Karnataka High Court
Mahadev Yashavanth Nalawadi vs The State Of Karnataka on 8 January, 2020
Bench: Chief Justice, Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION No.53021 OF 2018 (GM-MMS)
BETWEEN:
MAHADEV YASHAVANTH NALAWADI
PROP. OF M/s NEW ANAND STONE CRUSHER
AGED ABOUT 64 YEARS
MALLAMMA NAGARA, MALAPUR
MUDHOL - 587 303
BAGALKOT DISTRICT. ...PETITIONER
(BY SRI R. G. KOLLE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE SECRETARY TO GOVERNMENT
DEPARTMENT OF COMMERCE & INDUSTRIES
VIKASA SOUDHA
BENGALURU - 560 001.
3. THE APPELLATE AUTHORITY
AND REGIONAL COMMISSIONER
BELGAVI DIVISION
BELGAVI - 577 450.
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4. THE CHAIRMAN LICENSING AUTHORITY
AND DEPUTY COMMISSIONER
DISTRICT STONE
CRUSHERS LICENSING AND
REGULATION AUTHORITY
BAGALKOT - 587 103.
5. THE MEMBER SECRETARY
AND DEPUTY DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
No.63/A, BRINDAVAN SECTOR
NAVANAGAR
BAGALKOT - 587 102.
6. THE MEMBER SECRETARY
KARNATAKA STATE POLLUTION
CONTROL BOARD
49 CHURCH STREET
BENGALURU - 560 001.
7. THE EXECUTIVE ENGINEER
(ELECTRICAL)
HUBLI ELECTRICITY SUPPLY COMPANY LTD
O/O EXECUTIVE ENGINEER
MUDHOL SUB-DN
MUDHOL - 587 313. ...RESPONDENTS
(BY SRI V.G. BHANUPRAKASH, AGA FOR R1 TO R5
SRI GURURAJ JUSHI, ADVOCATE FOR R6
SRI S. SRIRANGA, S.G. SRI PRASHANTH MURTHY
ADVOCATES FOR R7)
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THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO QUASH OR SET ASIDE REFUSAL LETTER
DATED:20.06.2018 ISSUED BY R-4 DEPUTY
COMMISSIONER AND ORDER DATED: 11.10.2018
PASSED BY THE R-3 REGIONAL COMMISSIONER
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PRODUCED AT ANNEXURE-C & B RESPECTIVELY;
AND/OR AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE MADE THE
FOLLOWING:
ORDER
Heard the learned counsel appearing for the petitioner, the learned Additional Government Advocate appearing for the first to fifth respondents and also the learned counsel appearing for the sixth respondent.
2. With a view to appreciate the submissions made across the Bar, a reference to few factual details will be necessary.
3. The case of the petitioner is that on an application made by the petitioner under the provisions of the Karnataka Regulation of Stone Crushers Act, 2011 (for short, 'the said Act of 2011'), safer zone notification was issued on 22nd October 2012 in accordance with Section 6 of the said Act of 2011. Thereafter, based on the safer zone notification, a licence under Section 3 of the said Act of 2011 was granted to the petitioner to operate a stone crusher unit. On expiry of the licence granted under the -4- said Act of 2011, an application was made by the petitioner for renewal of the said licence. The said application was filed on 22nd December 2017. By a letter of refusal in Form-D dated 21st June 2018, the Licensing Authority rejected the application made by the petitioner. An appeal was preferred by the petitioner against the said order under Section 15 of the said Act of 2011. By the order dated 11th October 2018, the said appeal was dismissed by the Regional Commissioner.
4. Before referring to the submissions made across the Bar, we must note here that though the learned counsel appearing for the petitioner accepted that the judgment and order dated 8th November 2019 passed by this Court in W.P.No.53020 of 2018 and another connected case will apply to the facts of the case, he submits that in view of the various decisions of the Apex Court, a different view has to be taken.
