Karnataka High Court
M/S Ganapathy Granite Impex Pvt ... vs State Of Karnataka on 24 May, 2021
Author: Chief Justice Govindaraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MAY, 2021
PRESENT
THE HON'BLE SHRI.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE SHRI.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.30397 OF 2018 (GM-MMS)
C/w.
WRIT PETITION NO.30399 OF 2018 (GM-MMS)
IN W.P.NO.30397 OF 2018 (GM-MMS)
Between:
M/s. Ganapathy Granite Impex Pvt Ltd.,
Formerly known as M/s. Ananya Export Pvt Ltd.,
Represented by its Managing Director
M.K. Ganapathy,
Aged about 50 years,
Son of Sri M.P. Kuttappa,
Having its Office at:
No.22B, Hosakote Industrial Area,
Hosakote - 562 114,
Bengaluru District.
...Petitioner
(By Shri Aravind B. Reddy, Advocate)
And:
1. State of Karnataka,
Represented by Secretary
Department of Commerce and Industries
(MSME & Mines)
VikasaSoudha, Bangalore - 560 001.
2
2. Director
Department of Mines and Geology,
Khanija Bhavan, Race Course Road,
Bangalore - 560 001.
3. Deputy Director,
Department of Mines and Geology,
Chickballapur - 562101,
Chickballapur District.
4. Deputy Commissioner,
District Offices Complex,
Sidlaghatta Road, ChickballapurDistrict,
Chickballapur - 562101.
5. M/s. Fair Deal Stones Pvt. Ltd,
No.86-Q-No.9, Jigani,
Industrial Area, I Phase,
Anekal Taluk - 562 106,
Bengaluru Urban District,
Represented by its Director,
Narayana JaichandlalBahety.
...Respondents
(By Shri Vikram Huilgol,
Additional Government Advocate for R1 to R4,
Shri Bharath Kumar V, Advocate for R5)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to call for the records which
ultimately resulted in passing order at Annexure-A dated
20.06.2018 passed by 1st respondent and to quash the same
and etc.
IN W.P.NO.30399 OF 2018 (GM-MMS)
Between:
Sri Janardhan Naik,
S/o Sri Eranaik,
Aged about 34 years,
3
R/at Thulasidoddy village,
Shivanahalli Post, Kanakapura Taluk,
Ramanagar District - 571511.
...Petitioner
(By Shri D.N. Nanjunda Reddy, Senior Advocate
for Shri L.M. Chidanandayya
and Smt. Kusuma R. Prasad, Advocates)
And:
1. State of Karnataka,
Represented by Secretary
Department of Commerce and Industries
(MSME & Mines)
Vikasa Soudha,
Bangalore - 560 001.
2. Director
Department of Mines and Geology,
Khanija Bhavan,
Race Course road,
Bangalore - 560 001.
3. Deputy Director,
Department of Mines and Geology,
Chickballapur - 562101,
Chickballapur.
4. Deputy Commissioner,
District Offices Complex,
Sidlaghatta Road,
Chickballapur District,
Chickballapur - 562101.
5. M/s. Fair Deal Stones Pvt. Ltd,
No.86-Q-No.9, Jigani,
Industrial Area, I Phase,
Anekal Taluk - 562 106,
Bengaluru Urban District.
4
Respondents
(By Shri Vikram Huilgol,
Additional Government Advocate for R1 to R4,
Shri Bharath Kumar V, Advocate for R5)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to call for the records which
ultimately resulted in passing order at Annexure-A dated
20.06.2018 and to quash the same and etc.
