Karnataka High Court
Santosh Krishna Kalgutkar vs State Of Karnataka, on 15 March, 2010
Equivalent citations: AIR 2011 KARNATAKA 49, 2010 (3) AIR KANT HCR 186, 2010 A I H C 3390, (2010) 4 KANT LJ 535
Author: B.S.Patil
Bench: B.S.Patil
IN THE HIGH COURT OF' KARNATAKA AT BANGALORE:
DATED mls THE) 15TH DAY OF MARCH, 2AQ_1§ ': u
PRESENT 3: & R
THE HONBLE MRJUSTICE
AND , _ ._ ..
THE HONBLE MRJ-1.Jj'ST1cE.I;5.~S.PAfr:Lu"~-- '"
W.P.No.38007;'20(i9' [GfMf,hJM 'SJ
W.P.Nos.66731/2.009 & 583.09/2009 (Gr.r=...Mn.i--s)
1. Santosh K1fish;I1a K:11g'.1t}g<ar, --
Aged about 44 'y"'téfié1rgf ~ '
Occ: Business,' _ "
R/ at CaI1"ara%Bari1-:_ C'0iony_;.;
Padmanab1'i"1\{aga.r;~
Baafgl, Karwar 4' 583 303.
I ., w'I1db'A}'{risfi11a Kalgutkar,
zibqut 'ii-I years,
' OCS ~ BVusin.¢ss;,' ' "
R,/__at Ca_r;a1'a_ Bank Coiony,
_ Padma:V1abh'Nagar,
Baad; Karwar -- 583 303. PETITIONERS
'(i:3y'.$fi"'g.fayakumar S.Pati1, S1". Counsel for
_ *,'NI/'s.Jayakumar S,Patil Assts., .Advs.]
VT Léhfifiiiz
" 1. State of Karnataka,
Department of Mines and
Zooiogy, by its Secretary,
M.S.Buildi.r1g,
Dr. Ambedkar Veedhi,
Bangalore -- 560 001.
2. Government of Karnataka,
Commerce and Industrial
Department, by its
Secretary, M.S.Buiiding,
Dr. Ambedkar Veedhi,
Bangalore -- 560 001. {_R1g:.Sf1é'or:i:)Ers:1's,
(BY Sri Ashok Haxnahalli, Advocate Ge13.¢1;;a.1 for * . ~. "
sn R.G.Ko11e,AGA) ' " =
IN W.P.No.38007/ 2009
BETWEEN:
Sn' Binny Abraham. _ H .4 '
S/0 Sri Abraham". 'I 'V
Aged about 44 ye2;rs, é
R/o Kot31yaar«u'n1ane,':"'1
Nekkiladi. village, ' _ t _
Mardaala Nettanap Post, 1 "
Putturu,'I'a1uk," _
V.Daksh.i§na KannadaV._L):stnfct. PETITIONER
tam
éiagtnmdra, Adv.)
V .1. Stétte ot'.Ka;'r1ataka.
Rep. by its Secretary (Mines),
V. Department of Commerce & Industries,
Vikatsa Soudha, W Floor,
'Dr'. Ambedkar Road,
Bangalore ~-- 560 001.
The Director of Mines and Geology,
Department of Mines and Geology,
Khanija Bhavan, 5"' Floor,
Race Course Road,
Bangalore -~ 560 001.
3. The Deputy Director of Mines
8: Geology. Mangalore.
Department of Mines 8: Geolog/.
Mizaz Complex, Pandeswar, I «. y _:. _ "V ._ V
Mangalore.
[By SriAshok Harnahalli, Advooa-to oene:oi" for - t' . M K t
Sri R.G.Ko11e, AGA) V. ' --
w.P.Nos.6673i/200é 'A ,_e3t ' . is filed under
Articles 226 & 2270f the praying to quash
the order or notifficaiion i.\foA.ci_.2'50}'i»1i\di'\i:2o09 dated 28.08.2009
[Annexure~C) Article l9{1}[g) of the
Constitution. _ '
w.P;No..3800V7i,?2009.tired under Articles 226 81 227 of
the C0I1Stit1ii't'.iu()"I1_C)Vf' _Ind.ia,'praying to quash the Government
Order dated 28V.G~8_._V2OO9 ride AnneXure»~D passed by the R1, in
so faras the p--etitioner"i's'concerned.
it having been heard and reserved for
ordeison 110, Coming on for 'Pronouncement of Order',
p on this BV.S.PatiI J., made the fo11owing:~
ORDER
'The grievance made by the petitioners in these writ 'dpetitions are similar. Therefore, they are clubbed, heard r and are disposed of by this common order.
