Karnataka High Court
Sri H S Somashekara vs The Deputy Commissioner And Chairman on 9 March, 2020
Author: Abhay S. Oka
Bench: Abhay S. Oka
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO. 2269 / 2019 (GM-MMS)
CONNECTED WITH
WRIT PETITION NOS.20076 / 2019, 20077 / 2019,
2268 / 2019, 2304 / 2019
IN W.P.NO.2269/2019
BETWEEN:
SRI H.S. SOMASHEKARA
S/O H.M. SWAMY
AGED ABOUT 50 YEARS
PROPRIETOR
M/S SRI SRIKANTESHWARA STONE CRUSHER
SY.NO.189/2, HIRIKATI VILLAGE
GUNDLUPET TALUK
CHAMARAJANAGAR DISTRICT
... PETITIONER
(BY SRI P. MAHESHA, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER AND CHAIRMAN
STONE CRUSHER LICENSING & REGULATION AUTHORITY
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313
2. THE DEPUTY DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313
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3. THE KARNATAKA STATE POLLUTION CONTROL BOARD
PARISARA BHAVANA
NO.49, CHURCH STREET
BENGALURU - 560 001
BY ITS SECRETARY
4. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF COMMERCE AND INDUSTRY
VIKASA SOUDHA
BENGALURU - 560 001
... RESPONDENTS
(BY SRI V. G. BHANUPRAKASH, AGA FOR R1, R2 & R4;
SRI GURURAJ JOSHI, ADVOCATE FOR R3)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ENDORSEMENT ISSUED BY THE
SECOND RESPONDENT THE DEPUTY DIRECTOR, MINES AND
GEOLOGY, CHAMARAJANAGAR DATED 20.11.2018 VIDE
ANNEXURE-H AND ENDORSEMENT ISSUED BY THE THIRD
RESPONDENT MEMBER SECRETARY, THE KARNATAKA STATE
POLLUTION CONTROL BOARD, BENGALURU DATED 16.07.2018
VIDE ANNEXURE-G AND ETC.
IN W.P.NO.20076/2019
BETWEEN:
SRI H.S. MAHADEVASWAMY
S/O SHIVANNA
AGED ABOUT 42 YEARS
PROPRIETOR
M/S SRI LAKHMI STONE CRUSHING INDUSTRIES
BADANAGUPPE VILLAGE
CHAMARAJANAGAR TALUK AND DISTRICT
... PETITIONER
(BY SRI P. MAHESHA, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER AND CHAIRMAN
STONE CRUSHER LICENSING & REGULATION AUTHORITY
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313
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2. THE DEPUTY DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313
3. THE KARNATAKA STATE POLLUTION CONTROL BOARD
PARISARA BHAVANA
NO.49, CHURCH STREET
BENGALURU - 560 001
BY ITS SECRETARY
4. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF COMMERCE AND INDUSTRY
VIKASA SOUDHA
BENGALURU - 560 001
... RESPONDENTS
(BY SRI V. G. BHANUPRAKASH, AGA FOR R1, R2 & R4;
SRI GURURAJ JOSHI, ADVOCATE FOR R3)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ENDORSEMENT ISSUED BY THE
SECOND RESPONDENT THE DEPUTY DIRECTOR, MINES AND
GEOLOGY, CHAMARAJANAGAR DATED 16.02.2019 VIDE
ANNEXURE-H AND ETC.
IN W.P.NO.20077/2019
BETWEEN:
SRI H.S. DINESH
S/O H.M. SWAMY
AGED ABOUT 45 YEARS
PROPRIETOR
M/S SRI CHAMUNDESHWARI STONE CRUSHER
SY.NO.179/1, 2
HIRIKATI VILLAGE
GUNDLUPET TALUK
CHAMARAJANAGAR DISTRICT
... PETITIONER
(BY SRI P. MAHESHA, ADVOCATE)
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AND:
1. THE DEPUTY COMMISSIONER AND CHAIRMAN
STONE CRUSHER LICENSING & REGULATION AUTHORITY
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313
2. THE DEPUTY DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313
3. THE KARNATAKA STATE POLLUTION CONTROL BOARD
PARISARA BHAVANA
NO.49, CHURCH STREET
BENGALURU - 560 001
BY ITS SECRETARY
4. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF COMMERCE AND INDUSTRY
VIKASA SOUDHA
BENGALURU - 560 001
... RESPONDENTS
(BY SRI V. G. BHANUPRAKASH, AGA FOR R1, R2 & R4;
SRI GURURAJ JOSHI, ADVOCATE FOR R3)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ENDORSEMENT ISSUED BY THE
SECOND RESPONDENT THE DEPUTY DIRECTOR, MINES AND
GEOLOGY, CHAMARAJANAGAR DATED 20.11.2018 VIDE
ANNEXURE-H AND ETC.
