Karnataka High Court

Sri N Raghavendra Raju vs The Chief Secretary on 11 February, 2021

Author: Chief Justice Magadum

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 11TH DAY OF FEBRUARY, 2021

                         PRESENT

   THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE

                          AND

THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM

       WRIT PETITION NO.857 OF 2021(GM-MM-S)

BETWEEN:
1 . SRI. N. RAGHAVENDRA RAJU
S/O B. G. NANJUNDA SWAMY
AGED ABOUT 42 YEARS
RESIDING AT NO.676, 13TH CROSS
1ST PHASE, 1ST STAGE
CHANDRA LAYOUT
GANGONDAHALLI
BENGALURU - 560 072

2 . SRI. K. M. CHOWDAPPA
S/O K.M. MUNIVEERAPPA
AGED ABOUT 34 YEARS
RESIDING AT NO.12
KUPPAHALLI VILLAGE
NANDI HOBLI
CHIKKABALLAPURA TALUK
CHIKKABALLAPURA DISTRICT - 562 101

3 . SRI. SHIVANNA .K .V
S/O VENKATARAYAPPA
AGED ABOUT 42 YEARS
RESIDING AT KUPPAHALLI VILLAGE
NANDI HOBLI
CHIKKABALLAPURA TALUK
CHIKKABALLAPURA DISTRICT - 562 101

4 . SRI. G. B. NAGAPPA
S/O BIDARAPPA
AGED ABOUT 39 YEARS
RESIDING AT NO.13-3
GOLLAHALLI VILLAGE
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HULADENAHALLI POST
MASTI HOBLI, MALUR TALUK
KOLAR DISTRICT - 563 130

5 . SRI. B. V. GANGADHAR
S/O VENKATASWAMY .C
AGED ABOUT 38 YEARS
RESIDING AT NO.5
PRASHANTHNAGARA
CHIKKABALALPURA TALUK
CHIKKABALLAPURA DISTRICT - 562 101

6 . SRI. N. MANJUNATHA
S/O NARAYANAPPA
AGED ABOUT 42 YEARS
RESIDING AT NO.31
MARAPPANAHALLI VILLAGE
KETHENAHALLI POST
CHIKKABALAPURA TALUK
CHIKKABALLAPURA DISTRICT - 562 101

7 . SRI. RAVIKUMAR .N
S/O NAGARAJAPPA
AGED ABOUT 31 YEARS
RESIDING AT AVALAGURKI VILLAGE AND POST
CHIKKABALLAPURA TALUK
CHIKKABALLAPURA DISTRICT - 562 101

8 . SRI. M. V. VIJAY KUMAR
S/O VENKATESHAPPA
AGED ABOUT 34 YEARS
RESIDING AT NO.20
MOGALAKUPPE VILLAGE
YALAGERE POST
CHIKKABALLAPURA TALUK
CHIKKABALLAPURA DISTRICT - 562 101

9 . SRI. NAGABHUSHANAIAH
S/O LATE THIMAIAH
AGEDA ABOUT 63 YEARS
RESIDING AT NO.793/F
WARD NO.31, BEHIND ADATS OFFICE
MANCHANABELE ROAD
CHIKKBALLAPURA TALUK
CHIKKABALLAPURA DISTRICT - 562 101
                                       ... PETITIONERS
(BY SHRI. R. SHASHI KUMAR, ADVOCATE)
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AND:
1 . THE CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
BENGALURU - 560 001

2 . THE SECRETARY
(MSME AND MINES)
COMMERCE AND INDUSTRIES DEPARTMENT
VIKASA SOUDHA
BENGALURU - 560 001

3 . THE DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
NO.49, KHANIJA BHAVAN
RACE COURSE ROAD
BENGALURU - 560 009

4 . THE SENIOR GEOLOGIST
DEPARTMENT OF MINES AND GEOLOGY
MINERALS DIVISON
CHIKKABALLAPURA - 562 101

5 . THE DEPUTY COMMISSIONER
CHIKKABALLAPURA
CHIKKABALLAPURA - 562 105

6 . THE ASSISTANT COMMISSIONER
CHIKKABALLAPURA SUB-DIVISION
CHIKKABALLAPURA - 562 105

7 . THE TAHASILDAR
CHIKKABALLAPURA TALUK
CHIKKABALLAPURA - 562 105

8 . THE TAHASILDAR
GOWRIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT
                                       ... RESPONDENTS
(BY SHRI. I. THARANATH POOJARY, AGA)
                            ---
     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ENDORSEMENT DATED 20.06.2017 PRODUCED
AS ANNEXURE-K AND L, DATED 21.10.2017 PRODUCED AS
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ANNEXURE-M, DATED 23.01.2018 PRODUCED AS ANNEXURE-
N, P, Q, R, S, AND T RESPECTIVELY AND ETC.