5. Therefore, before going into the submissions made across the bar, we must note what was held in the said judgment and order. In the present case, the refusal for renewal of the said licence is on the ground that when -5- the joint inspection was carried out on 7th March 2017 on the basis of the application for renewal of licence, it was revealed that there was a road from Mudhol to Navalgi at a distance of 55 meters from the spot of the crushers unit and therefore, a safer zone cannot be declared in respect of the said area considering clause (b) of sub-section (7) of Section 6 of the said Act of 2011.
6. The Division Bench in the aforesaid decision dealt with a similar case where the stone crusher unit which was established under the earlier licence was found to be located within the distance of one hundred meters of a road while considering the application for renewal of the licence. Paragraphs 5 to 8 of the said decision are relevant which read thus:
"5. Term of licence - A licence shall be valid for a period of five years and may be renewed for a further period of five years subject to fulfillment of the conditions laid down under this Act of the rules made thereunder.
Explanation. - Where a licence has been granted in the middle of a year, for the purpose of computing the term of licence, the remaining part of the year shall be deemed to be a year.
6. Conditions for declaring Safer Zone - The declaration of safer zone for zone crushers -6- under this Act, shall be subject to the following conditions, namely -
(1) The safe zone shall not be located within-
(a) Two hundred meter from the limits of
National Highways or State
Highways;
(b) One hundred meter from the limits of
major district roads or other roads;
a. Five hundred meter from revenue
village, temples, schools;
(c) The boundary of Municipal
Corporations, City Municipal Corporation, Town Municipal Council.
(2) Each stone Crusher unit shall be located in a minimum area of one acre of land.
(3) The Licensing Authority shall, within a period of three months from the date of receiving application, verify the above conditions through joint inspection from the concerned Officers of Mines and Geology, Revenue, Forest Department and Environmental Officer, Karnataka State Pollution Control Board and declare safer zone within their jurisdiction by notification, specifying the area and its limits:
Provided that the Licensing Authority shall declare the safer zone for existing stone crusher within one month in any case not later than three months from the date of receipt of application.
6-A Conditions for grant of license - (1) No licence shall be issued for stone crushers outside the safe zone (Underline supplied) -7-
7. The application for renewal was required to be decided as per the said Act of 2011 as amended by the amending Act of 2013 as the application was made after the amendment. On plain reading of the above provisions it is clear that Section 4 is applicable to both the application for grant of licence and for application renewal of licence to carry on stone crushing business. Sub-section (2) of Section 4 mandates that if an application is made for grant or renewal of licence, the Licensing Authority is required to conduct joint inspection of the location and thereafter, safe zone is required to be declared, as contemplated under sub-section (3) of Section 6 of the said Act. Even if safer zone is already declared while granting the licence, in view of express provision of sub-section (2) of Section 4, on receiving application for renewal of licence, a fresh exercise of joint survey and declaration of safer zone is required to be undertaken. If the area proposed in the application for grant or renewal of licence is not declared as safer zone, the Licensing Authority is bound to reject the application. Sub-Section (1) of Section 6 provides that act of declaration of safari zone, is subject to conditions incorporated/stipulated therein. Further, sub- section (1) of Section 6 lays down that safer zone shall not be located within 100 meters from the limits of major district roads or other roads. In view of the provisions of sub-section (2) of Section 4 read with sub-section (3) of Section 6 of the said Act of 2011, the exercise of carrying out joint inspection and declaration of safer zone is require to be carried out, even when an application for renewal is made. Merely because while granting original licence, safer zone is declared, the requirement of declaring a safer zone is not dispensed with when application for renewal is considered. The same exercise which is to be carried out for a declaration of safer zone while granting original licence has to be carried out while dealing with the application for renewal as well.
