Karnataka High Court
Smt. Meena Lakhotia vs State Of Karnataka on 31 May, 2019
Equivalent citations: AIR 2020 (NOC) 67 (KAR), AIRONLINE 2019 KAR 919 2019 (4) AKR 111, 2019 (4) AKR 111
Bench: L.Narayana Swamy, P.S.Dinesh Kumar
1
WP No.30202/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY 2019
PRESENT
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
WRIT PETITION No.30202/2017 (GM-MM-S)
BETWEEN :
SMT. MEENA LAKHOTIA
W/O SRI SURESH KUMAR LAKHOTIA
AGED ABOUT 58 YEARS
RESIDING AT # 3A & B, ARCHIES COURT
SHANKAR SHET ROAD
PUNE-411 042 ... PETITIONER
(BY SHRI. D.L.N. RAO, SENIOR ADVOCATE FOR
SHRI. ANIRUDH ANAND, ADVOCATE)
AND :
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF COMMERCE AND INDUSTRIES
(MSME, MINES AND TEXTILE)
VIKASA SOUDHA
DR.AMBEDKAR VEEDHI
BANGALORE-560 001
2. THE COMMISSIONER /DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
KHANIJA BHAVAN
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WP No.30202/2017
RACE COURSE ROAD
BANGALORE-560 001 ... RESPONDENTS
(BY SHRI. A.S. PONNANNA, ADDL. ADVOCATE GENERAL FOR
SHRI. V.G. BHANUPRAKASH, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
GOVERNMENT ORDER DTD:28.12.2016 VIDE ANNEXURE-G
ISSUED BY THE R-1 AND DIRECT THE RESPONDENTS TO EFFECT
THE STATUTORY EXTENSION OF THE LEASE PERIOD OF THE
PETITIONER IN ACCORDANCE WITH THE PROVISION OF
SEC.8A[3] OF THE MINES AND MINERLS [DEVELOPMENT AND
REGULATION] ACT, 1957 ALONG WITH STATUTORY
AMENDMENTS AND EXECUTE THE LEASE IN FAVOUR OF THE
PETITIONER
THIS WRIT PETITION, HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.04.2019, COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY,
P.S.DINESH KUMAR J, PRONOUNCED THE FOLLOWING:-
ORDER
This writ petition is presented with a prayer to inter alia quash Government Order dated December 28, 2016 and to direct the respondents to execute a mining lease deed.
2. We have heard Shri. D.L.N. Rao, learned Senior Advocate for the petitioner and Shri.A.S.Ponnanna, learned Additional Advocate General for the State. 3 WP No.30202/2017
3. Briefly stated the facts of the case are, on January 16, 2007, petitioner submitted an application for grant of mining lease for Limestone and Dolomite over an area of 4.86 hectares in Sy. No.101(P) and 100(P) of Budnikhurd village, Ramdurg Taluk, Belgaum District. By a Notification dated June 10, 2011, the Director of Mines and Geology sanctioned grant of mining lease for Limestone and Dolomite (Non-scheduled minerals).
4. It is averred that petitioner obtained necessary clearances such as environmental clearance from the Forest and Ecology Department and 'Consent of Operation' from the State Pollution Control Board. Petitioner got the land converted for non-agricultural purpose and also paid environmental protection fees.
5. In the interregnum, Mines and Minerals (Development and Regulation) Amendment Act, 2015 (for short 'Amendment Act, 2015') was notified in the gazette on April 27, 2015.
4WP No.30202/2017
6. By Government Order dated December 28, 2016 (Annexure 'G'), the State Government ordered grant of mining lease only for Limestone in respect of 12 acres in a portion of Sy. No.100 and 101 for a period of 50 years. Hence, this writ petition.
7. Shri.D.L.N.Rao, learned Senior Advocate contended:
• that with issuance of sanction order on June 10, 2011, nothing more remained except execution of a lease deed;
• that the State Government have misconstrued the effect of Amendment Act, 2015;
• Section 10A(2)(C) of the Amendment Act, 2015, has no application to the facts of this case. Therefore, there was no necessity for issuance of order on December 28, 2016. All that the State Government was required to do is to execute the lease deed in petitioner's favour.5 WP No.30202/2017
8. Shri.A.S.Ponnanna, learned AAG, opposing the petition submitted that the Notification dated June 10, 2011 is nothing more than 'in principle approval' by the State Government. Unless mining lease is executed under Rule 31 of the Mineral Concession Rules, 1960 in Form-K, the provisions of Rule 10A(2)(C) of the Amendment Act, 2015, shall be applicable. Accordingly, he prayed for dismissal of this writ petition.
9. We have carefully considered the rival contentions and perused the records.
10. On June 10, 2011, the Director of Mines and Geology has passed following order:
GOVERNMENT OF KARNATAKA NO.DMG:MLS:52 AML 2007:10-11/3117 Office of the Director Department of Mines & Geology Khanija Bhavan, Race Course Road Bangalore-1, Dated:10.11.2011 NOTIFICATION In pursuance of section 5 read with section 8 of Mines and Minerals (Development and Regulation) Act, 1957 and in exercise of the powers delegated under the State Government, Notification No.CI 3 MMM 95, dated:
27-05-1995, the Director of Mines and Geology, Bangalore hereby sanction Grant of Mining Lease for Limestone and 6 WP No.30202/2017 Dolomite (Non-Schedule mineral) in part of Sy.No.100 & 101 over an area of 12.00 Acres, (4.85 Hectares) in Budanikhurd village, Ramdurg Taluk, Belgaum District, for a period of twenty (20) years, in favour of Smt Meena S. Lokhotia with the boundaries as mentioned below and as per the sketch furnished by the Director, Department of Mines & Geology, Bangalore subject compliance of the provision of MM (D&R) Act 1957 and MCR 1960 as amended from time to time and other applicable Acts and Rules, Environmental (Protection) Act 1986, EIA notification 1994 etc., as amended from time to time.