IN W.P.NO.2268/2019
BETWEEN:
SRI R. YASHWANTH KUMAR
S/O RAMAKRISHNA
AGED ABOUT 44 YEARS
PROPRIETOR
M/S SRI LAKSHMI VENKATESHWARA
STONE CRUSHER
SY.NO.183/2, 3 & 184/1, 3
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HIRIKATI VILLAGE
GUNDLUPET TALUK
CHAMARAJANAGAR DISTRICT
... PETITIONER
(BY SRI P. MAHESHA, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER AND CHAIRMAN
STONE CRUSHER LICENSING & REGULATION AUTHORITY
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313
2. THE DEPUTY DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313
3. THE KARNATAKA STATE POLLUTION
CONTROL BOARD
PARISARA BHAVANA
NO.49, CHURCH STREET
BENGALURU - 560 001
BY ITS SECRETARY
4. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF COMMERCE AND INDUSTRY
VIKASA SOUDHA
BENGALURU - 560 001
... RESPONDENTS
(BY SRI V. G. BHANUPRAKASH, AGA FOR R1, R2 & R4;
SRI GURURAJ JOSHI, ADVOCATE FOR R3)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ENDORSEMENT ISSUED BY THE
SECOND RESPONDENT THE DEPUTY DIRECTOR, MINES AND
GEOLOGY, CHAMARAJANAGAR DATED 20.11.2018 VIDE
ANNEXURE-J AND ENDORSEMENT ISSUED BY THE THIRD
RESPONDENT MEMBER SECRETARY, THE KARNATAKA STATE
POLLUTION CONTROL BOARD, BENGALURU DATED 19.07.2018
VIDE ANNEXURE-H AND ETC.
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IN W.P.NO.2304/2019
BETWEEN:
SMT. SEEN XAVIER
W/O H.S. SOMASHEKARA
AGED ABOUT 45 YEARS
PARTNER
M/S CRIS INDUSTRIES
SY.NO.180/1, 2 & 189/2
HIRIKATI VILLAGE
GUNDLUPET TALUK
CHAMARAJANAGAR DISTRICT
... PETITIONER
(BY SRI P. MAHESHA, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER AND CHAIRMAN
STONE CRUSHER LICENSING & REGULATION AUTHORITY
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313
2. THE DEPUTY DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313
3. THE KARNATAKA STATE POLLUTION
CONTROL BOARD
PARISARA BHAVANA
NO.49, CHURCH STREET
BENGALURU - 560 001
BY ITS SECRETARY
4. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF COMMERCE AND INDUSTRY
VIKASA SOUDHA
BENGALURU - 560 001
... RESPONDENTS
(BY SRI V. G. BHANUPRAKASH, AGA FOR R1, R2 & R4;
SRI GURURAJ JOSHI, ADVOCATE FOR R3)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ENDORSEMENT ISSUED BY THE
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SECOND RESPONDENT THE DEPUTY DIRECTOR, MINES AND
GEOLOGY, CHAMARAJANAGAR DATED 20.11.2018 VIDE
ANNEXURE-H AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
JUDGMENT
In W.P.No.2269/2019 c/w W.P.Nos.20076/2019, 20077/2019, 2268/2019 and 2304/2019, the petitioners were granted licences under sub-rule (1) of Rule 3 of the Karnataka Regulation of Stone Crushers Act, 2011 (for short 'the said Act of 2011') to carry on the business of stone crushing. Section 4 of the said Act of 2011 which is material for consideration in these petitions reads thus:
"4. Application for license.- (1)Every application for grant or renewal of license to carry on the business of stone crushing under this Act shall be made to the Licensing Authority in such form, in such manner, accompanied by such documents and such fees as may be prescribed. An application for renewal of license shall be made to the Licencing Authority three months before the expiry of the license.
