Karnataka High Court
Ramakrishna Shetty vs State Of Karnataka on 6 February, 2020
Bench: Chief Justice, Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.542 OF 2020 (GM-MM-S)
BETWEEN:
RAMAKRISHNA SHETTY
S/O CHANDAYYA SHETTY
AGED ABOUT 61 YEARS
BUSINESS,
BOTTA HOUSE, NEERE POST -574 102
KARKALA TALUKA
UDUPI DISTRICT
... PETITIONER
(BY SRI RAVINDRA GAJANAN KOLLE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY ITS CHIEF SECRETARY
VIDHANA SOUDHA, BENGALURU
BENGALURU-560 001.
2. THE SECRETARY TO GOVT.,
DEP. OF COMMERCE AND INDUSTRIES
VIKAS SOUDHA, BENGALURU,
BENGALURU-560 001.
3. THE DIRECTOR AND COMMISSIONER
DEPARTMENT OF MINES AND GEOLOGY
KHANIJA BHAVAN
RACE COURSE ROAD
BENGALURU-560 001.
4. THE SENIOR GEOLOGIST
DEPARTMENT OF MINES AND GEOLOGY
RAJATADRI, A BLOCK, I FLOOR
MANIPAL - UDUPI-576 104
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5. THE LAW OFFICER, DMG
DEPARTMENT OF MINES AND GEOLOGY
KHANIJ BHAVAN, RACE COURSE ROAD
BENGALURU-560 001.
... RESPONDENTS
(BY SRI Y.H. VIJAYAKUMAR, GOVERNMENT ADVOCATE)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT
R-4 SENIOR GEOLOGIST TO ISSUE MINERAL DISPATCH
PERMITS IN RESPECT OF LAWFULLY EXCAVATED ORDINARY
BUILDING STONES IN GOVT., LAND BEARING SY.NO.329/1 OF
YERLAPADI VILLAGE, KARKALA TALUKA, UDUPI DISTRICT,
OVER AN AREA OF 02.00 ACRES AS PER QL DEED AT
NO.3232/R-1 DATED 14.03.2017 VALID UP TILL 11.01.2027
PRODUCED AT ANNEXURE-D AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER
Issue notice to the respondents. The learned Government Advocate takes notice for the respondents.
2. Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents. The petition is forthwith taken up for final disposal.
3. On 14th March 2017, a quarrying lease was granted to the petitioner for excavating the building stone which is valid upto 11th January 2027. According to the case of the petitioner, the quarrying lease is still subsisting. On 19th November 2019, an -3- application was made by the petitioner under Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994 (for short 'the said Rules of 1994') for grant of permission to transport the minor minerals excavated by him on the basis of the quarrying lease. The prayer in this petition under Article 226 of the Constitution of India is for issuing a writ in the nature of mandamus to issue mineral dispatch permits (MDP) to the petitioner in respect of the lawfully excavated building stone on the basis of the aforesaid quarrying lease.
4. The learned counsel appearing for the petitioner relies upon the judgment and order dated 27th November 2019 passed by this Court in W.P.No.46564/2019 as well as the judgment and order dated 30th May 2019 passed in W.P.Nos.21678-21679/2019 and in particular, what is held in paragraph 7 thereof.
5. The learned Government Advocate submitted that a First Information Report has been registered against the petitioner alleging commission of offences punishable under Section 9B(1)(b) of the Explosive Act, 1884, Section 5 of the Explosive Substances Act, 1908 read with Section 113 of the Explosive Rules, 2008 and therefore, there is difficulty in the way of granting MDP.
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6. We have considered the submissions. We are proceeding on the footing that the quarrying lease granted to the petitioner on 14th March 2017 (Annexure-D) is valid and subsisting. The issue of MDP is governed by Rule 42 of the said Rules of 1994, which reads thus:
42. Transport of Minor Minerals. - (1) No person shall transport or cause to be transported any minor mineral except under or in accordance with a Computerized Mineral Dispatch Permit in Form MDP(A) generated in electronic form (e-Permit or m-Permit) by the licence/leaseholder or his authorized person and issued using Special Security Permit Paper (SSPP) sheet obtained from the Competent Authority or any other officer authorised by the Director.