2. In "W.P.No.3800'7/2009, petitioner is can'ying...o1ie'_:»s.and quarrying operations in D.K.District. He application before respondent No.3 -~ Deputy Director. 08: ~» g Geology, Mangalore, seeking grantgv of extraction of ordinaiy sand from' No.'1.5'4-P1 of VTii1age_,:' :
Puttur Taluk of Dakshina 'Resporident No.3 granted quarrying 27.v1'H0.iv?v.0O9 for a period of 90 days p€I'I}.'1.i_tV_'[V_iV1:7'.1g_ and transport ordinary sand Kumaradhara river bed. Royalty. collected from the petitioner." produced at Annexure-«A. The quarrying' permit' valid upto 26.01.2010. , 'grievanc-eipof the petitioner is that mineral dispatch A'V_p€'.I':1"fl.i'{_v to 'transport the extracted ordinary sand is granted iniposirigv"aflcondition that the permit was not valid for V .trans0p'orting State of Kerala. This condition is imposed on ground that the State Government has passed an order 28.08.2009 imposing prohibition of transportation of 0 "ordinary sand outside the State. The said Government Order is ,, U .p%g1ced at Annexure-E). Aggrieved by the same, he has filed this writ petition challenging the Government Order taking up various legal contentions.
4. In W.P.Nos.66731/2009 8: 66809/2009;
petitioners have filed a joint Writ petit.ion_4con*tendihfg. of them have secured necessary perria,issi'o1i'iVfor».quar1yi11g-..sa:'1d from the Department of MinesgpandlA'v-fjteclogyn on..l' 10.09.2009 and 05092009, respe:ctiye1y. Ithis their contention that the distance betweenliarvyar%{,and'*--E§'0ngaEore is about 600 Kms. They have engaged:.severa.1 temporary basis in the extraction sand and the petitioners eke out 2the1'r the business they carry on. It is their grievance Vhanpilimposed for transportation and sale of sandin "neigh.boui.'in«g.. State has resulted in serious loss at land to thei'r"'i'nterest. They have urged that the cost of crdirilary ::s'and'Vt'p.;§f:..load is Rs.1,580/» and if they are made to transport the' to Bangalore, the cost of transportation itself . «J'W,1'1l Worl§_o1';:t to Rs. 1 1,000/--, whereas the distance between the of extraction and the collection centre at Margoa is only 2 hours journey and therefore by imposing the ban, the V n ipright of the petitioners to carry on the trade and business freely mg;/been seriously affected. It is aiso contended that ordinary sand is supplied to Bangalore from the neighbouring districts such as Kolar, Chikkaballapur, Ramanagar, Tumkur, Mysore, Mandya, Chamarajanagar, Hassan, Bangalore Bangalore, and the present ban imposed ordinary sand from other Districftsml dotheiq [1the5'=o}:e mentioned above is illegal and contrarAlv'.to:'1_aA.v\r.
5. Learned Senior Counsel Sri'-da§,rakumar S.l.5atil.:appearingll for the petitioners in w.P';Nps.6s?'3§;/2o0a_ & 6680972009 and learned Counsel Sri for the petitioner in W.p.No.380o*?i1;2;o09:j_ -.4Vi'eIe;eyeseed several legal contentiozv-lrl1s.ll H V g _
6. Oil are/bellialf of learned Advocate General Sri Ashok Haranahvalli. hasl'--._su'pported the impugned Government '~o:deri.£i:atee1 2s.0aé0oa--.~ * _ Government Order has banned V G transportation «llof ordinary sand from Kamataka to other States W H " the reasons stated in the preamble to the Government Order. it eTlhe"reasons assigned for imposition of such a ban are as transported to outside States and the public have also complained in this regard. As the State is_.._facing shortage of ordinary sand for the purpose o_f..o;ri.__go_ing developmental works and as the States of Andhra Pradesh and Kerala it transportation of ordinary~»» sancll outside their it respective States, a suggestion is Iriiadepbyl the "I'iirec:toi' of Mines and Geologr on 24.012009 to»i.--i;1pos'e si.1r1"ilarp ban on the transportatiori orciiriarysandtloultside the' State.