8.In both these writ petition, the factual findings recorded during joint inspection conducted on 7th March 2017 are that safer zone is within the distance of one hundred meters from Mudhol to -8- Navalgi road, which is not disputed in the petition. Even assuming that the said road was constructed after the licence was originally granted or the said road was widened after the licence was originally granted, a fresh exercise of declaring the limits of safer zone ins required to be carried out by the authorities even when the application for renewal is made. In the present case, when the said fresh exercise was carried out, it was found that the distance between the area proposed and the road was found to be less than one hundred meters, which means, in view of clause (b) of sub-section (1) of Section- 6 of the said Act of 2011, safer zone could not have been declared in respect of the area proposed by the petition. Therefore, there is no reason for this Court to interfere with the action of the competent authority of rejecting the application of the petitioners for renewal of licence, which was affirmed by the Appellate Authority. Notwithstanding the fact of said rejection, the petitioner can always make a fresh application for an alternate location, as provided in sub-section (2) of Section 4 of the said Act of 2011. However, under the facts and circumstances of the case, no relief can be granted in these two writ petitions. Accordingly, we pass the following order.
Both the writ petitions are rejected, with no order as to the costs."
(underline supplied)
7. The gist of the findings recorded by the Division Bench of this Court in the said decision can be summarized as under:
The provision of Section 4 of the said Act of 2011 is applicable to both the application for grant of licence and the application for renewal of licence. In case of both the -9- applications, by virtue of sub-section (2) of Section 4, the Licencing Authority is required to conduct a joint inspection of the location and thereafter, the safer zone is required to be declared as contemplated under sub-section (3) of Section 6 of the said Act of 2011. Even if the safer zone is already declared as per Section 6 while granting the original licence, in view of the provision of sub-section (2) of Section 4, on receiving an application for renewal of licence, a fresh exercise of joint survey and declaration of safer zone is required to be undertaken. Merely because while granting the original licence, safer zone is declared, the requirement of declaring the safer zone is not dispensed with when the application for renewal is considered.
8. Now, we refer to the submissions made across the Bar in this case. Firstly, the learned counsel for the petitioner pointed out that sub-section (2) of Section 4 in the present form was brought on the statute book on 26th December 2013. He pointed out that even Section 6 and Section 6(A) in the present form were brought on the statute book with effect from 26th December 2013. He submitted that the original licence was granted on 25th February 2013. By virtue of the amendment made on 26th
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December 2013, the licence expired on 31st March 2018. He further submitted that as the original licence was granted prior to 26th December 2013, the application for refusal must be governed by the provisions of the said Act of 2011 as prevailing on 25th December 2013.
9. His second submission is that when the safer zone was declared on 22nd October 2012 by a notification in the Official Gazette, it operates in perpetuity and therefore, on the basis of the said declaration of 2012, the application for renewal has to be considered. He submitted that an indefensible right is created in favour of the petitioner on the basis of the safer zone notification dated 22nd October 2012, and hence, even the application for renewal though made after 26th December 2013 will be governed by the provisions of the said Act as applicable before 26th December 2013. Today, the learned counsel has placed on record the provisions of the said Act as prevailing prior to 26th December 2013. He urged that the amended law is a Draconian law. He further submitted that the vested right created by the earlier safer zone notification cannot be defeated. He also submitted that applying the amendment made on 26th December 2013 to the application for renewal
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will amount to retrospectively applying the amended provisions of the said Act of 2011 which cannot be done. He relied upon what is held by the Apex Court in paragraph 28 of the decision of the Apex Court in the case of Commissioner of Income Tax (Central)1, New Delhi vs Vatika Township Private Limited1 and submitted that retrospective operation of law is impermissible. He also submitted that doctrine of promissory estoppel can be invoked by the petitioner by virtue of the safer zone notification of the year of 2012. In support of this submission, he relied upon another decision of the Apex Court in the case of Gujarat State Financial Corporation vs. M/s Lotus Hotels Private Limited2. He would submit that the aforesaid decisions of the Apex Court are not noticed by this Court while delivering the judgment and order dated 8th November 2019 and therefore, a different view will have to be taken. In short, the submission is that the finding rendered in the judgment and order dated 8th November 2019 cannot be read as a binding precedent in view of the decisions of the Apex Court relied on by the learned counsel appearing for the petitioner. 1 (2015) 1 SCC 1 2 (1983) 3 SCC 379