(2) Any person desiring to transport the minor mineral by road, by rail or any other means of transport shall after payment of royalty apply in Form AP to the concerned Competent Authority in electronic form along with rupees fifty as processing fees for each Mineral Dispatch Release Order (MDRO) for specified bulk quantity of specified or non-specified minor mineral intended to transport.
(3) The Competent Authority after such enquiry as it deems fit, if satisfied that the information furnished in the application is correct and the applicant is entitled for a MDRO, it may issue a MDRO in Form MDRO and enable the leaseholder to generate CMDP's. However the validity of such MDRO shall be thirty days:
Provided that where the Computerized Mineral Dispatch Permit is generated by the lessee himself, if there is any error in weight, volume, royalty etc., the lessee is solely held responsible as per Rule 43.-5-
(4) The Computerized Mineral Dispatch Permit shall be generated in electronic form and issued by leaseholder or his authorised person using SSPP sheet obtained from Competent Authority on the basis of One Permit for One vehicle.
(5) The validity of CMDP's issued by leaseholder or his authorised person shall be one hour for each ten kilometer of distance or fraction thereof from the date of issue and two hours of additional time together for loading and unloading of the minor mineral:
Provided that the Competent Authority of the concerned district may, on a written request by the holder of permit and after such enquiry as it deems fit renew the permit and in case of mineral in transit, the concerned jurisdictional Competent Authority may renew subject to collecting processing fee and SSPP sheet fee, if any upon recording the reasons and issue fresh CMDP."
7. In view of sub-rule (3) of Rule 42 of the said Rules of 1994, after the application is filed in accordance with Rule 42, on making all the procedural compliances, the Competent Authority is required to make an inquiry and satisfy itself that the information furnished in the application is correct and that the applicant is entitled to a Mineral Dispatch Release Order (MDRO), and then MDRO is required to be issued which is valid for thirty days.
8. Now we will come to the decisions relied upon by the learned counsel appearing for the petitioner. As far as the -6- decision in W.P.No.46564/2019 is concerned, a writ in the nature of mandamus was prayed for issuing MDP/MDRO in accordance with Rule 42 of the said Rules of 1994. In this case, a notice was served to the petitioner calling upon him to show cause as to why the lease should not be cancelled. The Division Bench found that the mining lease was valid and subsisting and therefore, directed issue of MDP.
9. In W.P.Nos.21678-21679/2019, the petitioner was granted two mining leases which were valid and subsisting. Notice was issued calling upon the petitioner to show cause as to why the mining leases should not be cancelled on various grounds stated therein. The only grievance in the petition was as regards denial of MDPs for transporting the minor mineral excavated from the leased area in respect of one of the two leases. In paragraph 7 of the said decision, the Division Bench has held thus:
"So long as the mining lease is valid and subsisting, the respondents cannot refuse to issue MDP in respect of minerals lawfully excavated by the petitioner from the leased area. Only on the ground that there is a demand for penalty and that a show cause notice of cancellation has been issued, MDP in respect of minerals lawfully excavated on the basis of subsisting lease cannot be denied."
(underline supplied) -7-
10. Therefore, if the case is covered by Rule 42 of the said Rules of 1994, notwithstanding the registration of the First Information Report, MDRO or MDP cannot be denied to the petitioner. Therefore, the application made by the petitioner on 19th November 2019 will have to be decided in the light of the legal position which we have set out above.
11. Accordingly, we dispose of the petition by passing the following order:
The application dated 19th November 2019 (Annexure-C) shall be disposed of by the Competent Authority within a period of three weeks from today in the light of the legal position which we have referred in the judgments.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE AHB