8. The main contention ('of S' Counsel for the petitioners is that the ;irnpugned*:jGoV'erI1rr1ent Order is in violation of t-l"1"el" _ the petitioners under Article iSl3{i}{g] ofVtlie"'(:ponstitutiori"of India. It is their contention that in orderto cater to jneeds of the developmental activities __in }3ari.galo~re, the=..impugned notification is issued banning V_transpo1"tation.'lief ordinary sand from the various districts inclutdingvv'blo_r.der;.districts which are situated several hundred V kilomdeitres-.V from the Bangalore City. Therefore, restriction is" ivholly arbitrary and illegal. it is further contended Government Order violates Article 301 of the .l'_4lCoristitution of india as it imposes a ban on the transportation S S' "of sand from Karnataka State to any other State in the country and that the State Government does not have any such power 35 or authority to impose such a ban. It is also contended that neither the provisions of the Mines and Minerals (Developnient and Regulation} Act, 1957 {hereinafter referred for short) nor the provisions of the Concession Rules, 1994 (hereinafter for short}, confer any power on ..§tateA'Govern'1nen_t''towirhposea. ' ban on the transportationor sa1eg_oflr'ninerals outsideggthe State.
9. In support of the Counsel for the petitionershave judgments:
{1} ~-- AIR 1967
(ii) 0'-JDH LTD. vs. UNION OF INDIA AND 'ofrHF:,Rs ¢---- A1R_19_?70 so 1070;
, Q11)' 'rHE'"x'N.1:)IA CEMENT LTD. vs. STATE or TAMIL " 2, 1V';A_1)U W AILR"'1990 sc 35.
Advocate General has emphasized the acute shortage of sand faced by the State and the need to _ 'conserve. same. He has further emphasized the fact that the question over which the quarrying permit is granted ____"tbelo;ngs to the State. He also draws the attention of the Court to '*Conditi0n No.18 imposed in the quarrying permit granted in favour of the petitioners in W.P.Nos.6673l/2009 8:
4» "lam 66809/ 2009, wherein it is stated that the permit is issued to quarry ordinary sand to transport the same for local use. inviting the attention of the Court to Rule 31(2) of the contends that the quarrying lease may contaiir. conditions as the Competent Autho1'it_y...m_ay c_'eem"
the interest of maintaining the locally enVironr11ent_," ha'o"1tat?.iof :7 surrounding area leased and inthe interest of 'c_ons'cryat.ion oi, minerals. He has placed strong reliance. on the juldgnient of the Apex Court in the case OTHERS VS.
OM PRAKASI-I MEHTA ANn.e*£H3«:Rs_~».Aiii so 678 (PARA 9); and STATE ETC. -- Am 1981 SC 711 his contention that the State has got such a 'power to 'imposes. such restriction and there is no _ vestedy_§ri"ght in the_Hpetitioners to claim grant or renewai. He thattiie executive order is traceable to Rule 31 and theretoré urged by the petitioners that it offends _Articl"e--.301'is-riot tenable in law. He also draws the attention of " Courtto Rule 7 of the Rules to contend that the competent has got power to specify additional conditions apart " eneral conditions as enumerated in Rule 6 of the Rules. 4A_4_3'iLL4_A
11. In the light of the respective legal contentions urged. the points that arise for consideration are,
(i) Whether the Government Order issuediby ithe Government is violative __of. the under Article 19(1}(g) er:r1d/orA.fivoj7to.the"*- protttsions contained under Article 3O17&i3O4 of the 'pConstEtution--..p of India'?
{ii} Whether the Vnorder otherwise sustainable in 'late? '' V
12. As can be seen from».tlaeV'-GoverhIIlet1"'£' Order and the reasons mentiorled gm imposing the bar1',""the main concern of the State t"hepV'aCU.tle"shortage of ordinary sand for the developmentalact.ivities..:throi1gh0ut the State apart from Bangalore City, vvwhere'._Vlarge number of constructions are V.;;nder"ta:ken'. This Ac'on.cern also stems out of the ban imposed by States Kerala, Tamil Nadu and Andhra Pradesh fofA'.V-vl.3m'}EiSp0rtation of sand outside their respective 'States: Thereyfore. if the State Government has kept in mind as it V' aprime concern, the requirement of the developmental activities
--..li.nlAA'fi;€'AAState and the acute shortage of ordinary Sand to miyement such developmental projects, it cannot be said that the Government has acted in an arbitrary or unreasonable manner by taking into consideration extraneous factors.
