Karnataka High Court
Poovappa Poojary vs Karnataka State Minerals Corporation ... on 9 February, 2022
Bench: Chief Justice, Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU ®
DATED THIS THE 9TH DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.5031 OF 2021 (GM-MMS)
BETWEEN:
1. POOVAPPA POOJARY
S/O SANKAPPA POOJARY
AGED ABOUT 55 YEARS
R/AT 2-389, KODAMAJE
AJILAMOGARU POST, BANTWAL TALUK
SARAPADY, D.K-574211
2. VINAYAKA
S/O LATE SHIVARAMA
AGED ABOUT 54 YEARS
R/AT NO.1-2-27-2256/4
SRI RAMA, SHEKAR COMPOUND
RAMAKIRODIAN ROAD
MANGALORE, ASHOKANAGAR
D K-575006
3. I.M. HAMZA
S/O A.G. ISMAIL
AGED ABOUT 37 YEARS
R/AT NO.1-399
NEAR GOVERNMENT SCHOOL
ADDUR, D.K-574145
4. MOHAMMED ISMAIL
S/O MOHAMMAD
AGED ABOUT 35 YEARS
R/AT NO.1-304/3
PANOLIPADI HOUSE, GANDHADI
ADDOOR VILLAGE AND POST
MANGALORE, D K -574145
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5. MOHAMMED RAFIQ
S/O G.P. ABUBAKER
AGED ABOUT 44 YEARS
R/AT NO.1-40, MANNAGUDDA HOUSE
ADDOOR VILLAGE AND POST
MANGALORE, D K -574145
...PETITIONERS
(BY SRI. SACHIN.B.S, ADVOCATE)
AND:
1. KARNATAKA STATE MINERALS
CORPORATION LTD.
REGISTERED OFFICE TTMC
A BLOCK, 5TH FLOOR
BMTC BUILDING, K.H. ROAD
SHANTHINAGAR, BANGALORE-560027
REPRESENTED BY ITS
GENERAL MANAGER (SAND)
2. DEPUTY COMMISSIONER
MANGALORE, D.K DISTRICT-575001
3. DEPUTY DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
JUGAL TOWER, MALLIKATTE
MANGALORE, D.K DISTRICT-575 001
... RESPONDENTS
(BY SRI. D.L.N. RAO, SENIOR ADVOCATE FOR
SRI. H.N. NARENDRA DEV, ADVOCATE FOR R1;
SRI. S.S MAHENDRA, AGA FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT
OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER
TO QUASH THE IMPUGNED E-TENDER INVITATIONS DATED
07.11.2020 IN NO.863/KSMCL/DESILTING/SAND
/SHAMBURU/2020-21/1827 AND DATED 07.12.2020 IN NO.
864/KSMCL/DESILTING/SAND/ADHYPADI/2020-21/1840, AS PER
ANNEXURES-A AND B AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THROUGH PHYSICAL HEARING THIS DAY, SURAJ
GOVINDARAJ J MADE THE FOLLOWING:
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ORDER
1. The petitioners are before this Court seeking for the following reliefs:
i. Issue writ of certiorari or any other appropriate writ or order to quash the impugned E-tender invitations dated 07.11.2020 in No.863/KSMCL/Desilting/Sand/Shamburu/2020-
21/1827 and dated 07.12.2020 in No.864/KSMCL/Desilting/Sand/Adhypadi/2020- 21/1840, as per ANNEXURES-A AND B. ii. Issue any other writ or order or direction that deems fit to grants in the circumstances of the case in the interest of justice and equity.
2. Sri.Sachin. B.S, learned counsel for the petitioners, would submit that 2.1. The petitioners belong to traditional sand extracting communities holding temporary permits to extract the sand in various sand blocks situated in Dakshina Kannada District and their livelihood depends on extracting of sand.
2.2. They are aggrieved by the E-tender notification issued by respondent No.1 for the purpose of dredging/desilting in Adyapady dam and Shamburu Dam submergence area for the reason that under the said e-tender notification, the successful contractor would be permitted to -4- engage machinery and vehicles for the purposes of extracting sand.
2.3. This is not permissible as per the amended provisions of the Karnataka Minor Mineral Concession Rules, 1994 ('Rules' for short). 2.4. Amended Rule 31R of the Rules came into force on 5.05.2020, in terms of Rule 31R(5) there is a prohibition of use of machinery for sand quarrying, use of mechanised boats in river sand quarrying is prohibited.
2.5. No tender, let alone E-tender could have been issued by respondent No.1 inviting tender for desilting of the dams area by usage of such machinery.
2.6. The term desilting of sand is a misnomer inasmuch the same is quarrying of sand though termed as desilting.
2.7. In terms of Rule 31ZB of the Rules, the sand blocks which are available in 4, 5 and higher order streams through tender-cum-auction in Non-CRZ of coastal district are required to be allotted by tender-cum-auction proceedings only amongst the traditional sand extracting -5- community like the petitioners, the tender now issued not being for the traditional sand extracting community is in violation of Rule 31ZB of the Rules.