On the North by - Part of Sy.No.101
On the South by - Part of Sy.No.100
On the East by - Sy.No.111 of Budanikhurd
On the West by - Part of Sy.no.100 & 101
The grant of mining lease is subject to the terms and conditions stipulated under Rule of MCR 1960 as appended herewith. The Grantee should exercise the mining lease deeds within six (6) months from the date of this Notification as per Rule 31 of MCR 1960, failing which the same will be revoked.
Sd/-
DIRECTOR To Smt Meena S. Lokhotia Sy.No.5, Alla Nagar Bagnal Road, Koppal taluk & district
11. The above Notification is issued in pursuance of Sections 5 and 8 of the MMDR Act, 1957. The Director has issued the Notification in exercise of the powers delegated by the State Government. To a specific query made by us as to whether any further Government Order was necessary before execution of the mining lease, it 7 WP No.30202/2017 was fairly submitted by the learned AAG that no further order was necessary. He further submitted that in view of Amendment Act, 2015, petitioner's case had to be considered under Section 10A(2)(C). Placing reliance on paragraphs No.12, 21 and 24 in a Division Bench decision of the Hon'ble High Court of Madhya Pradesh, in the case of Savita Rawat Vs. State of M.P. and others [W.P. No.4278/2001 and connected cases], he argued that the provisions of Amendment Act, 2015 are applicable to the facts of this case.
12. In the case of Gujarat Pottery Works Vs. B.P.Sood, Controller of Mining Leases for India and others1 relied upon by Shri.D.L.N.Rao, it is held as follows:
"7. The granting of a lease is different from the formal execution of the lease deed. The Mineral Concession Rules, 1949, made under s. 5 of the 1948 Act and hereinafter referred to as the 1949 rules, deal with the procedure for the grant of mining leases in respect of land in which the minerals belong to Government, under Chapter IV. Rule 27 deals with 1 AIR 1967 Supreme Court 964 8 WP No.30202/2017 applications for mining leases. Rule 28A provides that when a mining lease is granted the formal lease shall be executed within six months of the order sanctioning the lease and if no such lease is executed within the aforesaid period, the order sanctioning the lease shall be deemed to have been revoked. It is really the sanctioning of the lease which amounts to the granting of the lease. Execution of the formal lease is only compliance with the legal requirements to make the grant legally enforceable.
8, 9, 10, 11, 12...........
13.We are, therefore of opinion that the lease in favour of Jagmal was really granted in December 1939 and that the execution of the lease in November 1951 was only to give a formal shape to the lease granted much earlier. The lease in suit therefore is a lease which comes within the expression 'existing mining lease' within r. 2(c) of the 1956 rules".
(emphasis supplied)
13. In the case of Savita Rawat relied upon by Shri.Ponnanna, Madhya Pradesh High Court was considering a batch of cases which were under different stages. Shri.Ponnanna, sought to contend that petitioner's case is similar to the batch of cases considered by High Court of Madhya Pradesh in which Madhya Pradesh Government had granted 'in principle 9 WP No.30202/2017 approval'. Paragraphs No.12 and 21 upon which reliance was sought to be placed by Shri Ponnanna read as follows:
"12. Whereas, the concession-holders and the applicant whose applications are at nascent stage have questioned the validity of the Amendment Act, 2015. The other category claiming to be covered by the exceptions carved under clause (a), (b), and (c) of sub-section (2) of Section 10A seeks direction to the respondents to complete the grant. In other words, we are called upon to deal with cases wherein form (Form F, Form F-2 and Form K of the Mineral Concession Rules, 1960) has not been executed by the competent authority and neither saved by amendment. This category seeks interpretation of sub-section (2) of Section 10A to include within the exception category of having right for grant of reconnaissance permit, prospecting licence or mining lease.
21. It is urged that the decision in-principle to grant reconnaissance permit/prospecting licence/mining lease having been taken by competent government, State or the Central, as the case may be, a right accrues in favour of such aspirants which being protected by virtue of sub-section (2) of Section 10A of Amendment Act, 2015; therefore, it is urged that, the State Government cannot decline execution of deed in favour of such applicants."10 WP No.30202/2017
14. A careful perusal of the above paragraphs shows that High Court of Madhya Pradesh was considering cases in which applications were at 'nascent stage' and 'in principle approval' was given.
15. In contradistinction, in the case on hand the State Government have granted the mining lease to the petitioner. Therefore, in our considered view, the ratio in Gujarat Pottery Works, is applicable to the facts of the case on hand. The provisions of Section 10A(2)(c) of Amendment Act, 2015 is applicable where Central Government have communicated their previous approval required under Section 5(1) of MMDR Act, 1957. The petitioner's mining lease has been granted in pursuance of Sections 5 and 8 of MMDR Act, 1957. Therefore, in our considered view, Section 10A(2)(c) of Amendment Act, 2015 is not applicable to the facts of the case. 11 WP No.30202/2017
16. In view of above discussion, this petition merits consideration. Hence, the following:
ORDER
(a) Writ Petition is allowed;
(b) Government Order No.CI 145 CMC 2016, Bangalore dated 28.12.2016 (Annexure 'G') is quashed and;
(c) Respondents are directed to execute the lease deed in favour of petitioner in pursuance of order dated June 10, 2011 (Annexure 'B') within a period of eight weeks from the date of receipt of a copy of this order.
No costs.
Sd/-
JUDGE Sd/-
JUDGE SPS