lands. In such lands agriculture operations have to be carried-out. As per Section 2(1) of Karnataka Land Reforms Act, 1961 "agriculture" includes acquaculture, horticulture, raising of crops, grass or garden produce, dairy farming poultry farming, breeding of livestock and grazing. It does not include mining or quarrying. In view of availability of minor minerals in Patta lands, quarrying operations are being carried on. It amounts to change of land use from agricultural purpose to non agricultural purpose. Since it involves diversion of agricultural land to non-agricultural purpose conversion is necessary under Section 95(2) of the Act, which reads:
"95(2) If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose he shall not withstand anything contained in any law for the time being in force apply for permission to the Deputy Commissioner who may, subject to the 37 provisions of this Section and the rules made under this Act, refuse permission or grant it on such conditions as he may think fit."
In view of this specific provision, the Deputy Commissioner was justified in issuing the Endorsements impugned in the writ petitions and the Learned Single Judge has rightly dismissed the writ petitions holding that conversion is necessary to use the Patta lands for extracting minor mineral from them. We are in full agreement with the view taken by the Learned Single Judge and the order passed by him does not warrant interference by this Court in exercise of this Court's Appellate Jurisdiction and power.
6. We may also add that for doing agricultural operations, no conversion, license or permit is required whereas for carrying on mining operations to extract minor mineral, conversion under Section 95 of the Act, license defined under Section 2(k) and for their transportation permit defined under Section 2(h) of Karnataka Minor Mineral Concession Rules, 1994 are required. Therefore, the appellant-writ petitioners cannot do mining 38 operations without conversion order, license and permit. Consequently, the decision in Veeramadhu's case has no application and reliance placed on it is mis-placed and legal contention urged by the Learned Senior Counsel placing reliance upon the said decision is wholly untenable in law.
7. Further we are in respectful agreement with the findings and reasons recorded by the Learned Single Judge on the contentious points raised in the writ petition, which are answered against the appellant in the impugned judgment, after referring to the rival legal contentions, provisions of the KLR Act and decisions of the Apex Court and this Court.
8. For the reasons stated above, the writ appeal is devoid of merit and liable to be dismissed.
9. Accordingly, the writ appeal is dismissed."
22. In the said decision also a reference is made to Veeramadhu (M.Veeramadhu V/s. Deputy 39 Commissioner - W.P.No.4563/1987 & connected cases disposed of on 14/7/1987)
23. In Veeramadhu, the facts were that the petitioner therein was the owner of certain patta lands in Kollegal Taluk. He made an application, which was an intimation expressing his intention to quarry and transport black granite occurring in his patta lands and sought for permission in that regard. The Deputy Commissioner had granted permission to the petitioner to excavate and transport black granite from his lands for a period of ten years and in that behalf caused an agreement to be made between the petitioner and the respondent and pursuant to that agreement, the petitioner was carrying on quarrying operation on the basis of quarrying permit. He was granted a transit permit on payment of the requisite royalty. The petitioner wanted to transport 100 metric tonnes of black granite, which he had quarried in his lands and requested for extension of time in regard to another 50 tonnes in respect of which permit to transport had been 40 granted earlier. The petitioner was with a hope that he would apply for permits through the Tahsildar. But the Tahsildar had refused to receive the royalty amount. Therefore, the petitioner had approached the Deputy Commissioner, Mysore, who also did not receive the royalty tendered and the request of transit permit was not acted upon. The petitioner was orally informed that the Department of Mines and Geology had instructed the respondent not to grant such permits. In those circumstances, the petitioner had moved this Court, seeking a direction to the Deputy Commissioner, Mysore, to issue permits in accordance with the Rules.
24. The other petitioners in the batch of cases disposed of along with Veeramadhu by order dated 14/07/1987, were the owners of lands in various areas in Mysore District or elsewhere in the erstwhile Princely State of Mysore who had quarried granite blocks. But the officials of the one other Department had seized granite blocks 41 from their land or while in transit on the ground that the quarrying was illegal and without authority of law.