These writ petitions, having been heard and reserved,
coming on for pronouncement of order, this day, the Chief
Justice made the following:
ORDER
These two writ petitions are clubbed together as they take
exception to the same order passed on 20th June 2018 by the
Secretary to the Government of Karnataka, Commerce and
Industries Department (MSME and mines). The order deals with
10 applications made by different parties for grant of quarrying
lease for minor mineral pink granite in respect of a land in
Survey No.43 of Daraburu village of Chikkaballapur Taluk and
District. The details of the said 10 applications have been set
out. Out of the 10 applicants, one of the applicants M/s. Samrat
Minerals withdrew its application. The details of the said
applications as set out in the impugned order are being
reproduced for the sake of convenience as under:
SL. Appli- Date of Name & address of the Applied
No. cation Application Applicants area in
No. extent
1 169/04 18.11.2014 M/s. Tilak Granites, M. 10-00
Gopal @ Gopal Bovi,
C.M. Complex, Dr.
Ambedkar Road,
Devanahalli Post and
Taluk, Bengaluru Rural
District
2 241/04 05.02.2005 Sri S. Ahmed 1-00
3 242/04 05.02.2005 Sri S. Ahmed 1-00
4 243/04 05.02.2005 Sri S. Ahmed 1-00
5 245/04 05.02.2005 Sri S. Ahmed 1-00
6 221/05 14.10.2005 M/s Samrat Minerals 20-00
7 59/10 08.04.2010 M/s Fairdeal Stones Pvt. 8-00
Ltd. #860, Road No.9,
Jigani Industrial Area,
Anekal Taluk, Bengaluru
Urban District.
8 323/12 21.09.2012 M/s Ananya Exports 8-00
Pvt. Ltd. # 22B Hoskote
Industrial Area, Hoskote
- 562114, Bengaluru
District
9 314/14 21.01.2014 Sri Janardhana Naik 8.00
s/o. Era Naik,
Tulasidoddi Village,
Shivanahalli Post,
Kanakapura Taluk.
2. The issue framed for the consideration under the
impugned order was whether the applications made by 9
applicants can be considered for grant of quarrying lease in
respect of land in Sy.No.43 and if yes, which of them are
eligible. The writ petitioners in these writ petitions and private
respondent in both the writ petitions M/s. Fair Deal Stones
Private Limited (for short "Fair Deal Stones") are the applicants
out of the nine applicants. By the impugned order, it was held
that M/s. Fair Deal Stones was the only eligible applicant and
therefore, it was held that Clause (d) of Sub Rule (2) of Rule 8-B
of Karnataka Minor Mineral Concession Rules, 1994 (for short
"the said Rules") is applicable in the case of M/s. Fair Deal
Stones. Therefore, the application made by M/s. Fair Deal
Stones was allowed and the other applications were rejected.
3. We must note here that along with memo dated 19th
March 2021, the Additional Government Advocate has filed on
record photo copies of applications of all the applicants. A
combined sketch is also produced on record by the State
Government showing the areas in respect of which applications
were made by various applicants. The said sketch shows that
M/s. Tilak granites applied for quarrying lease in respect of 10
acres. The petitioners in these two petitions applied for the
same area of 8 acres. The Application made by M/s Fair Deal
Stones was in respect of the area of 10 acres though the above
chart incorporated in the impugned order shows the area
applied by the said company as 8 Acres. In fact, in paragraph
no. 6 of the statement of objections filed by M/s Fair Deal
Stones, a statement has been made that the area was reduced
by the said company to 8 Acres. A combined sketch produced
by the State Government shows that the petitioners in these two
petitions and M/s. Fair Deal Stones had applied in respect of the
same area.
4. We have heard the arguments of the learned counsel for
the petitioners in both the petitions. The learned counsel
appearing for the petitioners have invited our attention to the
provisions of the said Rules before and after the amendment
made with effect from 12th August 2016. The first submission
made is that the No Objections received from the Deputy
Conservator of Forest and the Joint Inspection Report as
provided in sub-rule (5) of Rule 8 of the said Rules were in
respect of the area in respect of which the petitioners, M/s. Fair
Deal Stones and the other applicants had made applications.
