Document Fragment View

Matching Fragments

10. The Counsel for the petitioners would elaborate on the grounds urged and would submit that the validity of the Circular dated 24.2.1999 having been unsuccessfully challenged and having been affirmed by a Full Bench of this Court the directions contained in Annexures-J and K prohibiting the grant or renewal of quarrying lease in gomal lands, is liable to be set aside. The preamble to the above impugned Circulars indicates that the basis for the same are the judgment of the learned Single Judge and the Division Bench referred to hereinabove in Writ Petition No. 21221/2003 and Writ Appeal No. 1353/2006, respectively. This is apparently erroneous, as the said judgments cannot form the basis for prohibiting grant or renewal of quarrying leases. As the question for consideration before the Court in those cases, was only concerning the regularisation of unauthorised cultivation of gomal lands and the said decisions had no occasion to consider the aspect of quarrying lease granted in gomal lands. Hence, the Circulars seeking to extend the prohibition in respect of quarrying leases, is not in accordance with the said decision of this Court nor did the said decision contemplate any such prohibition. The basis was therefore an incorrect assumption in proceeding to prohibit the granting or renewal of quarrying leases. In any event the Circulars cannot also be supported on the ground of any independent decision of the State Government in reconsidering its earlier policy decision to grant quarrying leases over gomal lands.

21. It if useful here to extract the contents of the Circular dated 24.2.1999 which reads as follow:

1. As areas of 'Gomal Lands, wherein Mining Leases were granted previously, consul of huge and hard rocks and as there is no chance of growing grass or any other type of plants, because of mining operations being carried out for many years, and where the land no longer bears the features of Gomal land, if such areas are continued to be reserved as Gomal, no purpose will be served. On the other hand, it would attract persons who indulge in illegal mining operations.
2. Areas though identified as Gomal lands but as these lands are covered by rocks and cannot he used as Gomal lends, if these lands are not leased for mining, it would encourage illegal mining.

Taking, into consideration these aspects and other relevant factors and in its background and basis, the lands which are classified as Gomal lands, but covered with huge and hard rocks may be considered for being granted for quarrying (mining). In this regard, the following guidelines have been framed;

(c) The Commissioner of the concerned subdivision and Senior Geologist/Geologist of the concerned District shall be authorised Authorities for the purpose of joint spot inspection.

(d) While taking action as per (a) and (b) other relevant Rules shall be followed.

(e) If forest land, in any given case extends into Gomal land, no mining lease shall be granted in such areas

22. Insofar as the decision of the learned Single Judge in Writ Petition No. 21221/2005 and the judgment of the Division Bench in Writ Appeal No. 1353/2006 and connected cases are concerned, it is clear that the subject therein related to claims for regularisation of unauthorised possession and cultivation of gomal lands. The learned Single Judge took the view that a writ potion would not He for issuing directions to the Government to compel the authorities to act contrary to the statutory previsions namely, Section 67, 69 and 71 of the KLR Act and Rules 97 and 108(1) of the KLR Rules. On the other hand, the learned Single Judge directed the authorities to ensure that all lands which are classified as gomal lands are retained as such and that they are preserved for the common utility of the community of the Village. The Single Judge did not consider the aspect of other uses, to which such land could be diverted nor was there any reference to the Circular dated 24.2.1999 which continued to he acted upon by the authorities. The order of the learned Single Judge having been challenged before the Division Bench, the Division Bench took the view that Sections 94-A, 94-B and 94-C having been incorporated into the Act, apart from Rule 97(4) and 108-B to EE of the KLR Rules having been inserted, the said provisions would have to be given effect to in order to achieve the object and intendment of the said Act and Rules and that if the order of the learned Single Judge is to be given effect to, the above said provisions would remain only on the statute book, without capable of being implemented, rendering them redundant and nugatory and therefore, allowed the writ appeals end directed the concerned to identify all gomal and other reserved lands and consider whether their extent were to be retained or reduced "or totally diverted to other purposes" based upon the cattle population and the requirement in respect of which, the reservation may still exist in the concerned areas. Here again, the Division Bench was not concerned with the permitted user of certain gomal lands, as were diverted in accordance with the Circular of 24.2.1999, on the other hand it would seem that the Division Bench did bear in mind such diversion in appropriate cases. It follows that only such of those gomal lands, which can no longer be classified as gomal lands, on account of the same being largely covered with hard-rock and not fit as gomal land and on such identification of lands, that the authorities could take steps to consider the granting of quarrying licences in respect of the said lands. Hub did not pre-suppose that the express provisions of the KLR Act, which confers jurisdiction on the Deputy Commissioner, insofar as the power of tine Deputy Commissioner to set apart lands fox free pasturage for any given village. Die intention of the Government in issuing the Notification of 24.2.1999 and the manner in which it ought to be implemented, having been indicated in the Notification itself, as held by this Court in K.V. Vishwanath's case, supra, the present impugned circulars seeking to extend the scope of the orders of this Court, as it were, while the Circular doted 24.2.1999 continues to remain in force, is not permissible Further, the Full bench of this Court having taken the view, as referred to hereinabove, that the Circular dated 24.2.1999 was a decision of the Cabinet and that the present impugned Circulars cannot override the same, as they are not in accordance with the Karnataka Government (Transaction of Business) Rules, 1977 is yet another consideration, which would render the impugned Circulars as being inconsistent and contrary to the legal position.