25. In the said case, the State had contended that though petitioners being pattadars, were carrying on non- agricultural activities such as exploiting granite commercially without obtaining permission under Section 95 of the Act and therefore, the quarrying activity was illegal. While answering the said contention, learned Single Judge at the first instance had noted that Kollegal Taluk of Mysore District is an addition to the erstwhile Princely Mysore State only on the formation of State of Karnataka under the States Re-organisation Act. That prior to 01/11/1956 Kollegal formed part of the erstwhile Madras province along with the present Dakshina Kannada District. Similarly, Bellary District from which there were few petitioners became part of the erstwhile Princely Mysore State by virtue of the formation of State of Andhra under the Andhra Act of 1953, which inturn became part of new Karnataka State along with erstwhile Princely Mysore 42 State after the States Re-organisation Act. In these circumstances, learned Single Judge set out the legal position prevailing in the erstwhile State of Mysore. After referring to Section 38 of the Mysore Land Revenue Code 1888 and Section 70 of the Karnataka Land Revenue Act, 1964 held that owners of the patta land in the erstwhile Mysore State continued to have mineral rights in respect of lime stone and granite and any other minor mineral specified by notification by the State Government. The relevant portion of the judgment is extracted as an useful reference:
"The effect of the legislation is that the owners of Patta land in the erstwhile Mysore State continued to have mineral rights in respect of lime stone and granite and any other minor mineral specified by notification by the State Government. In this context it is useful to notice that as far back as in 1902 the then Government of Mysore included Trap, Kankar, Sandstone, Slate, Quartz, Laterite and Brick earth, to be minerals exempted from the rigour 43 of Section 38 of the Land Revenue Code of 1888.
Therefore, the State cannot at this late stage in so far as it relates to areas comprised in it from out of the areas in the former State of princely Mysore, prior to October, 1953, claim the minerals such as granite and lime stone as proprietors thereof. This Court must rule that the proprietors are the owners of the lands themselves of such minerals. No legislation is brought to my notice which has the effect of altering the legal position that I have pointed out."
26. As far as areas of Karnataka State which were formerly situated in the erstwhile State of Madras on or before 01/10/1953 are concerned, learned Single Judge observed that old Madras Presidency did not have any specific Land Revenue Code, but referred to a decision of the Hon'ble Supreme Court in State of Tamil Nadu V/s. Hindstone (AIR 1981 SC 711) and held that the pattadars in the old Madras Presidency enjoyed the same proprietary rights as other owners of land in the other 44 erstwhile State of Mysore. The relevant portion of the judgment in this regard reads as follows:
"It is now useful to see what other laws apply to areas of Karnataka State which were formerly situated in the erstwhile State of Madras on or before 1st October, 1953. The old Madras Presidency did not have any specific Land Revenue Code. Matters relating to land revenue and survey and settlement were controlled by what came to be known as the Board Standing orders passed by the Board of Revenue in erstwhile State of Madras (Pre and Post Constitution period).
However, in the aforementioned case of State of Tamil Nadu -Vs- Hindstone, an indication is given as to the rights enjoyed by ryotwari Pattadars. The relevant portion of the judgment of the Supreme Court reads as follows:-
"Rule 8C, it may be noted, does not impose a general ban on quarrying black granite but only imposes a bar on the grant of leases for quarrying black granite.45
Appeals and Special Leave Petitions which arise out of applications for the grant of permission to quarry black granite in the Patta lands belonging to the applicants themselves, have therefore, to be dismissed".
As is obvious, State of Tamil Nadu, were the appellants whose special leave petitions in so far it related to Pattadars and their right to quarry black granite in their own land was concerned, the appeals came to be dismissed while the appeal was allowed to the extent indicated by the Supreme Court i.e., by sustaining the validity of Rule 8C of the Tamil Nadu Minor Minerals Concession Rules, 1959 providing for similar reservation in favour of State monopoly for exploiting black granite corresponding to Rule 3A of the Rules. Therefore, this Court must hold that Pattadars in Kollegal Taluk or any other area of Karnataka State which was comprised in the erstwhile State of Madras enjoyed the same proprietary rights as other owners of land in the erstwhile State of Mysore. This Court in 46 the absence of sufficient material and any specific case before it now from other parts of Karnataka is not in a position to express itself in regard to the rights of land owners in other areas of Karnataka."
27. At this stage, it would be relevant to note that the lands in question in this writ petition are in Raichur District, which was in the erstwhile State of Hyderabad and by virtue of Section 7 of the States Re-organisation Act, 1956 became part of new Mysore State (now Karnataka State).