The submission of the petitioners is that the No Objection and
the Joint Inspection Report were in respect of area of 8 acres in
respect of which the three parties involved in these petitions had
applied. Therefore, the No Objection Certificate and the Joint
Inspection Report will enure to the benefit of all the applicants.
Their submission is that assuming that the No Objection of the
Deputy Conservator of Forest may have been called for on the
basis of the application made by M/s. Fair Deal Stones and
though the Joint Inspection may have been carried out on the
basis of the application made by the said party, the No Objection
Certificate and the Joint Inspection Report related to the land
and the same will be for the benefit of all the applicants. It was
further submitted that in any case, on the basis of the
applications made by other applicants, the Authorities failed to
perform their obligation of seeking No Objection and Joint
Inspection Report. The submission, therefore, is that the
impugned order erroneously proceeds on the footing that only
M/s. Fair Deal Stones was qualified. The learned counsel
submitted that as the petitioners were also eligible under clause
(d) of Sub-Rule (2) of Rule 8B, their applications were required
to be considered in the light of clause (e) of Sub Rule (2) of Rule
8-B of the said Rules of 1994, by applying the rules which were
in force prior to 12th August, 2016. It is, therefore, submitted that
priorities as fixed by Sub Rule (1) of Rule 12 which existed on
the Rule book as on 12th August, 2016 will have to be
considered.
5. The learned counsel appearing for M/s. Fair Deal Stones
invited our attention to the language used in Sub Clauses (d)
and (d-1) of Sub Rule (2) of Rule 8-B. He submitted that
Clause(d) will be applicable only to those applications pending
as on 12th August 2016 in respect of which No Objection
Certificates and Joint Inspection Reports have been received
before 12th August 2016. Inviting our attention to the No
Objection Certificate, he submitted that the same was issued on
the basis of the application made by M/s. Fair Deal Stones. He
submitted that No Objection Certificate and Joint Inspection
Report have been submitted on the basis of the application
made by M/s. Fair Deal Stones. He submitted that as we are
dealing with non-specified minor mineral, No Objection
Certificate of only Deputy Conservator of Forest was required
along with the Joint Inspection Report of the Assistant
Commissioner and Deputy Director of Senior Geologist as the
land subject matter is a gomal land. He invited our attention to
the Joint Inspection Report at Annexure-R2 to the Statement of
Objections filed by his clients. He pointed out that the Deputy
Conservator of Forest has submitted No Objection Certificate, a
copy of which is at Annexure-R3 is based on the application
made by M/s. Fair Deal Stones. He submitted that the No
Objection Certificate and Joint Inspection Report are specifically
in respect of the application of M/s. Fair Deal Stones. He
submitted that the Joint Inspection Report was of 3rd June 2010
and No Objection Certificate of the Deputy Conservator of
Forest was of 6th March, 2012 and thus, on 16th of August, 2016,
the application made by the M/s. Fair Deal Stones was complete
in all aspects. He submitted that the application of the petitioner
in W.P.No.30397/2018 was made on 21st September 2012 and
that the application of the petitioner in W.P.No.30399/2018 was
made much later on 21st January, 2014. Thus, much before the
applications were made by the petitioners, the process on the
basis of the application made by M/s. Fair Deal Stones was
completed. He pointed out that M/s. Fair Deal Stones filed
W.P.No.41479/2017 complaining about inaction on the part of
the Authorities in considering the application. Accordingly, on
12th September 2017, a Division Bench of this Court directed the
Director of department of Mines and Geology to consider and
decide the application made by the petitioner for execution of
lease within six weeks. His submission is that even going by the
priorities as provided in Rule 12, on the date on which the
process on the basis of the application of M/s. Fair Deal Stones
was completed, there was no other application pending which
had higher priority in terms of Rule 12 of the said Rules of 1994.
