Karnataka High Court
Smt. Yogitha Sedthi vs The State Of Karnataka on 20 July, 2021
Author: Chief Justice Govindaraj
.
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.11719 OF 2021 (GM-MM-S)
BETWEEN:
SMT. YOGITHA SEDTHI
W/O SRI. SREEKHARA SHETTY
AGED 45 YEARS
RESIDING AT HOUSE NO 17
AMBHA NIVASA, KEDINJE VILLAGE AND
POST KARKALA TALUK
DAKSHINA KANNADA-574110
...PETITIONER
(BY SRI. I. THARANATH POOJARY, ADVOCATE-PH)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF COMMERCE AND INDUSTRIES
VIKASA SOUDHA, BENGALURU 560001
REP BY SECRETARY
2. THE DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
KHANIJA BHAVAN, RACE COURSE ROAD
BANGALORE-560001
3. THE SENIOR GEOLOGIST
DEPARTMENT OF MINES AND GEOLOGY
RAJATHADRI MANIPALA
UDUPI- 576104
.
2
4. THE DEPUTY CONSERVATOR OF FOREST
KUNDAPURA DIVISION
KUNDAPURA-576201
... RESPONDENTS
(BY SRI. S.S. MAHENDRA, AGA-PH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT
IN THE NATURE OF MANDAMUS DIRECTING THE RESPONDENTS
TO EFFECT DEEMED EXTENSION OF THE PETITIONER'S QUARRY
LEASE QL:DKD246/2010-11 IN TERMS OF RULE 8-A(4) OF THE
KMMC RULES, CONSIDERING THE RENEWAL APPLICATION DATED
19.01.2015 MADE BY HER LATE MOTHER PRODUCED AT
ANNEXURE-A AND ETC.
*****
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING AND HAVING BEEN RESERVED FOR ORDERS ON
05.07.2021, THIS DAY, SURAJ GOVINDARAJ J., PRONOUNCED THE
FOLLOWING:
ORDER
1. The Petitioner is before this Court seeking for a
mandamus directing the respondents to effect deemed
extension of the Petitioner's quarry lease in terms of
Rule 8-A(4) of the Karnataka Minor Mineral Concession
Rules, 1994 by considering the renewal application
submitted on 19.01.2015 as also for a certiorari to
quash the endorsement dated 22.02.2017 issued by the
4th respondent rejecting the application filed by the
Petitioner's mother stating that 911.17 acres in
.
Sy.No.354 is a deemed forest as regards which quarry
lease cannot be granted.
FACTS:
2. The Petitioner's mother, late Amba Sedthi, was granted
a quarry lease in QL.No.DKD/246/2010 for building
stone in respect of 2 acres of land in Sy.No.354/P1A of
Nitte Village, Karkala on 13.04.2010 for a period of five
years which expired on 12.04.2015. Mother of the
Petitioner during her lifetime had applied for renewal of
said lease by filing an application on 19.01.2015 within
time in terms of Rule 21(2) of Karnataka Minor Mineral
Concession Rules, 1994 (for short, 'KMMC Rules') as
then applicable.
3. The Petitioner contends that in view of the amendment
to the KMMC Rules, which came into effect from
30.06.2020 introducing Rule 8-A(4) of KMMC Rules, the
Petitioner is entitled to deemed extension of lease for a
period of 20 years calculated from the date of renewal
which needs to be granted in favour of the
.
Petitioner who is the only legal heir of the original lessee
in terms of Rule 19-C of the KMMC Rules.
4. Sri.Tharanath Poojary, learned counsel for the
Petitioner submits that:
4.1. the requirements of Rule 8-A(4) of KMMC Rules
have been complied with;
4.2. 'No Objection Certificate' (NOC) from the Senior
Geologist was received on 27.04.2017
(Annexure-E).
4.3. The forest NOC was not issued. However, by
way of endorsement dated 22.02.2017
(Annexure-B), it is stated that in the lands
covered under Sy.No.354, an extent of 911.7
acres of land is deemed forest out of 1366 acres
of government land and as such, the Forest
Department has no objection for grant of quarry
lease over the land which is not deemed forest.
.
4.4. The said endorsement does not state whether the
land over which the lease was granted to the
Petitioner's mother comes within 911.7 acres of
deemed forest land. Be that as it may, he
submits that subject land comes within the
remaining barren 354 acres, does not come
within the deemed forest area.
4.5. Relying on the decision of this Court in
W.P.No.54476/2016 and connected matter in the
case of Dhananjay vs. State of Karnataka and
others (of which one of us, the Hon'ble Chief
Justice is the author) he seeks for petition to be
allowed and renewal of quarry lease to be
granted.
5. Per contra, Sri.S.S.Mahendra, learned Additional
Government Advocate for the respondents would
submit that:
.
5.1. The land over which the lease had been granted
in favour of the Petitioner's mother comes in a
deemed forest area and therefore, the
requirement under Rule 8-A(4) of KMMC Rules
being the receipt of NOC from the Forest
Department has not been complied with and as
such, the Petitioner is not entitled for the relief
sought for.
6. Heard Sri.Tharanath Poojary, learned counsel for the
Petitioner and Sri.S.S.Mahendra, learned Additional
Government Advocate for respondents and perused the
papers.