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10. We have already quoted the relevant provisions. As held in the order dated 8th November 2019 and as it is apparent from sub-section (2) of Section 4 of the said Act of 2011, there is no difference between an application for grant of licence and an application for renewal of licence. The procedure which is required to be followed for grant of licence must be followed for dealing with the application for renewal of licence. On a plain reading of sub-section (2) of Section 4 of the said Act of 2011, after the application for renewal of licence is made, the exercise of declaring the safer zone has to be made afresh. There are obvious reasons for that. Section 6-A provides that no licence shall be issued for stone crushers outside the safer zone. Sub-section (1) of Section 6 provides that the safer zone shall not be located within two hundred meters from the limits of National Highways or State Highways; one hundred meters from the limits of major district roads or other roads and five hundred meters from revenue village, temples, schools, the boundary of Municipal Corporations, City Municipal Corporation and Town Municipal Council. The object is very obvious. For example if a stone crushing unit is located within five
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hundred meters from revenue village, temples, schools, it will pose a danger to the villager, the visitors to the temple and school children. At the time of grant of original licence when the exercise of determining the safer zone is undertaken, none of the contingencies provided in Clauses
(a) to (d) of sub-section (1) of Section 6 of the said Act of 2011 may exist. But during the span of five years of licence, there will be several cases where a National Highway or a State Highway comes up within the location of safer zone within two hundred meters of stone crusher unit or a school of temple may come up within the distance five hundred meters of the location of the stone crusher unit. Therefore, a fresh exercise of declaration of safer zone must be undertaken. The safer zone declared while granting licence is valid only for the duration of the licence. Apart from the fact that it is the mandatory requirement of sub- section (2) of Section 4 to get declaration of safer zone before the renewal of license, if the submission made by the learned counsel appearing for the petitioner is accepted, it will completely defeat the object of incorporating Section 6 and Section 6-A on the statute book.
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11. Another submission is that if the said Act of 2011 which is amended with effect from 26th December 2013 is applied to the application for renewal, it will amount to retrospectively operating the said law, though there is no indication that the amended provision has a retrospective effect. The sum and substance of the contention is that once the licence is granted for a period of five years, the renewal is automatic as a matter of right. As held earlier, the application for renewal of licence is on par with a fresh application for grant of licence. Such an application has to be dealt with according to the law prevailing on the date of making the application for renewal. Therefore, it is impossible to accept the submission that the Act which is amended with effect from 26th December 2013 is being retrospectively applied to the application for renewal and therefore, the said argument deserves to be rejected and the law laid down by the Apex Court in the case of Vatika Township Private Limited (supra) is not applicable.
12. We fail to understand how the petitioner can call the amended law as a Draconian law because the law requires the application for renewal to be treated on par
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with a fresh application for grant of licence. By granting declaration of a safer zone while considering earlier application for grant of licensce, there is no indefeasible right created in favour of the licensee. Therefore, the argument based on promissory estoppel deserves to be rejected.
13. The learned counsel appearing for the petitioner again submitted that the provision introduced by way of amendment with effect from 26th December 2013 in the said the Act of 2011 is a Draconian law. Apart from the fact that in the petition, there is no challenge to the constitutional validity of the said provision, it is impossible to accept that the provision regarding safer zone introduced in the statute book to protect the interests of the public can be called as a Draconian provision.
14. Hence, we reject the arguments made by the learned counsel for the petitioner for the reasons, which are recorded above.
15. This petition will be governed by the aforesaid order dated 8th November 2019. Therefore, we find no fault in the order in refusing the prayer for grant of renewal of
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license. Hence, no interference is called for in this petition under Article 226 of the Constitution of india. Accordingly, the petition is rejected.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE HR/BKM