"7. Formation of a new Mysore State:- (1) As from the appointed day, there shall be formed a new [*] State to be known as the State of Mysore comprising the following territories, namely:
(a) the territories of the existing State of Mysore;
(b) Belgaum district except Chandgad taluka and Bijapur, Dharwad and Kanara districts, in the existing State of Bombay;
(c) Gulbarga district except Kodangal and Tandur taluks, Raichur district except Alampur 47 and Gadwal taluks, and Bidar district except Ahmadpur, Nilanga and Udgir taluks and the portions specified in clause (d) of sub-section (1) of section 3, in the existing State of Hyderabad.
(d) South Kanara district except Kasaragod taluk and Amindivi Islands, and Kollegal taluk of Coimbatore district, in the State of Madras; and
(e) the territories of the existing State of Coorg; and thereupon the said territories shall cease to form part of the said existing States of Mysore, Bombay, Hyderabad, Madras and Coorg, respectively.
(2) The territory comprised in the existing State of Coorg shall form a separate district to be known as Coorg district, and the said Kollegal taluk shall be included in, and become part of, Mysore district, in the new State of Mysore."
28. In the case of Veeramadhu and other writ petitions, learned Single Judge next referred to certain provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the Minor Mineral Concession Rules, 1994 and 48 also to the decision of the Hon'ble Supreme Court in Hindstone and held that in respect of patta lands of Madras area and the Bellary District the owner could commercially exploit his quarry notwithstanding that such land would be rendered less fit for agricultural purposes as far as he pays the prescribed royalty subject to the provisions made in Chapter V of the aforesaid Rules. In the erstwhile Princely State of Mysore, the owner could mine without any conversion which position obtained as far as pattadars in old Madras Areas also. In the said decision, learned Single Judge had concluded as follows:
"In respect of those petitioners who are either owners carrying on mining or quarrying operations in their own land situate in Kollegal and other Madras Areas the Officers of the State Government irrespective of the Department to which they belong are restrained from interfering with those mining operations as long as they act in conformity with the Rules contained in Chapter-V of the Rules. If there is breach of agreement contemplated under Rule 44, the Officers of 49 the State Government must necessarily act in accordance with the terms agreed and terminate the agreement in accordance with law and thereafter take steps to prevent the mining or quarrying and not otherwise.
In so far as the petitioners who have approached this Court for relief and who are carrying on mining operations under a lease granted by a private owner of land situate in erstwhile Mysore State or the owner of the land himself is carrying on the mining or quarrying operation shall not be obstructed by the officers of the State in any manner nor have the Officers the right to insist upon any permit or licence for carrying on the operation of mining or quarrying as the law stands today. Therefore they are refrained from interfering in any manner with the mining or quarrying operations of such persons except to the extent other laws like the Explosives Act or the Mining Act may permit.
In respect of those petitioners who it is alleged are grantees of land under the Land Grant Rules of the State. If the mineral rights are reserved in favour of the grantor, namely, 50 the State, the Officers of the State must take steps to resume the land granted for breach of the conditions of the grant, take possession of such lands in accordance with law and proceed against the person for any damage or loss of property caused to the State by illegal exploitation of the mineral wealth in such land provided the same is quantified by a competent Civil Court and thereafter damages recovered.
It is further clarified that all mining or quarrying operations carried out by the petitioners in the present State of the law does not require obtaining transit permit from anybody except to the extent the movement of vehicles is controlled by the Motor Vehicles Act.
It is also to be observed that the decision rendered in these cases will not act as precedent in respect of quarrying rights in other areas than the ones discussed and they shall be dealt with separately as and when they come up before the Court."
(underlining by us) 51
29. Therefore, as far as mining activities in Kollegal and other Madras areas are concerned, the officers were restrained from interfering with those mining operations as long as they were in conformity with the Rules contained in Chapter V of the relevant Minor Mineral Concession Rules. Insofar as lands situated in erstwhile Mysore State owned by a private owner is concerned, similar directions were issued. It was categorically observed that the decisions rendered in those cases would not be a precedent in respect of quarrying rights in other areas than the one discussed and they shall be dealt with separately as and when they come up before the Court. Thus the requirement of Conversion of patta lands under Section 95 of the Act in the State of Karnataka depended on the location of the land and was not uniformly applicable.