He submitted that M/s. Fair Deal Stones was entitled to priority
under Clause (ii) of Sub-Rule (1) of Rule 12 of the said Rules of
1994 as it existed prior to 16th August, 2016. He submitted that
looking to the language used in Clauses (d) and (d-1) of Sub
Rule (2) of Rule 8-B, No Objection Certificates and Joint
Inspection Reports must be in respect of a particular application
and in this case, the No Objection Certificate and Joint
Inspection Report were specifically in respect of the application
made by M/s.Fair Deal Stones. He submitted that the petitioners
slept over their applications, but M/s. Fair Deal Stones had filed
a writ petition in the year 2017 seeking a writ of mandamus. He
submitted that only those applications will have benefit of Sub
Rule (2) of Rule 8-B in respect of which No Objection
Certificates and Joint Inspection Reports were received prior to
12th August 2016. He submitted that no other application was
eligible on 12th August 2016 except the application made by M/s.
Fair Deal Stones. He would, therefore, submit that there is no
merit in the petitions and the same deserve to be rejected.
6. The learned Additional Government Advocate urged that
the view taken by the State Government under the impugned
order cannot be faulted with.
7. We have carefully considered the submissions. It is
necessary to make a reference to the relevant rules with which
we are concerned. Firstly, we are concerned with Rule 8 of the
said Rules of 1994. Sub Rule (5) of Rule 8 is relevant, which
reads thus:
"(5) The Competent Authority shall before
granting or renewing a lease, licence, working
permission, consult.-
(i) in case of specified minor minerals, the
Deputy commissioner of the District concerned and
obtain no objection certificate;
(ii) in the case of non-specified minor
minerals, the Tahsildar of the Taluk concerned and
obtain No Objection Certificate;
(iii) in case of all minor minerals, the
Deputy Conservator of Forest of the concerned
jurisdiction and obtain No Objection Certificate;
(iv) in case of all minor minerals in
Gomal/gayarana/hullubanikharab etc. type of
lands, the Assistant Commissioner of Revenue
Department and Deputy Director/Senior Geologist
concerned, who shall furnish a Joint Inspection
Report through Deputy Commissioner in
accordance with Circular No.RD 72 LGP 98, dated
24-2-1999.
(v) in case of all minor minerals,
jurisdictional Mines and Geology Officer and obtain
technical report along with sketch duly mentioning
GPS Co-ordinates; and shall take action in
accordance with Chapter III, in respect of specified
minor mineral and in accordance with Chapters IV
and V, in respect of non-specified minor mineral as
the case may be."
The other important provisions with which we are
concerned are Sub-Rules (1) and (2) of Rule 8-B, which read
thus:
"8-B. Status of applications received. - (1)
All applications received and pending for grant
of lease or license prior to the date of
commencement of the Karnataka Minor Mineral
Concession (Amendment) Rules, 2016, shall
become intelligible including the applications
received for grant of mining leases of the
minerals that are now classified as minor
mineral.
(2) Notwithstanding anything contained
in sub-rule (1), the following shall remain
eligible on and from the commencement of the
Karnataka Minor Mineral Concession
(Amendment) Rules, 2016, namely.-
(a)Applications received upon the notification
issued under Rule 8-B existed before the
Karnataka Minor Mineral Concession (Amendment)
Rules, 2016.
(b) Where the Committee that existed
under the provisions of Rule 11 or District Task
Force Committee has recommended for grant of a
quarrying lease or license for grant of mining lease,
before the commencement of the Karnataka Minor
Mineral Concession (Amendment) Rules, 2016.
(c) Where in the case of minerals now re-
classified as minor mineral by the Central
Government by Notification No. S.O. 423 (E), dated
10-2-2015, No Objection Certificates from revenue
and forest departments and the approved mining
plan from the Indian Bureau of Mines (IBM) have
been received before commencement of the
Karnataka Minor Mineral Concession (Amendment)
Rules, 2016.