(2) On receipt of application for grant or renewal of license, the Licensing Authority shall cause joint inspection of the location under sub-section (3) of section 6. After declaration of safer zone, the Licensing Authority shall issue a certificate of consent of safer zone to the applicant. If the area proposed in the application is not declared as safer zone, the Licensing Authority shall reject the application for the reasons to be recorded in writing and inform the applicant accordingly. However, applicant is at liberty to make fresh application for alternate location.
(3) If the Licensing Authority issues a certificate of consent of safer zone, the applicant shall approach the -8- Karnataka State Pollution Control Board and obtain Consent for Operation (CFO) and submit the same to the Licensing Authority."
(underline supplied)
2. As can be seen from sub-section (1) of Section 4 of the said Act of 2011, an application for renewal of licence is required to be made three months before the expiry of licence. In none of these petitions, admittedly the petitioners have made the applications for renewal of their licences to the Licencing Authority three months before the expiry of the licences.
3. There is a challenge to the constitutional validity of sub-section (1) of Section 4 of the said Act of 2011 only to the extent to which the provision provides for making an application for renewal of licence three months before the expiry of licence.
4. The first submission of the learned counsel appearing for the petitioners in support of the challenge to the constitutional validity of sub-section (1) of Section 4 of the said Act of 2011 is that the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'the said Act of 1957') is the parent Act and the provision of sub-section (1) of Section 4 of the said Act of 2011 is contrary to the parent Act. The learned counsel draws support for his submission from sub-section (2) of Section 2 of the said Act of 2011. His second submission is -9- that the provision of sub-section (1) of Section 4 of the said Act of 2011 becomes bad as there is no provision for condonation of delay. Thirdly, there are some other statutes governing licence in which a provision is made for making an application for renewal before the expiry of licence wherein there is a provision for condonation of delay in making an application. Lastly, he submitted that the provision which requires the licencee to make the application for renewal three months before the expiry of licence infringes the fundamental rights of the petitioners under sub-clause (g) of Clause (1) of Article 19 of the Constitution of India.
5. A submission which is common to all the petitions is that the endorsements of rejection of the applications for renewal were issued without placing the applications before the District Stone Crushers Licensing and Regulation Authority constituted under Section 8 of the said Act of 2011 which is empowered to deal with the application for renewal. It is further submitted that an opportunity of being heard was not granted to the petitioners by the Licensing Authority.
6. In W.P.Nos.20076/2019 and 2268/2019, the learned counsel appearing for the petitioners submitted that the
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Consent for Operation from the Karnataka State Pollution Control Board (KSPCB) was not received by the petitioners before expiry of three months from the date on which the earlier licences expired and therefore, the petitioners were prevented from making applications for renewal.
7. We have considered the submissions. Firstly, we deal with the issue of constitutional validity. The first submission made by the learned counsel appearing for the petitioners is that the said Act of 1957 is a parent Act and therefore, the provision of sub-section (1) of Section 4 of the said Act of 2011 is inconsistent with the provisions of the parent Act. This argument is based on sub-section (2) of Section 2 of the said Act of 2011 which reads thus:
"All other words and expressions used in this Act but not defined shall have the same meanings respectively assigned to them in the Mines and Minerals (Development and Regulation) Act, 1957 (Central Act 67 of 1957) and rules issued thereunder."
8. The effect of sub-section (2) of Section 2 of the said Act of 2011 is that the words and expressions which are not specifically defined under the said Act of 2011 will have the same meaning respectively assigned to them in the said Act of 1957. Apart from the fact that a concept of a parent Act of a
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State Statute is unheard of, by virtue of sub-section (2) of Section 2 of the said Act of 2011, it cannot be said that all the provisions of the said Act of 1957 stand incorporated in the said Act of 2011. We may also note that the challenge to the validity of sub-section (1) of Section 4 of the said Act of 2011 is not on the ground of lack of legislative competence. Hence, the first ground is without any merit.