30. M.Kokila was a writ appeal arising out of a common judgment dated 07/11/2005 passed by learned Single Judge of this Court in a batch of writ petitions in which Shakeel Pasha was also one of the petitioners. The 52 common features in all the writ petitions were that the lands were situated in various villages in Chamarajanagar District forming part of erstwhile old Mysore area. The petitioners therein were land owners known as pattadars, who were carrying on quarrying activities extracting granite. They had sought for Mineral Dispatch Permits (MDPs) to transport the granite boulders and rocks but had run into problems with the Department of Mines and Geology which had declined to grant the MDPs on the premise that the same could be granted only after taking permission in terms of Section 95 of the Act i.e., permission for use of agricultural land for non-agricultural purposes. Being aggrieved by the stand taken by the Department, M.Kokila and others filed writ petitions contending that the Department of Mines and Geology could not insist upon the petitioners to obtain permission in terms of Section 95 of the Act. That earlier such a controversy had arisen in the context of issue of transport permits and the matter had been considered in W.P.No.4563/87 and connected matters and the said writ 53 petitions had been allowed. Therefore, M.Kokila contended that a direction be issued to the Department to issue MDPs following the earlier decision in W.P.No.4563/87 (M.Veeramadhu v. Deputy Commissioner) disposed of on 14/07/1987. In response to the said grievance of the petitioners, the State had contended that the decision in W.P.No.4563/87 was no longer a precedent for the present cases. That carrying on quarrying activity upon a non agricultural activity and permission under Section 95 of the Act was mandatory and therefore, the Department of Mines and Geology was right in declining to grant MDPs to the petitioners therein. That the petitioners could not insist on the issue of MDPs without complying with Section 95 of the Act. Ofcourse, such a contention of the State was taken only orally and in the form of written arguments.
31. The learned Single Judge after considering Section 95 of the Act and also in the context of the submission of the State that the applicability or otherwise of Section 95 54 of the Act did not arise directly in Veeramadhu, went into question as to whether Veeramadhu was a judicial precedent which was applicable to the cases under consideration by him and considered in detail the judgment in Veeramadhu and held that "the entire thrust and examination was vis-à-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.,". The learned Single Judge took into consideration 55 the amendments made to Section 95 of the Act and also Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994 and came to a conclusion that the decision in Veeramadhu could not be a binding precedent.
32. Reverting back to Section 95 of the Act, it is noticed that in sub-section (2) of Section 95 the words "notwithstanding anything contained in any law for the time being in force" have been inserted by Act II of 91 w.e.f. 20/03/1991 by Notification dated 19/03/1991. The amendment has in our view the effect of abrogation of the judgment in Veeramadhu. Therefore, after the insertion of non obstante clause w.e.f. 20/03/1991, if any occupant of a land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall apply for the permission of the Deputy Commissioner, who may subject to the provisions of Section 95 of the Act and Rules made there under, refuse permission or grant it on such conditions as he may think fit notwithstanding anything contained for the time being 56 in force. One of the objects sought to be achieved by the amendment is to bring out uniformity in law with reference to ownership of patta lands or with regard to the rights of pattedars in old Mysore area, Bombay-Karnataka area, Hyderabad-Karnataka area or any area which was part of Old Madras province and which later, on re-organization, formed Karnataka State, vis-à-vis mineral rights in the said lands. Also the intention is that all mineral wealth in all nature of lands including private lands belongs to the State Government unless regulated by a central law. It is needless to observe that the Legislature has the competency to erase the effect of a judicial verdict by removing the basis of a judgment by means of an amendment to a statute. In other words, it can render a judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively, vide Indian Aluminium Co. v. State of Kerala and others [AIR 1996 SC 1431].
33. It is in this background that in the writ petitions filed by M.Kokila and others the learned Single Judge dismissed 57 the writ petitions and held that the decision in Veeramadhu and connected cases was not applicable by observing as follows:-
"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 land owners like the pattadars in the old Mysore area vis-à-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 for 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 in so far 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 58 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 noncompliance 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-à-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 59 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."
*** "81. To sum up, a land classified for agricultural use in the revenue records under 60 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 enquires 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 61 to the Deputy Director, Department of Mines & Geology nor a writ of mandamus can be issued to the Deputy Director, Department of Mines & 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."
34. As stated above M.Kokila appealed against the aforesaid order of the learned Single Judge. A Division Bench of this Court in W.A.No.972/2006 [M.Kokila v. The State of Karnataka and others] on 02/02/2009 dismissed the writ appeal by confirming that the dictum in Veeramadhu was no longer applicable.
