Poovappa Poojary vs Karnataka State Minerals ...
2022 Latest Caselaw 2065 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU       ®
     DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                       PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                         AND

     THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

     WRIT PETITION NO.5031 OF 2021 (GM-MMS)

BETWEEN:

1.   POOVAPPA POOJARY
     S/O SANKAPPA POOJARY
     AGED ABOUT 55 YEARS
     R/AT 2-389, KODAMAJE
     AJILAMOGARU POST, BANTWAL TALUK
     SARAPADY, D.K-574211

2.   VINAYAKA
     S/O LATE SHIVARAMA
     AGED ABOUT 54 YEARS
     R/AT NO.1-2-27-2256/4
     SRI RAMA, SHEKAR COMPOUND
     RAMAKIRODIAN ROAD
     MANGALORE, ASHOKANAGAR
     D K-575006

3.   I.M. HAMZA
     S/O A.G. ISMAIL
     AGED ABOUT 37 YEARS
     R/AT NO.1-399
     NEAR GOVERNMENT SCHOOL
     ADDUR, D.K-574145

4.   MOHAMMED ISMAIL
     S/O MOHAMMAD
     AGED ABOUT 35 YEARS
     R/AT NO.1-304/3
     PANOLIPADI HOUSE, GANDHADI
     ADDOOR VILLAGE AND POST
     MANGALORE, D K -574145
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5.   MOHAMMED RAFIQ
     S/O G.P. ABUBAKER
     AGED ABOUT 44 YEARS
     R/AT NO.1-40, MANNAGUDDA HOUSE
     ADDOOR VILLAGE AND POST
     MANGALORE, D K -574145
                                          ...PETITIONERS
(BY SRI. SACHIN.B.S, ADVOCATE)

AND:

1.   KARNATAKA STATE MINERALS
     CORPORATION LTD.
     REGISTERED OFFICE TTMC
     A BLOCK, 5TH FLOOR
     BMTC BUILDING, K.H. ROAD
     SHANTHINAGAR, BANGALORE-560027
     REPRESENTED BY ITS
     GENERAL MANAGER (SAND)

2.   DEPUTY COMMISSIONER
     MANGALORE, D.K DISTRICT-575001

3.   DEPUTY DIRECTOR
     DEPARTMENT OF MINES AND GEOLOGY
     JUGAL TOWER, MALLIKATTE
     MANGALORE, D.K DISTRICT-575 001
                                         ... RESPONDENTS
(BY SRI. D.L.N. RAO, SENIOR ADVOCATE FOR
    SRI. H.N. NARENDRA DEV, ADVOCATE FOR R1;
    SRI. S.S MAHENDRA, AGA FOR R2 & R3)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT
OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER
TO QUASH THE IMPUGNED E-TENDER INVITATIONS DATED
07.11.2020        IN        NO.863/KSMCL/DESILTING/SAND
/SHAMBURU/2020-21/1827 AND DATED 07.12.2020 IN NO.
864/KSMCL/DESILTING/SAND/ADHYPADI/2020-21/1840, AS PER
ANNEXURES-A AND B AND ETC.

     THIS PETITION COMING ON FOR PRELIMINARY HEARING
THROUGH         PHYSICAL HEARING THIS DAY, SURAJ
GOVINDARAJ J MADE THE FOLLOWING:
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                                 ORDER

1. The petitioners are before this Court seeking for the

following reliefs:

i. Issue writ of certiorari or any other appropriate writ or order to quash the impugned E-tender invitations dated 07.11.2020 in No.863/KSMCL/Desilting/Sand/Shamburu/2020-

21/1827 and dated 07.12.2020 in No.864/KSMCL/Desilting/Sand/Adhypadi/2020- 21/1840, as per ANNEXURES-A AND B.

ii. Issue any other writ or order or direction that deems fit to grants in the circumstances of the case in the interest of justice and equity.

2. Sri.Sachin. B.S, learned counsel for the petitioners,

would submit that

2.1. The petitioners belong to traditional sand

extracting communities holding temporary

permits to extract the sand in various sand

blocks situated in Dakshina Kannada District

and their livelihood depends on extracting of

sand.

2.2. They are aggrieved by the E-tender notification

issued by respondent No.1 for the purpose of

dredging/desilting in Adyapady dam and

Shamburu Dam submergence area for the

reason that under the said e-tender notification,

the successful contractor would be permitted to

engage machinery and vehicles for the

purposes of extracting sand.

2.3. This is not permissible as per the amended

provisions of the Karnataka Minor Mineral

Concession Rules, 1994 ('Rules' for short).

2.4. Amended Rule 31R of the Rules came into force

on 5.05.2020, in terms of Rule 31R(5) there is

a prohibition of use of machinery for sand

quarrying, use of mechanised boats in river

sand quarrying is prohibited.

2.5. No tender, let alone E-tender could have been

issued by respondent No.1 inviting tender for

desilting of the dams area by usage of such

machinery.

2.6. The term desilting of sand is a misnomer

inasmuch the same is quarrying of sand though

termed as desilting.