7. On the basis of the submissions made, the points which
is required to be determined by this Court are:
1. Whether the concept of deemed forest is
recognised under the Forest (Conservation)
Act, 1980?
.
2. In the event of the land not being forest land,
is NOC from the Forest Department required
for extension of lease in the light of the
deemed extension under Rule 8-A(4) of KMMC
Rules?
3. What order?
8. Answer to Point No.1: Whether the concept of
deemed forest is recognised under the Forest
(Conservation) Act, 1980?
8.1. The Division Bench of this Court in its judgment
dated 12.06.2019 passed in W.P.No.54476/2016
and connected matter in the case of Dhananjay
vs. State of Karnataka and others (of which one
of us, the Hon'ble Chief Justice is the author) has
categorically held that there cannot be a concept
of deemed forest.
8.2. This Court has categorically observed that the
Government of Karnataka had undertaken
exercise in terms of the direction issued by the
Hon'ble Apex Court on 12.12.1996 in the case of
.
T.N.Godavarman Thirumulkpad vs. Union of
India and others reported in (1997) 2 SCC 267
and having identified the lands had filed an
application before the Hon'ble Apex Court for
exclusion of certain area from the purview of
Forest Act, as regards which, an order is yet to be
passed.
8.3. In view of the said aspect having already been
considered by this Court, it would now be
required for the authorities to conduct an enquiry
under Section 2 of the Forest Act to determine
whether the land in question is a forest or forest
land as per the decision of the Apex Court in
T.N.Godavarman's supra.
8.4. The endorsement dated 22.02.2017 does not
indicate as to whether there was infact an enquiry
conducted in terms of the Section 2 of the Forest
.
Act. The endorsement at Annexure-B is very bald
one.
8.5. Hence, we answer point no.1 by holding that
there cannot be a concept of deemed forest,
there needs to be enquiry conducted under
Section 2 of the Forest Act in order to determine
whether a particular land is forest land or not. If it
is a forest land, notwithstanding grant of quarrying
lease, quarrying operations cannot be carried out
unless consent under Section 2 of Forest Act is
obtained.
9. Answer to Point No.2: In the event of the land not
being forest land, is NOC from the Forest
Department be required for extension of lease in the
light of the deemed extension under Rule 8-A(4) of
KMMC Rules?
9.1. For easy reference, Rule 8-A(4) of KMMC Rules
is extracted hereunder:
"8-A(4): The period of all the lease or
license of the non-specified minor
minerals except the mining leases of the
minerals now classified as minor minerals
.
granted before the date of
commencement of the Karnataka Minor
Mineral Concession (Amendment) Rules,
2016, the validity of their leases or license
are expired or about to expired under sub-
rule (2), shall be extended and be
deemed to have been extended with
effect from the date of expiry of the period
of renewal last made up-to a period
ending on 31st march, 2020 or till the
completion of renewal period, if any, or a
period of twenty years, from the date of
grant of such lease or license, whichever
is later, subject to the condition that all the
terms and conditions of the lease have
been complied with and also subject to
the condition that renewal application for
the expired lease had been made by the
lessee within the time period required for
filing such renewal application."
9.2. For the purpose of renewal of lease, Rule 8-A (4)
of the KMMC Rules does not contemplate the
requirement of NOC by the Forest Department.
There is a deemed extension contemplated under
the aforesaid Rule inasmuch as the only
requirement being that the application for renewal
having been made prior to the expiry of the earlier
lease.
.
9.3. No sooner than an application for renewal being
made prior to the expiry of the lease in respect of
non-specified minor minerals, the lease is
deemed to have been extended with effect from
the date of expiry of the period of renewal last
made upto a period ending on 31st March 2020 or
till the completion of renewal period, if any, or for
a period of twenty years, from the date of grant of
such lease or license, whichever is later, subject
to the condition that the lessee has complied with
all the terms and conditions of the lease and that
the renewal application for the expired lease has
been made by the lessee within the time period
required for filing such renewal application.
9.4. The aspect of whether quarrying can be carried
out or not would depend on the necessary
permissions to be granted under the Environment
(Protection) Act, 1986 or otherwise, if so required.
.
9.5. Hence, we answer Point No.2 by holding that
Rule 8-A(4) of the KMMC Rules does not
contemplate the requirement of NOC from the
Forest Department.
10. Answer to Point No.3: What Order?
10.1. The endorsement dated 22.02.2017 at
Annexure-B is hereby quashed with a direction to
the respondent No.4 to carry out necessary
enquiry in terms of Section 2 of the Forest
(Conversation) Act, 1980 to determine whether
the land in question is a forest or a forest land
within a period of two months from the date of
receipt of a certified copy of this order;
10.2. A mandamus is issued directing the 3rd
respondent to consider the application for renewal
in terms of Annexure-A to the Writ Petition dated
30.01.2015 in the light of the discussion made
hereinabove, within 1 month of the receipt of the
.
report from the respondent No.4, in terms of 10.1
above ;
10.3. Needless to say that the above is restricted only
with regard to the extension of lease and/or
execution of necessary lease deed, if any and
does not confer any right to on the petitioner to
carry out quarrying activity. The right of the
Petitioner to carry out any quarrying activity will
depend on the permissions required to be
obtained by the Petitioner under the Environment
(Protection) Act, 1986;
10.4. The petition is allowed.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Prs*