13. As can be seen from the conditions imposed in pie;-fm.it granted in favour of the petitioners in W.P.Nos.6.63}3 66809/2009, Clause 18 makes it >AA»amply."'clvear»ylthatp temporary permit is issued to qua1'ry:'ordi_nazr:y to lti'an_spo:A'lt the same for local use andsnot forntranspot'ting<_V_Vto countries. The term 'local use' istapable of iiiterpreting that the extracted sand has ueled1inll.th_e~.,ysarne locality. At any rate, considering the elasticity of 'local use' understayndingitsvscope as"~use throughout the State' cannot be understood as imperrnjissible'.'~«. It is also not in dispute that the petitioners haye obtained. temporary permits on such conditions and p:;:::iod.A.of has since expired. Admittedly, there is no "rest§icti._on Tor"-'these petitioners to transport the ordinary sand ,_eXtracted.V_ throughout the State of Karnataka. Since it is . lbontendedl that imposition of such condition that too by Way of a 'Goverhment Order is outside the authority of the State ..._lll'Goyyernment and is violative of the provisions of the Constitution V _ land is opposed to the provisions contained in the Act and Rules, %/ W1:-ah it is necessary to examine the provisions of the Act and the Rules for this limited purpose.
14. Section 15 of the Act confers powers Governments to make rules in respect of minor j'rIflineralls V' including as regards the terms on ';«Vl'llClfi.',« and ifondiitions subject to which and the authority mining leases or other mineral concessions rn'ayV'v_be'-granted or renewed [See Section 15{m}_(d)}.
15. In exercise of the powerslle-onfverred.funder Section 15 of the Act, the Rulesare of Kamataka.
Rule 6 the for imposition of certain general conditions llperéainilrlig to quarrying lease and license. Rule filclothes theylicompetent authority to specify additional conditions i1'n,the quarrying lease or license as the competent necessary. Rule 31(2) which deals with the V V' _condit'i~ons.V:oi"qluarrying lease states that a quarrying lease deed uycontain such other conditions as the competent authority _l e.ma,_y"cle'em necessary in the interest of maintaining the local .4lg"e-nvironment, habitat of surrounding area leased and in the it " " interest of conservation of minerals. Therefore, it is clear from the conjoint reading of Rule 7 and Rule 31(2) that necessary in _15_ the permit holders to use the sand excavated Within the«.State and not to divert its use outside the State.
17. Learned Advocate General has rightiy placed' the judgment of the Apex Court in the 'ca's-eof V AND OTHERS VS. OM PRAKASI-I i\1EHT}a..gA1§fp"oTIliEi§s I,-5 " 1 SC 678 as regards the following lob:s'erVatio'ns: V " ....... ..the Government li1ge*'any.ot'oer owner.of..p3roperty is entitled to choo'se:"wit1'i_ deal and What sort of a contract it viriil ir.-itoh,' bjiztfneing a public authorityitsv..acts:_' re';g1ilated by certain person any right in any Vlanld 'bel;3ngirfg"toll'Goverriinentflor in any mines in any land 'beloli1gi';1gi --£:{oVerIiment except under and in accordanceiqiriilli and the Rules or any right _ except» thosey 'erea_ted~'"or conferred by the Act. There is no question of any fundamental right in any person to p that hemshould be granted any lease or any 3 _ license or mining lease in any land ' beionginglto the Government."
In instant case, land and the mineral belongs to the Gmifelrnment. There is no vested right in the petitioners apart ___""i'ron;1 What flows from the permit and the provisions of the Rules pp ~ Act. Therefore, the argument advanced based on the Wlfim alleged violation of the fundamental right under Articlec--i9p[i](g] is totally untenable.