2.8. In terms of Rule 31ZB, use of motor boats and dredger for removal of sand is prohibited. 2.9. On these grounds he submits that the relief as sought for be granted and E-tender notification be quashed by allowing the Writ Petition.
3. Sri.S.S.Mahendra, learned Additional Government Advocate would submit that 3.1. what is being tendered is not sand block for the purpose of quarrying, but the work envisages desilting of two dams, viz., Adyapady dam where it is found through analysis sand deposit of 2000 mtrs in length, 100 mtrs in width with one mtr depth, totalling to 3.44 lakhs Metric ton and Shamburu dam where it is found through analysis sand deposit is on 2800 mtrs in length, 230 mtrs in width with one mtr depth, totalling to 11,07,680 Metric ton.
-6-3.2. Gathering of silt, he submits has reduced the water holding capacity of the said dams requiring desilting. The collection of water has been considerably reduced affecting supply of drinking water as also for irrigation, as such, faster method of desilting is required to be resorted to by usage of machinery.
3.3. This desilting is not quarrying in the strict sense of usage of the term since there are no identified sand block and as such, the restriction either under amended Rule 31R or 31ZB of the Rules would not be applicable to the present matter.
4. Sri.D.L.N.Rao, learned Senior counsel for respondent No.1 would also reiterate the submissions made by Sri.S.S.Mahendra, learned AGA and he would further submit that 4.1. Respondent No.1 is a Corporation established by the State. There is no private interest which is involved. The work which has been sought to be awarded is dredging and desilting of dams -7- which would require usage of machinery and such work cannot be done by without machinery, let alone by usage of traditional methods.
4.2. In this background, he also relies upon the decision of a Coordinate Bench of this Court in W.P.No.24904/2019 dated 25.06.2019 and submits that this Court while considering the effect of unamended Rule 31R and 31ZB(A) of the Rules has held that the tender for desilting is different from a tender for quarrying. The tender in respect of dredging/desilting of submergence of vented dam cannot be equated to quarrying of a sand block and as such, relying on the said Judgment, the present situation also being related to desilting of submergence area of vented dam, the said Rule 31ZB(A) and/or Rule 31R of the Rules would not be applicable.
5. Heard Sri.Sachin.B.S, learned counsel for the petitioners, Sri.D.L.N.Rao, learned Senior counsel for Sri.H.N.Narendra Dev, learned for respondent No.1 and -8- Sri.S.S.Mahendra, learned Additional Government Advocate for respondents No.2 and 3.
6. The short question that would arise for our consideration is, Whether a tender for dredging/desilting of submergence area of a dam would amount to sand quarrying necessitating the imposition of the restriction under Rule 31R or Rule 31ZB of the Karnataka Minor Mineral Concession Rules, 1994?
7. As referred to above, while dealing with the contentions of the respective counsels, it is clear and admitted that the tender invitation is for dredging and desilting of the reservoir area of a dam. There is no sand block which has been identified or mentioned in the tender notification. The dredging and desilting of the dams have arisen on account of gathering of silt in the reservoir area of the dam, thereby reducing the carrying capacity of dam, as such, after analysis it has been ascertained that there is a fixed area which has gathered silt, the quantity has also been ascertained and identified by experts dealing with the same. -9-
8. It is on that basis, the quantified sand and the location thereof with longitude and latitude has been described in the heading location in the E-tender.
9. Both Sri.S.S.Mahendra, learned AGA and Sri.D.L.N.Rao, learned Senior counsel have submitted that the E-tender is restricted to such area and the quantified sand mentioned therein and does not extend to river area or to any sand block. Their submission that the contractor would not be permitted to extract sand beyond the identified area is placed on record.
10. In the above circumstances, when there is no sand block which would be involved in the dredging/desilting of silt in the reservoir area, in our considered opinion the same would not amount to quarrying activity in a river area or in a sand block identified for that purpose. In such circumstances, when the work cannot be said to be quarrying, the restriction which has been imposed under Rule 31R or 31ZB of the Rules would not apply to the work contemplated under the E-tender which has been challenged in these proceedings.
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11. In view of the above, there is no right which can be said to be vested in the petitioners under Rules 31ZB of the Rules nor can it said to be in violation of Rule 31R of the Rules, as contended by the learned counsel for the petitioners. It was always open for the petitioners to have participated in the E-tender proceedings.
12. We are therefore of the opinion that a tender for dredging/desilting of submergence area of a dam would not amount to sand quarrying necessitating the imposition of the restriction under Rule 31R or Rule 31ZB of the Karnataka Minor Mineral Concession Rules, 1994.
13. In view of the above, we do not find any merit in the petition as filed. The petition stands dismissed.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE ln