Karnataka High Court
D Muniraju vs The State Of Karnataka on 9 January, 2023
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
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WP No. 7689 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT PETITION NO.7689 OF 2022 (GM-MM-S)
BETWEEN:
D MUNIRAJU
S/O LATE DASAPPA
AGED ABOUT 58 YEARS,
R/O NO.13/2, APARTMENT NO.F1,
FIRST STAGE, KHB COLONY,
BASAVESHWARNAGAR,
BENGLAURU-560 079.
...PETITIONER
(BY SRI. BHARATH KUMAR V, ADVOCATE)
Digitally signed by AND:
R DEEPA
Location: High
Court of Karnataka 1. THE STATE OF KARNATAKA
THROUGH CHIEF SECRETARY TO GOVERNMENT,
COMMERCE AND INDUSTRIES DEPARTMENT,
(MSME AND MINES)
VIKASA SOUDHA, AMBEDKAR VEEDHI
BENGALURU-560 001.
2. DEPUTY DIRECTOR (M.A.)
DEPARTMENT OF MINES AND GEOLOGY,
NO.49, KHANIJA BHAVAN, RACE COURSE ROAD,
BENGLAURU-560 001.
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WP No. 7689 of 2022
3. SENIOR GEOLOGIST (MINES)
DEPARTMENT OF MINES AND GEOLOGY,
CHIKKABALLAPURA DISTRICT,
KARNATAKA-562 101.
4. THE DEPUTY COMMISSIONER
CHIKKABALLAPURA DISTRICT,
CHIKKABALLAPURA.
KARNATAKA -562 101.
5. THE PRL. CHIEF CONSERVATOR OF FOREST
(HEAD OF FOREST SQUAD)
ARANYA BHAVAN,
18TH CROSS, MALLESWARAM,
BENGALURU-560 003.
6. THE CHIEF CONSERVATOR OF FOREST
(REGIONAL OFFICE)
BENGALURU CIRCLE,
VANAVIKAS, 4TH FLOOR,
18TH CROSS, MALLESWARAM,
BENGALURU-560 003.
7. THE DEPUTY CONSERVATOR OF FOREST
CHIKKABALLAPUR DISTRICT,
CHIKKABALLAPURA
KARNATAKA-562 105.
....RESPONDENTS
(BY SRI. S.S MAHENDRA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT, ORDER OR DIRECTION IN THE NATURE OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION QUASHING THE ORDER DATED 14/02/2022
PASSED BY THE 1ST RESPONDENT WHEREBY THE APPLICATION
FOR GRANT OF QUARRYING LEASE DATED 06/01/2015 IN
SY.NO.43 OF DARBUR VILLAGE, MADIKALHOBLI,
CHIKKABALLAPUR TALUK AND DISTRICT TO AN EXTENT OF 4
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WP No. 7689 of 2022
ACRES OF LAND OF THE PETITIONER WAS HEREBY REJECTED
(ANNEXURE-A).
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, ASHOK S. KINAGI, J., MADE THE
FOLLOWING:
ORDER
The petitioner filed this writ petition seeking for quashing the order dated 14.02.2022, passed by respondent No.1 vide Annexure-A; order dated 18.02.2019, passed by respondent No.2 vide Annexure-B and order dated 28.11.2018, vide Annexure-C and further sought for mandamus directing respondent No.2 to consider the application dated 06.01.2015, filed by the petitioner seeking for quarrying licence in respect of 4 acres of land in Sy.No.43 of Darbur Village.