[(d) Applications received and pending
for grant of lease or licence in case of specified
minor minerals before commencement of the
Karnataka Minor Mineral Concession
(Amendment) Rules, 2016 and for which No
Objection Certificate (NOC) have been received
in the office of Directorate of Mines and
Geology from the Deputy Conservator of Forest
for all Lands, Deputy Commissioner in case of
Kharab lands, Assistant Commissioner
(Revenue) and Deputy Director or Senior
Geologist (Joint inspection report) in case of
Gomala lands in accordance with the Circular
No. RD 72 LGP 98, dated 24-2-1999 before
commencement of the Karnataka Minor Mineral
Concession (Amendment) Rules, 2016 and shall
be considered and disposed by the State
Government subject to obtaining No Objection
Certificate (NOC) from the deputy
Commissioner of the concerned District before
grant;]
[(d-1] Applications received and pending for
grant of lease or licence in the case of non-
specified Minor Minerals before commencement of
the Karnataka Minor Mineral Concession
(Amendment) Rules, 2016 and for which No
Objection Certificates (NOCs) have been received
in the Department of Mines and Geology of the
concerned District Office, from the Deputy
Conservator of Forest for all lands, Tahsildar
incase of Karab lands, Assistant Commissioner and
Deputy Director or Senior Geologist (Joint
Inspection Report), in the case of Gomala lands,
before commencement of the Karnataka Minor
Mineral Concession (Amendment) Rules, 2016,
and shall be processed by the Competent Authority
as under the existing rules before commencement
of the Karnataka Minor Mineral Concession
(Amendment) Rules, 2016.
(e) These applications shall be
considered for grant of quarrying lease or
license, or otherwise as per the provisions that
existed before the Karnataka Minor Mineral
concession (Amendment) Rules, 2016 subject to
fulfillment of the conditions specified for the same,
with the approval of the State Government]:
Provided that in case of grant of quarrying
lease or license covered by clause (b), (c) and (d)
of sub-rule (2), the lease shall pay, in addition to
the royalty, an amount which shall be equal to the
Average Additional Periodic Payment payable by
the holders of quarry lease or license granted
through auction within the Taluk if such average is
available for the Taluk, or within the District if such
average is not available for the Taluk, or within the
neighboring Districts if such average is not
available for the District, and if such average is not
available within the neighboring Districts, such
Average Additional Periodic Payment shall be
deemed to be fifty per cent of Royalty. This
deemed percentage shall be reset after three years
based on average obtained in auctions by 31-3-
2019; and if no auctions have taken place by 31-3-
2019 for deriving the average from Taluk, District or
neighboring districts, as the case may be, then the
deemed rate will become the final rate for the
Average Additional Periodic Payment:
Provided further that when such Royalty and
Average Additional Periodic Payment is paid, then
the payment by the lessee for the District Mineral
Foundation shall be as payable by the holders of
lease or license through action:
Provided also that in respect of any mineral
that are now re-classified as minor minerals by the
Central Government vide Notification No. S.O. 423
(E) dated 10-2-2015, no quarrying lease or licence
shall be granted except with the previous approval
of the State Government."
(emphasis added)
8. As for as Rule 8-B is concerned, this Court by the
judgment and order dated 16th August 2019 in the case of K.
Thirumalesh v. State of Karnataka and others1 has
interpreted Sub-Rules (1) and (2) of Rule 8B of the said Rules.
The conclusions are in paragraphs 47 to 49 of the said decision,
which read thus:
"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;
W.P.No.10601 of 2019 and connected matters
(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 12th 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 inasmuch as 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;
(iii) Appropriate order shall be passed in the light
of what is held by us in paragraph 47 (forty
seven) above;
(iv) The writ petitions are disposed of on the
above terms;
(v) There will be no order as to costs."
(emphasis added)
In the present case, it is apparent that No Objection
Certificate of the Deputy Conservator of Forest contemplated by
Clause (iii) of Sub Rule (5) of Rule 8 has been issued on the
basis of the application made by M/s. Fair Deal Stones.