2.7. In terms of Rule 31ZB of the Rules, the sand

blocks which are available in 4, 5 and higher

order streams through tender-cum-auction in

Non-CRZ of coastal district are required to be

allotted by tender-cum-auction proceedings

only amongst the traditional sand extracting

community like the petitioners, the tender now

issued not being for the traditional sand

extracting community is in violation of Rule

31ZB of the Rules.

2.8. In terms of Rule 31ZB, use of motor boats and

dredger for removal of sand is prohibited.

2.9. On these grounds he submits that the relief as

sought for be granted and E-tender notification

be quashed by allowing the Writ Petition.

3. Sri.S.S.Mahendra, learned Additional Government

Advocate would submit that

3.1. what is being tendered is not sand block for the

purpose of quarrying, but the work envisages

desilting of two dams, viz., Adyapady dam

where it is found through analysis sand deposit

of 2000 mtrs in length, 100 mtrs in width with

one mtr depth, totalling to 3.44 lakhs Metric ton

and Shamburu dam where it is found through

analysis sand deposit is on 2800 mtrs in length,

230 mtrs in width with one mtr depth, totalling

to 11,07,680 Metric ton.

3.2. Gathering of silt, he submits has reduced the

water holding capacity of the said dams

requiring desilting. The collection of water has

been considerably reduced affecting supply of

drinking water as also for irrigation, as such,

faster method of desilting is required to be

resorted to by usage of machinery.

3.3. This desilting is not quarrying in the strict sense

of usage of the term since there are no

identified sand block and as such, the

restriction either under amended Rule 31R or

31ZB of the Rules would not be applicable to

the present matter.

4. Sri.D.L.N.Rao, learned Senior counsel for respondent

No.1 would also reiterate the submissions made by

Sri.S.S.Mahendra, learned AGA and he would further

submit that

4.1. Respondent No.1 is a Corporation established

by the State. There is no private interest which

is involved. The work which has been sought to

be awarded is dredging and desilting of dams

which would require usage of machinery and

such work cannot be done by without

machinery, let alone by usage of traditional

methods.

4.2. In this background, he also relies upon the

decision of a Coordinate Bench of this Court in

W.P.No.24904/2019 dated 25.06.2019 and

submits that this Court while considering the

effect of unamended Rule 31R and 31ZB(A) of

the Rules has held that the tender for desilting

is different from a tender for quarrying. The

tender in respect of dredging/desilting of

submergence of vented dam cannot be equated

to quarrying of a sand block and as such,

relying on the said Judgment, the present

situation also being related to desilting of

submergence area of vented dam, the said Rule

31ZB(A) and/or Rule 31R of the Rules would

not be applicable.

5. Heard Sri.Sachin.B.S, learned counsel for the

petitioners, Sri.D.L.N.Rao, learned Senior counsel for

Sri.H.N.Narendra Dev, learned for respondent No.1 and

Sri.S.S.Mahendra, learned Additional Government

Advocate for respondents No.2 and 3.

6. The short question that would arise for our

consideration is, Whether a tender for

dredging/desilting of submergence area of a dam

would amount to sand quarrying necessitating the

imposition of the restriction under Rule 31R or Rule

31ZB of the Karnataka Minor Mineral Concession Rules,

1994?

7. As referred to above, while dealing with the

contentions of the respective counsels, it is clear and

admitted that the tender invitation is for dredging and

desilting of the reservoir area of a dam. There is no

sand block which has been identified or mentioned in

the tender notification. The dredging and desilting of

the dams have arisen on account of gathering of silt in

the reservoir area of the dam, thereby reducing the

carrying capacity of dam, as such, after analysis it has

been ascertained that there is a fixed area which has

gathered silt, the quantity has also been ascertained

and identified by experts dealing with the same.

8. It is on that basis, the quantified sand and the location

thereof with longitude and latitude has been described

in the heading location in the E-tender.

9. Both Sri.S.S.Mahendra, learned AGA and

Sri.D.L.N.Rao, learned Senior counsel have submitted

that the E-tender is restricted to such area and the

quantified sand mentioned therein and does not extend

to river area or to any sand block. Their submission

that the contractor would not be permitted to extract

sand beyond the identified area is placed on record.

10. In the above circumstances, when there is no sand

block which would be involved in the dredging/desilting

of silt in the reservoir area, in our considered opinion

the same would not amount to quarrying activity in a

river area or in a sand block identified for that purpose.

In such circumstances, when the work cannot be said

to be quarrying, the restriction which has been

imposed under Rule 31R or 31ZB of the Rules would

not apply to the work contemplated under the E-tender

which has been challenged in these proceedings.

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11. In view of the above, there is no right which can be

said to be vested in the petitioners under Rules 31ZB

of the Rules nor can it said to be in violation of Rule

31R of the Rules, as contended by the learned counsel

for the petitioners. It was always open for the

petitioners to have participated in the E-tender

proceedings.

12. We are therefore of the opinion that a tender for

dredging/desilting of submergence area of a dam

would not amount to sand quarrying necessitating the

imposition of the restriction under Rule 31R or Rule

31ZB of the Karnataka Minor Mineral Concession Rules,

1994.

13. In view of the above, we do not find any merit in the

petition as filed. The petition stands dismissed.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE ln