2. Brief facts leading rise to filing of this writ petition are as under:
The petitioner filed an application seeking quarrying lease for granite (minor minerals) on 06.01.2015, in land bearing Sy.No.43 measuring 4 acres of Darbur Hobli, for a period of 20 years. Respondent No.2 requested the Forest -4- WP No. 7689 of 2022 Department to furnish its opinion as mandated under Rule 8(5) of the Karnataka Minor Minerals Concession Rules, 1994 (for short 'the Rules of 1994') on 11.02.2015. The Rules of 1994 came to be amended on 12.08.2016. In view of the amended rules, a joint inspection was conducted and panchanama was drawn. The Range Forest Officer, Chikkaballapur, opined that land in Sy.No.43 of Darbur Village measuring 4 acres was to be declared as a reserve forest in accordance to Section 4 of the Karnataka Forest Act, 1963, and further observed that quarrying activities would not be suitable in such area. Respondent No.2 passed the impugned order rejecting the application filed by the petitioner vide order dated 18.02.2019. The petitioner aggrieved by the order passed by respondent No.2 preferred a Revision before respondent No.1. Respondent No.1 after hearing both the parties and considering the submissions and material placed on record, dismissed the revision petition filed by the petitioner vide order dated 14.02.2022, vide Annexure-A. -5- WP No. 7689 of 2022 The petitioner aggrieved by the impugned orders, filed this writ petition.
3. Leaned Additional Government Advocate filed statement of objections contending that the petitioner has filed an application seeking for lease of land on 06.01.2015. The Rules of 1994 was amended w.e.f. 12.08.2016. Rule 8-B contemplates the status of application received. Sub-rule (1) of Rule 8 of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016, (for short 'the Amendment Rules of 2016') contemplates that all applications received and pending for grant of lease or licence prior to the date of commencement of the Amendment Rules of 2016, shall become ineligible. It is contended that the petitioner applied for a specified mineral. The Rules of 1994 was amended with effect from 12.08.2016. Rule 8-B contemplates the status of application received. Sub- rule(1) of Rule 8 of the Amendment Rules of 2016 contemplates that all applications received and pending for -6- WP No. 7689 of 2022 grant of lease of licence prior to the date of commencement of the Amendment Rules of 2016 shall become ineligible. However, certain exceptions are carved out under Sub-rule (2) of Rule 8-B of the said Rules. The petitioner applied for grant of specified mineral. Clause
(d) of Sub-Rule(2) of Rule 8-B shall be applied for grant of lease. In order to grant lease in respect of gomal land, certain conditions require to be complied with, i.e., NOC from the Deputy Conservator of Forest, Assistant Commissioner (Revenue) and the Deputy Director or Senior Geologist (Joint Inspection Report). The NOC and joint inspection report shall be received in the office of the Directorate of Mines & Geology before the commencement of the Amendment Rules of 2016, i.e., 12.08.2016. It is contended that the Directorate of Mines & Geology did not receive the NOC from the Forest Department prior to 12.08.2016. On this count, the application of the petitioner is not saved under Rule 8(b)(1) of the Rules of 2016. The competent authority rejected the application of the petitioner vide order dated 08.02.2019 and same was -7- WP No. 7689 of 2022 upheld by the Revisional Authority. Hence prayed to dismiss the writ petition.
4. Heard learned counsel for the petitioner and learned Additional Government Advocate for the respondents.
5. Learned counsel for the petitioner submits that the petitioner has submitted an application for grant of lease on 06.01.2015 and respondent No.1 failed to appreciate the mahazar dated 30.09.2018 and the report dated 01.10.2018. He further submits that the respondent No.1 has failed to appreciate the principle laid down by this Court in W.P.Nos.54476/2016 c/w 51135/2016 in the case of DHANANJAY VS. THE STATE OF KARNATAKA & ORS., AND M/S. SHILPI GRANITE EXPORTS VS. STATE OF KARNATAKA & ORS., disposed on 12.06.2019. He submits that this Court in Dhananjay's case held that the concept of deemed forest or the concept of land awaiting notification under Section 4 of the Karnataka Forest Act has been foreign to the laws of the State and he further -8- WP No. 7689 of 2022 submits that the competent authority as well as the revisional authority committed an error in passing the impugned orders. Hence on these grounds he prays to allow the writ petition.