However, the Joint Inspection Report has been submitted on the
basis of the letter dated 11th May 2010 addressed by the Director
of Mines and Geology to the Assistant Commissioner,
Chikkaballapur Sub Division and the Senior Geologist,
Chikkaballapur District. A copy of the said letter has been
produced by the State Government along with the memo dated
1st April 2021. The letter generally refers to "applications"
received for grant of quarrying lease in respect of the land in
Sy.No.43 and it refers to area of 10 acres. But a copy of the said
letter has been forwarded to M/s. Fair Deal Stones. As stated
earlier, the application of M/s. Fair Deal Stones was
subsequently confined to an area of 8 acres. But the application
of M/s. Tilak granites was in respect of 10 acres. The subject of
the letter dated 11th May 2010 clearly records that it is regarding
the conduct of joint inspection and furnishing of report with
respect to gomal land in Sy.No.43 of Daraburu village to the
extent of 10 acres. The Joint Inspection Report relied upon by
the State Government in the impugned order does not refer to
any specific application of M/s. Fair Deal Stones and the same is
in respect of the larger area of 10 acres.
9. Under Sub-Rule (1) of Rule 8-B, all applications pending
as on 12th August 2016 were rendered ineligible. Therefore, the
applications of the petitioners and M/s. Fair Deal Stones were
rendered ineligible. The question is whether the applications
were covered by exceptions carved out to Sub-Rules (1) by any
of the clause (a) to (d1) of Sub-Rule (2) of Rule 8B.
10. The argument of the State Government and M/s. Fair Deal
Stones is that the language of Clauses (d) and (d-1) of Sub Rule
(2) of Rule 8-B makes it clear that the no Objection
Certificates/Joint Inspection Reports referred therein must be
with reference to a specific application of a particular applicant.
We have quoted Sub-Rule (5) of Rule 6. The object of getting No
Objection Certificate from the jurisdictional Deputy Conservator
of Forest appears to be to ascertain whether the land in respect
of which an application for grant of quarrying lease is made is a
forest land or whether there is any prohibition on carrying on
quarrying operations on the subject land under the laws
regarding forest and environment. The Deputy Conservator is
not concerned with the applicant or his credentials. The No
Objection is confined to a particular land and not the applicant.
He is not concerned with qualifications or disqualifications of the
applicant. The requirement of a Joint Inspection Report in case
of gomal land appears to be incorporated with a view to
ascertain whether the gomal land continues to be really useful
for the purposes of grazing and whether it is fit for carrying on
quarrying operations. Therefore, considering the aforesaid
object, the inspection is required to be conducted by the
jurisdictional Assistant Commissioner and the jurisdictional
Senior Geologist of the Department of the mines and Geology.
While conducting the Joint Inspection, the officers are not
concerned with the credentials of any particular applicant. They
are concerned with the land. Thus, the No Objection Certificates
or Joint Inspection Report under Sub Rule (5) of Rule 8 are qua
lands and not qua the applicants.
11. For example, if the licensing Authority had received three
applications in respect of the same land from three different
applicants for exploitation of the same mineral, the applications
could be considered on the basis of No Objections Certificates
and Joint Inspection Report in respect of land subject matter of
the applications. It was not necessary for the Licensing Authority
to call for separate No Objections Certificates and Joint
Inspection Reports in respect of each application. When
Clauses (d) and (d-1) of Sub Rule (2) of Rule 8-B talk about the
"Applications......for which" No Objection Certificates/Joint
Inspection Reports have been received, obviously, the reference
is to the lands in respect of which applications are pending. The
reason, as stated above, is that the No Objection Certificates or
Joint Inspection Report under Sub Rule (5) of Rule 8 are qua
lands and not qua the applicants. If such interpretation is not
accepted, the actions of the licensing Authorities will be
vulnerable to allegations of discrimination prohibited by Article
14 of the Constitution of India. If the interpretation sought to be
put forth by M/s. Fair Deal Stones is accepted, the Licensing
Authority will have a choice to process only one application out
of several applications received in respect of the same land by
calling for No Objection Certificates and Joint Inspection Reports
only in respect of the said application and to keep the other
applications pending. The Licensing Authority was required to
call for the No Objection Certificates and Joint Inspection
Reports in respect of the land in respect of which applications
have been received for the grant of quarrying lease. If the
interpretation put by the Respondents is accepted, in case of
every application in respect of the same land, a separate No
objection and Joint Inspection Report will have to be called for.