9. The second ground of challenge is that there is no provision made for condonation of delay. Under Section 5 of the said Act of 2011, the original period of licence is for five years which can be renewed for a further period of five years subject to fulfillment of the conditions laid down under the said Act of 2011 or the Rules made thereunder. Sub-section (2) of Section 4 of the said Act of 2011 is applicable to both, the application for grant of a fresh licence and an application for renewal. After an application of renewal of licence is received, the Licensing Authority is required to conduct a joint inspection of the location in accordance with sub-Section (3) of Section 6 of the said Act of 2011. After declaration of the safer zone, the Licensing Authority is required to issue a certificate of consent of safer zone under sub-section (3) of Section 4 of the said Act of 2011. If the Licensing Authority issues a certificate of
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consent of safer zone, the applicant has to approach the KSPCB and obtain the Consent for Operation (CFO). When Section 5 of the said Act of 2011 provides for renewal of licence, normally the renewal has to be from the date of expiry of the licence. In case of application for renewal under sub- section (1) of Section 4 of the said Act of 2011, the procedure of making a joint inspection and declaration of safer zone is required to be followed. Thereafter, the applicant is required to obtain Consent for Operation. This procedure may take time of one or two months. That is the reason why the Legislature in its wisdom has provided that an application for renewal of licence must be made three months before the expiry of licence. By no stretch of imagination, the legislative act of fixing the period of three months can be said to be arbitrary or violative of Article 14 of the Constitution of India. The failure to provide a provision for condonation of delay will not make sub- section (1) of Section 4 of the said Act of 2011 bad in law. There may be other licensing statutes which may be providing that an application for renewal of licence could be made any time before the expiry of the period of licence. It all depends on the nature of the licensing provision and the nature of licence. There may be licences where the renewal is a matter
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of formality subject to payment of requisite amount. Under the said Act of 2011, the renewal is not a matter of formality. A safer zone is required to be declared after carrying out a survey and thereafter, Consent for Operation from the KSPCB is required. Therefore, we do not think that the third ground urged by the learned counsel appearing for the petitioners is a valid ground.
10. As far as the allegation of violation of fundamental right under sub-clause (g) of Clause (1) of Article 19 of the Constitution of India is concerned, per se, sub-section (1) of Section 4 of the said Act of 2011 does not take away the right to carry on the business of running a stone crusher. It only incorporates the procedure for making an application for renewal of the licence. In any case, in view of Clause (6) of Article 19 of the Constitution of India, the State is not prevented from making a law imposing reasonable restrictions on exercise any of the rights under sub-clause (g). This is apart from the fact that the provision of sub-section (1) of Section 4 of the said Act of 2011 does not infringe the fundamental rights under sub-clause (g) of Clause (1) of Article 19 of the Constitution of India. Therefore, there is no merit in the prayer for challenging the constitutional validity of the time limit
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provided under sub-section (1) of Section 4 of the said Act of 2011.
11. Admittedly, in all the cases in hand, the applications for renewal were not made within the time prescribed under sub-section (1) of Section 4 of the said Act of 2011. Therefore, it was not necessary to place the applications before the Licensing Authority. We may note here that by the judgment and order dated 21st June 2018 in W.P.No.1661/2018 in the case of M/s Abhinandan Stone Crushers and State of Karnataka and others, the provision of sub-section (1) of Section 4 of the said Act of 2011 is held to be mandatory. Therefore, we cannot find fault with the endorsements by which, the rejection of the applications for renewal was communicated to the petitioners as the applications were not filed within the time specified under sub- section (1) of Section 4 of the said Act of 2011.
12. On a plain reading of sub-section (3) of Section 4 of the said Act of 2011, the requirement of obtaining Consent for Operation comes into picture only after a certificate of consent of safer zone is issued by the Licensing Authority. Therefore, it was not necessary for the petitioners to wait till the
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Consent for Operation was granted by the KSPCB. The production of Consent for Operation along with the application for renewal of licence is not the requirement of law. Therefore, we cannot accept the contention raised by the learned counsel appearing for the petitioners that as consent for operation was not obtained, the application for renewal could not be made within the stipulated time.
13. There is also a prayer made seeking a writ of mandamus to make a provision for condonation of delay in filing the renewal application. While exercising the power under Article 226 of the Constitution of India, we cannot issue a writ of mandamus directing the Legislature to legislate in a particular manner or to amend a statute in a particular manner. Hence, we find that there is no merit in these petitions and accordingly, the same are rejected.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE SN