     THIS PETITION HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY,
SACHIN SHANKAR MAGADUM J., PRONOUNCED THE
FOLLOWING:

                            ORDER

The captioned writ petition is filed by the petitioners

seeking for issuance of a writ of certiorari to quash the

impugned endorsements issued by the fourth respondent as

per Annexures-K to T respectively. The petitioners have also

sought for issuance of a writ of mandamus directing the

respondents to secure No Objection Certificates from the

concerned authorities and execute the lease deeds subject to

other conditions as may be specified in sub-rule (5) of Rule 8 of

The Karnataka Minor Mineral Concession Rules, 1994(for short

'KMMC Rules") as substituted by The Karnataka Minor Mineral

Concession (Amendment) Rules, 2016.

2. The brief facts leading to the case are as under:

The petitioners in the top noted writ petition submitted

their respective applications for grant of quarrying leases in

respect of ordinary building stone, which is classified as the

non-specified minor minerals on the respective dates

mentioned against their names in the table at paragraph 3 of

the petition. The case of the petitioners is that the applications

tendered by the petitioners are prior to amendment of KMMC

Rules which came into force on 12.08.2016. The grievance of

the petitioners before this Court is that the fourth respondent

has not made any efforts to obtain No Objection Certificates

and reports from the jurisdictional Tahsildar, Assistant

Commissioner, Deputy Commissioner, Deputy Conservator of

Forest and Geologist. It is the specific case of the petitioners

that the fourth respondent has failed to implement and invoke

Rule 8(5) and (6) of KMMC Rules. The fourth respondent has

issued the impugned endorsements treating the applications of

the petitioners as ineligible under Rule 8-B(1) of KMMC Rules.

The contention of the petitioners is that since the applications

submitted by the petitioners is much prior to 12.08.2016, it was

incumbent on the part of the fourth respondent to address

letters to the competent authorities and seek No Objection

Certificates, reports, views and opinions within a period of 90

days in terms of Rule 6 of KMMC Rules 1994. On these set of

grounds, the petitioners have filed the present petition

challenging the impugned endorsement issued by the fourth

respondent.

3. Heard the learned counsel appearing for the

petitioners and the learned Additional Government Advocate

appearing for the respondents. Their submissions are placed

on record.

4. The issue involved in the top noted writ petition is

covered by a judgment rendered by a Division Bench of this

Court in W.P.No.10601/2019 and connected cases. It would

be useful for us to cull out the relevant paragraphs 47 to 49 of

the above said judgment which reads as under:

"47. In short the conclusions can be summarized as under:

(a) Rule 8-B of the said Rules, as amended on 12th August, 2016 is constitutionally valid;

(b) All pending applications for grant of mining leases/licenses under the said Rules which were filed before 12th August, 2016 and pending on the said date shall become automatically ineligible unless the cases specifically fall within any of the exceptions specifically carved out in clauses (a) to (d) and (d-1) of sub-rule (2) of Rule 8-B.

(c) Only those application which were filed before th 12 August, 2016 to which any of the clauses (a) to (d)and (d-1) of sub-rule(2) of Rule 8-B applies, can be decided in accordance with the Rules prevailing prior to 12th August, 2016;

(d) While deciding the question whether clauses (a) to (d) and (d-1) of sub-rule (2) of Rule 8-B are attracted, if

any deeming fiction providing for grant of deemed no objection certificates is expressly available under any of the express provisions of the said Rules such as sub-rule (6) of Rule 8, the same could be applied;

(e) In view of express provisions of sub-rule (1) and (2) of Rule 8-B, merely because there is a failure on the part of the authorities to obtain clearances/no objection certificates/reports, the mandate of sub-rule (1) of Rule 8- B cannot be ignored and it shall apply with full force inasmuchas by sub-rule (1) of Rule 8-B, all applications received prior to 12th August, 2016 were made ineligible. The only exception provided is in the sub-rule (2) in case of the applications which are governed by clause (a) to (d) and (d-1) of sub-rule(2). No other exception to sub-rule (1) of Rule 8-B has been provided in the said Rules and therefore, cannot be carved out by the Court.