6. Per contra, learned Additional Government Advocate submits that petitioner has submitted an application for grant of lease on 06.01.2015. Meanwhile, the Rules of 1994 was amended w.e.f. 16.12.2013. Sub- rule (1) of Rule 8 contemplates that all applications received and pending for grant of lease of license prior to the date of commencement of the Amendment Rules of 2016, shall be ineligible. He submits that as per Rule 8(2)(d) of the Amendment Rules of 2016, the Revenue Authorities as well as Forest Authorities are required to submit NOC before 12.08.2016. In the present case, the respondent has not received NOC from the Forest Department. In the absence of NOC, the application of the petitioner was rendered ineligible. In order to buttress his argument he has placed reliance on the orders passed by -9- WP No. 7689 of 2022 the Co-ordinate Bench of this Court in the case of YATHEESHSWAMY VS. THE SENIOR GEOLOGIST & ORS., in W.P.No.9713/2021, disposed on 13.08.202, and in the case of SMT. L.DIVYA VS. THE STATE OF KARNATAKA & ORS., in W.P.No.9714/2021, disposed on 09.08.2021. Hence on these grounds he prays to dismiss the writ petition.
7. Perused the records and considered the submissions of the learned counsel for the parties.
8. In order to consider the case in hand, it is necessary to examine Rule 8-B of the Rules of 1994, which reads as under:
"8-B. Status of applications received.-
(1) All applications received and pending for grant of lease or license prior to the date of commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016, shall become ineligible including the applications received for grant of mining leases of the minerals that are now classified as minor mineral. (2) Notwithstanding anything contained in sub-
rule (1), the following shall remain eligible on and
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WP No. 7689 of 2022from the commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016, namely:-
(a) Applications received upon the notification issued under Rule 8-B existed before the Karnataka Minor Mineral Concession (Amendment) Rules, 2016.
(b) Where the Committee that existed under the provisions of Rule 11 or District Task Force Committee has recommended for grant of a quarrying lease or license for grant of mining lease, before the commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016.
(c) Where in the case of minerals now re-
classified as minor mineral by the Central Government by Notification No.S.O.423(E), dated 10.2.2015, no objection certificates from revenue and forest departments and the approved mining plan from the Indian Bureau of Mines (IBM) have been received before commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016.
(d) Applications received and pending for grant of lease or license in case of specified minor minerals before commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016, and for which No Objection Certificate (NOC) have been received in the office of Directorate of Mines and Geology from the Deputy Conservator of Forest for all Lands, Deputy Commissioner in case of Kharab lands, Assistant Commissioner (Revenue) and Deputy Director or Senior Geologist (Joint Inspection Report) in case of Gomala lands in accordance with the Circular No.RD 72 LGP 98, dated 24.02.1999 before
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WP No. 7689 of 2022commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016 and shall be considered and disposed by the State Government, subject to obtaining No Objection Certificate (NOC) from the Deputy Commissioner of the concerned districts before grant;
(d-1) Applications received and pending for grant of lease or license in the case of non- specified Minor Minerals before commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016 and for which No Objection Certificates (NOCs) have been received in the Department of Mines and Geology of the concerned District Office, from the Deputy Conservator of Forest for all lands, Tahsildar in the case of Kharab lands, Assistant Commissioner and Deputy Director of Senior Geologist (Joint inspection report), in the case of Gomala lands, before commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016, and shall be processed by the Competent Authority as under the existing rules before commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016.
(e) These applications shall be considered for grant of quarrying lease or license, or otherwise as per the provisions that existed before the Karnataka Minor Mineral Concession (Amendment) Rules, 2016 subject to fulfillment of the conditions specified for the same, if any and registration of leases or license deed within a period of twenty- four months from the date of commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016."
(emphasis supplied)
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WP No. 7689 of 2022
9. Sub-rule (1) of Rule 8-B of the Rules of 1994, contemplates that all applications for grant of quarrying lease which were pending as on 12.08.2016, were declared as ineligible. Only those applications which are covered by any of the clauses (a) to (d), (d-1) & (e) of Sub-rule (2) of Rule 8-B, of the Rules of 1994, were saved from the applicability of Sub-rule (1) of Rule 8-B of the Rules of 1994.
10. Sub Rule(2) of Rule 8-B operates as an exception to the general rule contained in Sub-Rule 1 of Rule 8-B of the Rules of 1994.
