Karnataka High Court
M/S. Bramhalingeshwara Industries vs The Commissioner on 20 November, 2018
Bench: Chief Justice, S.Sujatha
W.P.No.13923/2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2018
PRESENT
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
AND
HON'BLE MRS.JUSTICE S.SUJATHA
WRIT PETITION NO.13923 OF 2018 (GM-MM-S)
BETWEEN:
M/S. BRAMHALINGESHWARA INDUSTRIES
KANAJAR
NEEREBAILUR
KARKALA TALUK
UDUPI DISTRICT
REP. BY THE MANAGING PARTNER
SRI SHAMSUDDIN T P
S/O SRI MUHAMMED
AGED ABOUT 48 YEARS,
THAZHATHEPOYIL HOUSE
POST: MADAVOOR NARIKKUNI
KOZIKODE-673585
... PETITIONER
(BY SRI. CHANDRANATH ARIGA K., ADVOCATE)
AND
1. THE COMMISSIONER
DEPARTMENT OF MINES & GEOLOGY
KHANIJA BHAVAN
W.P.No.13923/2018
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RACE COURSE ROAD,
BANGALORE-560001
2. THE DEPUTY COMMISSIONER
& THE CHAIRMAN
DISTRICT STONE CRUSHERS LICENSING &
REGULATION AUTHORITY,
UDUPI DISTRICT
RAJATHADRI
MANIPAL-576104
UDUPI DISTRICT
3. SENIOR GEOLOGIST
DEPARTMENT OF MINES & GEOLOGY
FIRST FLOOR, "A" BLOCK
RAJATHADRI
MANIPAL-576104
UDUPI DISTRICT
...RESPONDENTS
(BY SRI.V.G.BHANUPRAKASH, AGA)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE PROCEEDINGS AND ORDER
DTD.31.01.2018 VIDE ANNX-P PASSED BY THE R-2 AND
ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, CHIEF JUSTICE MADE THE
FOLLOWING:
W.P.No.13923/2018
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ORDER
This writ petition is directed against the order dated 31.01.2018 (Annexure-P), as passed by the respondent No.2, cancelling the quarry license issued to the petitioner for establishing a stone crusher unit in survey No.169 measuring 2 acres of Kanajaru village, Karkala Taluk, Udupi District on the ground that 10 acres of land in the above survey number is completely parambok land and the notification identifying the said land as safer zone is cancelled.
The relevant background aspects of the matter are as under:
The petitioner - stone crusher unit was installed in the year 1993 in survey No.169 measuring 2 acres of Kanajaru village, Karkala Taluk, Udupi District, after obtaining all requisite certificates from the authorities concerned and no- objection from the villagers. After coming into effect of the Karnataka Regulation of Stone Crushers Act, 2011 ['the Act of 2011'], the stone crusher was required to obtain licence from the Licensing Authority and that the licence will be issued for a stone crusher unit only within the safer zone. By virtue of W.P.No.13923/2018 -4- the notification dated 06.08.2013, the 10 acres of land in survey No.169 was declared as safer zone. In view of the new enactment, the petitioner applied for licence for establishment of a stone crusher unit, which was considered and licence was issued on 30.06.2016.
It is contended that on a complaint being made about running of the crusher, a joint inspection was conducted and it was found that there was no tank close to the crusher unit. In spite of such joint inspection being conducted, the respondent No.3 issued notice dated 24.07.2017 to the petitioner indicating that the Deputy Commissioner had again directed the Tahasildar concerned and the Panchyath Raj Engineering Sub-Division, Karkala to hold a spot inspection of the land and to submit a report. It was also directed to stop the crusher, till the spot inspection. The said notice dated 24.07.2017 was challenged before this Court in writ petition bearing Nos.34408-34409/2017, which came to be disposed of on 21.11.2017 setting aside the said notice.
It is further contended that on 11.12.2017, the respondent No.3 issued notice to the petitioner to show cause W.P.No.13923/2018 -5- as to why the licence be not cancelled under Section 10 of the Act of 2011, since the land on which the crusher is installed in a Government parambok land and the villagers had complained against running of the crusher to the Lokayuktha. The respondent No.3 by its proceedings dated 31.01.2018 cancelled the licence issued to the petitioner. Challenging the said order, the petitioner preferred W.P.No.8928/2018. This Court by the order dated 23.03.2018 set aside the order and remitted the matter to the Deputy Commissioner, Udupi District. However, by the notice dated 14.03.2018, the petitioner was informed to remove the crusher unit immediately, in view of the order passed by the respondent No.3 on 31.01.2018, identifying the land in survey No.169 as parambok land and thereby cancelling the declaration that 10 acres of land is safer zone.
Learned counsel for the petitioner would submit that the cancelling of the safer zone is illegal and arbitrary as the land was declared as safer zone only after consideration of the Tahsildhar's report in compliance with Section 6(3) of the Act and the Act does not empower the Licensing Authority to W.P.No.13923/2018 -6- cancel the safer zone. It is further submitted that such cancellation, without intimating the petitioner of the said proceedings, is in violation of the principles of natural justice.
Learned Additional Government Advocate has attempted to argue that before issuing the order impugned, the conditions for declaration of safer zone were verified by the authorities concerned and a copy of the notification was published in the Karnataka Gazette. It is contended that in RTC extracts, it is recorded that the land is water stock area and a water tank is constructed. Hence, the authorities concerned have re-examined the matter and passed the order cancelling the safer zone. The quarry lease and the crushing licence was erroneously sanctioned in favour of the petitioner for a land which falls under the Government parambok land, and it would cause serious threat to the tank and pollute the water and hence, sought for dismissal of the petition.
Having given thoughtful consideration to the rival submissions and having examined the record, we are clearly of the view that in parity with the order passed in W.P.No.13923/2018 -7- W.P.No.8928/2018, the impugned order in the present case also deserves to be set-aside and the matter deserves to be restored for reconsideration.
In the order dated 23.03.2018 in W.P.No.8928/2018, this Court has found that form-C issued to the petitioner was cancelled without dealing with the submissions made by the petitioner in his reply to the show cause notice and the order in question was not a speaking order. It was also observed that merely for the land in question being parambok, the licence in question could not have been cancelled.
In the present matter, it appears that while passing the order impugned for cancellation of Gazette Notification of safer zone, the petitioner was not even extended an opportunity of hearing and an order adverse to the existing right of the petitioner was passed.
In the totality of circumstances, it appears just and proper that the impugned order be set aside and matter be restored for reconsideration while allowing the petitioner to appear before the respondent No.2 to make his submissions. W.P.No.13923/2018 -8-
Accordingly, this writ petition is allowed to the extent indicated above. The order dated 31.01.2018 (Annexure-P) is set aside and the matter is restored for reconsideration of the respondent No.2.
The petitioner shall appear before the respondent No.2 on 13.12.2018 or any other date as may be notified by the respondent No.2, who shall take a fresh decision in the matter after extending an opportunity of hearing to the petitioner.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE ca