48. Now coming to the petitions in hand, wherever the applications made before 12th August, 2016 are pending as of today, the same will have to be considered only in the context of applicability of exceptions carved out by sub-rule (2) of Rule 8-B. In case of those applications where endorsements/ rejection have been issued, those applications will have to be reconsidered only for ascertaining whether any of the clauses (a) to (d) and (d-

1) of sub-rule (2) of Rule 8-B are attracted. To decide whether any of the clauses (a) to (d) and (d-1) are applicable, factual adjudication will have to be made. It must be noted here if on holding inquiry, it is held that none of the clauses (a) to (d) and (d-1) are attracted, then the applications will have to be held as ineligible. In some cases, deeming provision of sub-rule (6) of Rule 8 has been invoked to establish applicability of sub-rule (2) of

Rule 8 (B). Whether deeming fiction is applicable or not is an issue which requires factual adjudication. We must note here that as, in this group we are not called upon to decide the issue of interpretation of applicability of outer limit of 24 months provided in clause (e) of sub-rule (2) of Rule 8-B, the said issue is kept open. However, Writ Petition No 38427 of 2018 will be governed by the order dated 28th June, 2019 and will stand disposed of in terms of the said order.

49. Accordingly, in view of the law which we have laid down, we pass the following order in all petitions, except Writ Petition No 38427 of 2018:-

i) In those petitions where applications made for grant of mining leases made before 12th August 2016 are pending, the same shall be examined by the Competent Authority only in the context of applicability of sub-rule (2) of Rule 8-B as amended in the light of what we have held earlier;

(ii) In those cases where endorsements of rejection have been issued, by withdrawing the said endorsements, the applications for mining leases filed before 12th August 2016 shall be reconsidered only in the context of applicability of sub-rule (2) of Rule 8-B. Even applicability of deeming fiction under sub-rule (6) of Rule 8 shall be decided wherever such a plea is raised. Appropriate order shall be passed within a period of three months from today;

(ii) Appropriate order shall be passed in the light of what is held by us in paragraph 47 (forty-seven) above;

(iii) The writ petitions are disposed of on the above terms;

(iv) There will be no order as to costs."

5. Now let us examine the case of the petitioners in

the light of the law laid down by this Court in the decision cited

supra. The petitioners have filed their respective applications

for grant of quarrying leases in respect of ordinary building

stone. On examination, we would find that all the applications

are submitted before 12.08.2016. The petitioners apart from

seeking a writ of certiorari are also seeking for a writ of

mandamus to direct the authorities to secure No Objection

Certificates, opinions, views and reports. In support of their

contentions, the petitioners have placed reliance on the

decision rendered by this Court in W.P.No.41468/2017 which

was disposed of by taking note of the order passed in

W.P.No.43235/2017. wherein this Court has disposed of the

petitions with a direction to the concerned authorities to send

their views/opinions/reports to the authorities of the Mines and

Geology Department within two weeks from the date of the said

order.

6. We have examined the contentions raised in the

writ petition and also the decisions cited by the petitioners.

Such a relief cannot be granted in the light of the proposition

laid down by a Division Bench of this Court in

W.P.No.10601/2019 and connected matters disposed of on

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16.8.2019. This Court while examining the decisions rendered

in W.P.No.25421/2017 has held that the aforesaid decision

does not lay down correct law and the same does not have any

binding precedent.

7. The Division Bench of this Court having taken note

of sub-rule (1) of Rule 8-B was of the view that the decisions of

the co-ordinate Benches are not at all binding precedents on

the issue as to whether the Court can direct the concerned

authorities to obtain clearances/no objection certificates. In this

background, the Division Bench of this Court was of the view

that none of the decisions on identical issues relied upon by the

petitioners have a binding precedent.

8. Now coming to the impugned endorsements, we

would find that the authorities have stressed more on the cut

off date. The fourth respondent in a hasty manner has applied

the provisions of 8-B(1) and has proceeded to reject the

applications by holding that they have become ineligible. On

bare perusal of the impugned endorsements at Annexures-"K

to T" respectively, we would find that the same are passed

without application of mind and as such on this count the

impugned endorsements are liable to be quashed by this

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Court. While examining the applications, the authority was

required to find out as to whether the exceptions carved out by

sub-rule (2) of Rule 8-B are applicable to the present case. To

decide whether any of the clauses (a) to (d) and (d-1) of sub-

rule(2) of Rule 8-B are applicable, factual adjudication will have

to be made. The authorities only on an inquiry shall proceed to

determine as to whether any of the clauses (a) to (d) and (d-1)

are attracted. If the exception carved out are not applicable,

the applications will have to be held as ineligible. The

authorities are required to examine the deeming provision of

sub-rule (6) of Rule 8.

9. Accordingly, in view of the directions contained in

the decision cited supra, we pass the following order:

(i) The Competent Authority is directed to examine the applications submitted by the petitioners in the context of applicability of sub-rule(2) of Rule 8-B of KMMC Rules;

(ii) The Competent Authority shall withdraw the impugned endorsements and reconsider the applications of the petitioners for grant of mining leases filed before 12.8.2016 only in the context of applicability of sub-rule (2) of Rule 8-B of KMMC Rules. Even applicability of deeming fiction under sub-rule (6) of Rule 8 of KMMC Rules shall be