11. In the present case, learned Additional Government Advocate relying upon Clause (d-1) of Sub- Rule 2 of Rule 8-B of the Rules of 1994, contended that the petitioner did not comply the condition incorporated in clause (d-1). As per Rule 8-B(2)(d) of the Amendment Rules of 2016, in order to grant lease in respect of gomal land, the following conditions shall be complied with:
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"a) No objection certificate (in short 'NOC') from the Deputy Conservator of Forest.
b) Assistant Commissioner (Revenue) and Deputy Director or Senior Geologist (Joint Inspection Report) in case of Gomal lands in accordance with the Circular No.RD 72 LGP 98, dated 24.02.1999. The aforesaid NOC and Joint Inspection shall be received in the office of Directorate of Mines and Geology before the commencement of KMMCR, 2016 i.e., 12.08.2016.
c) The Forest NOC has contemplated in 8(B)(2)(d) of KMMCR, 2016 was also not received in the office of Directorate of Mines and Geology prior to 12.08.2016. On this count also the application of the petitioner is not a saved application under 8(B)(1) of KMMCR, 2016, as held by the Division Bench of Hon'ble High Court of Karnataka in W.P.No.9713/2021 dated 13.08.2021 in the case of Yathish Swamy Vs. State of Karnataka. The copy of the judgment dated 13.08.2021 in WRIT PETITION.No.9713/2021 is produced and marked as Annexure-R1."
12. In the present case, the petitioner has applied for grant of quarry lease and no joint inspection report, as contemplated under Rule 8-B(2)(d) of the Rules of 1994, was received in the office of the Directorate of Mines and Geology. The said NOC is pre-requisite for consideration of the grant of quarrying lease and it is essential that NOC from the forest department is one of the pre-requisite required for grant of quarrying lease. In the instant case,
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WP No. 7689 of 2022the forest department has categorically opined that the area in question falls within the definition of deemed forest and the Deputy Conservator of Forest refused to grant NOC, which is pre-requisite. If such NOC is not received as on 12.08.2016, the application of the petitioner is not saved under Rule 8-B(1) of the Amendment Rules of 2016. The competent authority rejected the application of the petitioner vide order dated 03.07.2017 under Rule 8-B(1) of the Amendment Rules of 2016. Observing that the application of the petitioner as ineligible, the issue involved in this writ petition is squarely covered by the decision of this Court in the case of Sri YATHEESHSWAMY AND SMT. L.DIVYA (SUPRA), wherein this Court has held that the requirement of Clause (d-1) Sub-rule (2) of Rule 8-B that, no objection certificate must have been received in the office of the directorate of Mines & Geology before 12.08.2016, from the Deputy Conservator of Forest for all lands, Deputy Commissioner in the case of kharab lands, Assistant Commissioner (Revenue) and Deputy Director or Senior Geologist. If such condition is not satisfied, then
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WP No. 7689 of 2022the application filed by the applicant becomes ineligible under Sub-rule (1) of Rule 8-B of the Rules of 1994. As observed above, the Deputy Conservator of Forest, Chikkaballapur submitted a report stating that the proposed area for stone crushing is falling in 73:36 hectares of Darbur Block for which proposal submitted for issuing notification as a reserved forest area under Section 4 of the Karnataka Forest Act, 1963 and informed not to grant permission for stone quarrying in land bearing Sy.No.43 measuring 4 acres of Darbur Village and not to consider the proposal submitted by the petitioner for stone quarrying. In view of the objection raised by the Deputy Conservator of Forest, Chikkaballapur, the competent authority rejected the application of the petitioner on the ground that the proposed area falls under the limits of Forest. The competent authority was justified in rejecting the application filed by the petitioner. The Revisional Authority after re-appreciation of the material on record was justified in dismissing the revision petition.
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WP No. 7689 of 2022
13. In view of the above discussion and considering the law laid down by the Co-ordinate Bench of this Court in the case of SRI YATHEESHSWAMY AND SMT. L.DIVYA (SUPRA), we are of the considered view that the petitioner has not made out any grounds to entertain the writ petition and accordingly, we do not find any error in the impugned orders. Hence, we proceed to pass the following:
ORDER The writ petition is dismissed.
In view of disposal of the writ appeal, pending IAs., if any, do not survive for consideration and are accordingly disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE RD/ssb