19. In so far as the contention urged by the for the petitioners on the basis of freedobrn«QfFtra;delV:throughout the territory of India under Article which can only be imposed by 1aW'»aVst--iprovidedV 304; by the legislature of a State, as"'rig'ljt¥y""urged& by the learned Advocate General Sri judgment in the case of STATE 0;? s'roNE ETC. M AIR 1981 SC 71}, ;1s iT;l1e.ApeX Court, in the said case of Rule 8C of the Tamil Nadu Minder!' Rules, 1959, which provided for complete prohibitioiixolf"Quarrying black granite by private ' 'agencies a_and~-- pa contention was also advanced stating the Odrdieripdated 02.12.1977 involved a major change of policylvvhichhvvasiz a legislative function and therefore beyond the bl':.._'con1petence:. of a subordinate legislating body, the Apex Court repelling the said contention held that the Rule was valid. It is 'observed in para 9 of the said judgment as under:
" .......... ..Whenever there is a switch over from 'private sector' to 'public sector' it does not necessarily follow that W a change of policy requiring express legislative sanction is _17_ involved. It depends on the subject and the statute.» For example, if a decision is taken to impose a general_ and complete ban on private mining of all mi._nfor"m'in_e'r'a,ls, _ such a ban may involve the reversal of a_ major am so it may require legislative san'ction.. But if _aVd_ecisi:onl'is 9 taken to ban private mining of single mi~nor_mineifalilior the purpose of conserving»cit,___suchAa 'ban, :1.f''it'uis'_Vother\vise ' ; within the bounds of authority, giveifi "to the Government by the ,Statute,***ca.r1not~ be said-to involve any change of policy. llheiiilpolicy tliev'-filct.,,remains the same and it is, as we said_,_:the the prudent and discriniinating iexploitationvlof mirierals, with a View to 99 secure b'ene_fi't.to thefvcommunity. .......... ..
20. In ;observed that, in the case of a scarce 'p.e.rm:itV._.e>.<p1oitation by the State or its agency and Vito. ,prohibitleicpioitation by private agencies is the «conservation and prudent exploitation.
"<1ry:o"u «eoiiserve for the future, you must prohibit in the present, the Apex Court has repelled the contention [that Rules therein contravened Articles 301 8:
'of,gthe Constitution. The Apex Court has categorically in para 11 as under:
" ....... ..The Mines 8: Minerals {Regulation & Development) Act is without doubt a regulatory measure. Parliament l W having enacted it for the express purpose of "the _18_s regulation of mines and the development of minerals".
The Act and the Rules properly made there1in'clie1=.g"are, therefore, outside the purview of AFtiCl€..§Vf3i.O1'>.~.V_'v:-
otherwise, Article 302 which enables Parliafnentgfby ].aw._g to impose such restrictions grid" the free_clorn._-of 'trade, commerce or intercourse between State" aridealfiotlier or within any part of the -.territory°of rnl§1y'lbe:l'e. required in the public interest.' also furnislies angganswer to the claim based onthe a.llege_d lcontraveiitionlj of Article
301. ....... ' " ' '
21. In the instant caseifas' to herein above, the Rules franield _Gc>vetT1merit under Rules 7 and 31(2) of th_e__Ru1es p;:ovid--e;'._ior'impVosition of conditions by the competent autlloiity-.....the:.l'interest of maintaining the local environment"and_foi _cons'ervation of minerals. By virtue of the V.GoveIn§ment View of the acute shortage of the ordinary .F,sé;nc: theA..St£;lteV and in the light of the requirement of directing towards usage for completion of the ongoing V .development 'projects, the State Government has issued such a it " ' A "'no'i;£fic.atioii.
petitioners in this writ petition have accepted the '::*c.onditions of permit and are therefore liable to follow such A 9' " " tow directions issued by the Government. The power M19."
exercised by the Government having been guided by genuine considerations of public interest cannot be interfered:V'iviih.V"'by this Court by taking a pedantic approach being the contentions of the petitioners isiieii. as; omission 'of': the authorities to insist for adherence for ban on"t.ran.sportat.ion._ outside the State in the beginni1l'l1g.,»p:'\:~
23. The judgments relied Counsel for the petitioners in the case of VS. STATE or TAMIL NADI; {am his 8: 32) has no application to; of "ease. :1'/,p:pSi:(V_r;;i1arly, the judgment in the - AIR 1967 SC 1189, zhwhichl validity of the Rules regarding regulation of trar_isit..c;--f timber, firewood. charcoal and bamboos 'b.1211. sp'e.ci'fied area franriedllunder the Mysore Forest Act vis-a--vis Articles 301 & 304 of the Constitution of India,__'whasv_ noliellpplication to the present case. Likewise, the . judgmentin the case of OUDH SUGAR MILLS LTD. VS. UNION OF OTHERS - AIR 1970 so 1070 relied upon by the Jlllearined Counsel for the petitioners is also of no help to the "proposition canvassed by them. Accordingly, both the points swered against the petitioners.
#20-
24. For the detailed discussion made above and the reasqfi-s_'"._V_ stated herein above, we do not find any merit in the ehfsldlehgei .;. made to the Government Order. Hence, the writ §3e'titi()fr1s"'a:re.A dismissed.
KK