35. As stated above, we have endeavoured to traverse through the maze of judicial dicta by referring in detail to various judgments of this Court right from Veeramadhu only because the learned counsel for the petitioner insisted on contending that Shakeel Pasha held the field despite the decision in M.Kokila. Significantly, the agricultural areas which were to be used for quarrying activity in 62 Shakeel Pasha as well as in M.Kokila are situated in Chamarajanagar District which was part of erstwhile Mysore State. Also on perusal of the judgment of the learned Single Judge in M.Kokila and others, we notice that the Shakeel Pasha, who had earlier filed W.P.Nos.6480- 81/87 which was allowed along with W.P.No.4563/87 and connected matters on 14/07/1987 (against which, W.A.Nos.2059-96/87 filed by the State was rejected on 02/12/1987 and the order being affirmed in SLP.Civil.Nos.4627-4666/98 on 03/04/1989) had also subsequently filed W.P.No.4752/2005, which writ petition was considered along with the case of M.Kokila and the same was dismissed by the learned Single Judge on 07/11/2005. Infact, Shakeel Pasha himself had filed W.A.No.468/2006 against the order dated 07/11/2005 passed in his W.P.No.4752/2005 and by order dated 13/09/2006 he withdrew the writ appeal.
36. Thus, what emerges is that Shakeel Pasha, who was initially successful in the year 1987 based on the decision 63 in Veeramadhu, suffered an adverse order in W.P.No.4752/2005 and W.A.No.468/2006 filed by him. Therefore, the amendment to Section 95 and decision in M.Kokila has erased the effect of the decision of the learned Single Judge in Shakeel Pasha's case in W.P.Nos.6580-81/87. It is also significant to note that the decision in M.Kokila has not been interfered with by the Hon'ble Supreme Court which has dismissed the S.L.P. filed by M.Kokila on 13/11/2009. Therefore, Shakeel Pasha has lost its value as a precedent and that, M.Koila holds the field.
37. It is also relevant to observe that the decision in M.Kokila is not prospective but is retrospective from 20/03/1991, i.e., the date on which the amendment to sub-section (2) of Section 95 of the Act was made by the Legislature by introducing the non obstante clause came into force. Therefore, the entire basis of the argument advanced by the learned counsel for the appellant is on a weak and false premise. The contention that the 64 applicability of Section 95 of the Act for obtaining conversion of agricultural land for quarrying activity would depend on the location of the land in the State of Karnataka also pales into insignificance in view of the amendment made to sub-section (2) of Section 95 of the Act which has brought about uniformity in law. Shakeel Pasha or Veeramadhu can no longer retain their binding effect as precedents. In view of the aforesaid reasons, any reliance placed on the said decisions by the pattedars engaged in quarrying activity in agricultural lands in any part of the State, must only be noticed so as to be rejected.
38. We are indeed perplexed and astonished as to how reliance has been placed on Shakeel Pasha not once but twice in the case of the present petitioner. If the correct position of the law had been made known to the Division Bench which had earlier disposed of this petitioner's writ petition by order dated 08/11/2010 rather than arguing that Shakeel Pasha still held the field, it would not have 65 been necessary for the earlier Division Bench to direct reconsideration of the matter. The Division Bench was led to believe that Shakeel Pasha still held the field despite the decision in M.Kokila. It is under such circumstances that the Division Bench granted liberty to the petitioner herein to make a representation with regard to the compounding charges and penalty. The same having been made and considered the Deputy Commissioner has ordered that compounding fee has to be collected in terms of Rule 107-A of the Rules. We do not find any infirmity in the impugned order dated 31/07/2012 for the following reasons. Firstly, quarrying leases have been granted in the years 2000-2002 i.e., subsequent to the amendment made to sub-section (2) of Section 95 of the Act. Secondly, the said amendment is applicable throughout the State of Karnataka and no distinction can be made with regard to the location of the agricultural land to be utilized for quarrying activity which is a non-agricultural activity, as was the case till the amendment made in 1991. Thirdly and more importantly, reliance placed on the decision of this Court in Shakeel Pasha 66 and Veeramadhu are incorrect in view of the amendment made to sub-section (2) of Section 95 of the Act.
39. Thus, there is no merit in this writ petition and is therefore, dismissed with costs of Rs.25,000/- payable to Respondent No.2, within a period of one month from the date of receipt of a copy of this order, failing which, the same shall be recovered as arrears of Land Revenue.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE S*/*mvs