Such interpretation will be irrational.
12. Therefore, the impugned order proceeds on a completely
wrong premise that compliances were made as contemplated by
Clauses (d) of Sub-Rule (2) of Rule 8B in respect of the
application of M/s. Fair Deal Stones. As observed earlier, the No
Objection Certificate and Joint Inspection Report referred in the
impugned order are in respect of the land and not the applicants.
Therefore, in the facts of the case, it was necessary to consider
all applications which were pending as on 12th August 2016 in
the context of applicability of clause (d) of Sub-Rule (2) of Rule
8B.
13. If clause (d) is attracted in respect of more than one
application in respect of the same land, the same will have to be
considered on the basis of the said Rules which were in force
before 2016 amendment came into force on 12th August 2016.
That is the specific provision in clause (e) of Sub-Rule (2) of rule
8B. Rule 12 was repealed with effect from 12th August 2016.
Hence, the applications subject matter of the case will be
governed by the priorities mentioned in Rule 12 as it existed till
12th August 2016. Rule 12 read thus:
"12. Priorities. - (1) Selection from amongst the
applicants for grant of quarrying lease under this
chapter shall be made in the following order of
preference, namely.-
(i) a Corporation or undertaking owned or controlled
by the State or Central Government and Joint
Sector projects with such Government
Corporations or undertakings;
(ii) persons who have already established hundred
per cent export oriented units for cutting and
polishing of granites in the State;
(iii) persons who have already established a Small-
scale Industrial Unit for cutting and polishing of
granites in the State;
(iv) persons who hold a valid licence for
establishment of a granite cutting and polishing
unit within the State for the purpose of hundred
per cent export and persons who hold a
permanent Registration Certificate for
establishment of a Small-scale Industrial Unit in
the State;
(v) xxxxx ;]
(vi) a Society registered under the Karnataka Co-
operative Societies Act, 1959, and the members
of which belong to economically weaker
sections of the Society and who are also stone
quarry workers by tradition;
(vii) all others.
[(1.A). Notwithstanding anything
contained in sub-rule (1) except clause (i) of
sub-rule (1), if any individual or societies of the
Scheduled Castes and Scheduled Tribes has
applied over the same area, the preference shall
be given to the extent of fifteen per cent of
quarrying leases to the Scheduled Castes and
three per cent of quarrying leases to the
Scheduled Tribes. For this purpose, a roaster of
thirty-three grants for one Cycle shall be taken
into consideration, where Nos.1, 7, 14, 21 and
27 are reserved for Scheduled Castes and No.2
is reserved for Scheduled Tribes and remaining
shall be to other than Scheduled Castes and
Scheduled Tribes.]
(2) In case applicants falling under
clause (iv) of this Rule 12 who require specified
minor mineral for their proposed industry they
shall set up industry in accordance with their
industrial programme within a period of twenty-
four months from the date of execution of lease
deed and shall keep the Director informed of the
progress made every six months from the date
of execution of lease deed. On setting up of
industry the lessees shall inform the fact in
writing to the Director failing which the lease
shall be deemed to have been terminated on the
expiry of the said period of twenty-four months.
Where the lessees are unable to set up industry
within the said period for reasons beyond their
control they may submit before the expiry of the
said period an application to the Director
explaining the reasons for the same together
with affidavits. The Director shall forward such
applications to the State Government and it may
on being satisfied that such failure in setting up
the industry was due to reasons beyond the
control of the lessee, extend the period of such
lease by one more year either prospectively or
retrospectively."
(emphasis added)
14. In paragraph 41 of the impugned order, it is observed that
Rule 12 was not applicable as it was not in existence on 12th
August 2016. The impugned order completely overlooks clause
(e) of Sub-Rule (2) of Rule 8B. The said finding recorded about
the non-applicability of Rule 12 is completely erroneous and
contrary to clause (e) which requires the applications to be
decided as per the provisions of the said Rules as prevailing
before 2016 amendment came into force on 12th August 2016.
Hence, priority under Rule 12 ought to have been considered in
case of all applications covered by clause (d) of Sub-Rule (2) of
Rule 8B. In paragraph No.24 of the impugned order,
submissions of the department of Mines and Geology have been
recorded in which it is mentioned that the petitioner in Writ
Petition No.30397/2018 falls in priority covered by Clause (ii) of
Sub-Rule (1) of Rule 12 and the petitioner in Writ Petition
No.30399/2018 falls in priority under Sub Rule (1-A) of Rule 12.
According to the stand of the Director of the department of Mines
and Geology, as noted in paragraph 24 of the impugned order,
M/s. Fair Deal Stones is covered by clause (iii) of Sub Rule (1) of
Rule 12. The stand of M/s. Fair Deal Stones is that it is falling in
the category covered by clause (ii) of Sub Rule (1) of Rule 12.
There is no adjudication made on this factual dispute in the
impugned order. As No Objection Certificate and Joint
Inspection Report are in respect of the applications made by the
nine applicants, in view of Clause (e) of Sub Rule (2) of Rule 8-
B, the cases of these parties will have to be considered as on
12th August 2016, according to the priorities provided in Rule 12.
If there are any of disqualifications attached to any of these
applicants, the same will have to be considered by the State
Government. The factual inquiries as above cannot be
appropriately made in writ jurisdiction and hence, the said
exercise will have to be undertaken by the State Government.
15. We may note here that in the impugned order, it is
mentioned that the applications made by petitioners in these two
petitions were filed subsequent to the application made by M/s.
Fair Deal Stones. However, any Rule in existence prior to 12th
August, 2016 which provided for giving priority as per seniority of
the applications is neither referred in the impugned order nor is
brought to the notice of this Court. In paragraph No.41 of the
impugned order, it is mentioned that the application of M/s. Fair
Deal Stones fulfills all the requirements of Clause (d) of Sub
Rule (2) of Rule 8-B and therefore, the said company was
eligible on the relevant date i.e., 12th August 2016. Further, it is
stated in paragraph 41 that the other applications are
overlapping and since, the application of M/s. Fair Deal Stones
must be given priority, the other applications cannot be
considered.
16. Therefore, the approach of the State Government in the
impugned order is erroneous. Hence, by setting aside the
impugned order, the applications will have to be ordered to be
considered afresh. Except for the present petitioners, no other
applicants have challenged the impugned order. However, in
view of the legal position, all the applications will have to be
considered afresh unless some of the applicants do not want to
press their applications.
17. Accordingly, we pass the following:
ORDER
(i) The impugned order dated 20th June 2018
(Annexure-A) is hereby set aside;
(ii) The case of all the applicants covered by said
order (except M/s. Samrat Minerals) shall be
considered afresh by the State Government in
accordance with law and in the light of what is
held in this Judgment. Needless to add that
notice shall be issued to all the applicants
(except M/s. Samrat Minerals) and opportunity
of being heard shall be granted to all the
concerned parties;
(iii) A fresh order shall be passed by the State
Government as expeditiously as possible and in
any event on or before the end of September
2021;
(iv) Except the legal issues which are decided by
this Judgment, all other issues are left open for
the decision of the State Government.
(v) The petitions are partly allowed on above terms
with no order as to costs.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Mr
