Karnataka High Court

Syed Ataullaha vs The State Of Karnataka on 11 February, 2022

Bench: Chief Justice, Suraj Govindaraj

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 11TH 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.2033 OF 2020 (GM-MMS)

BETWEEN:

SYED ATAULLAHA
S/O LATE SYED M.D. HANEEF SA
AGED ABOUT 49 YEARS
OCC-BUSINESS, R/AT 5TH WARD
MUSLIM KERI, UCCHANGIDURGA
HARAPPANAHALLI TQ.,
BALLARI DISTRICT-583125
                                         ...PETITIONER
(BY SRI. NATARAJ.G, ADVOCATE)

AND:

1. THE STATE OF KARNATAKA
   REP BY ITS SECRETARY (MINES)
   DEPARTMENT OF COMMERCE & INDUSTRIES
   VIKAS SOUDHA, 1ST FLOOR
   BANGALORE-560001

2. THE DIRECTOR
   DEPARTMENT OF MINES AND GEOLOGY
   KHANIJA BHAVAN, RACE COURSE ROAD
   BANGALORE-560001

3. THE SENIOR GEOLOGIST
   OFFICE OF THE SENIOR GEOLOGIST
   DEPARTMENT OF MINES AND GEOLOGY
   DAVANAGERE-577005
                                      .. RESPONDENTS
(BY SRI. S.S. MAHENDRA, AGA)
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      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
A WRIT OF CERTIORARI OR SUCH OTHER APPROPRIATE WRIT,
QUASHING THE IMPUGNED ENDORSEMENT DATED 16.11.2016
VIDE ANNEXURE-D ISSUED BY THE R-3 AND ETC.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:

                             ORDER

1. Heard.

2. The Writ Petition has been filed seeking the

following reliefs:

i. Issue a writ of certiorari or such other appropriate writ, quashing the impugned endorsement bearing No.GaBhoE/HiBhuVi/ Davanagere/Ka.Ga.Gu/2016-17/2105-06 dated 16.11.2016 vide Annexure-D issued by the 3rd respondent, in the interest of equity and justice.

ii. Declare that, the views, opinions and reports are deemed to have been received under Rule 8(5) and (6) of KMMCR, 1994 in the interest of justice and equity.

iii. Issue a writ of mandamus, directing the respondents to accord sanction for grant of the Quarrying lease in favour of the Petitioner in the interest of justice.

     iv.     Issue such other order or direction as deemed
            fit  and    proper   under    the    facts and

circumstances of the case, in the interest of equity and justice.

3. Learned Additional Government Advocate

appearing for the respondents on the basis of the

instructions submits that the application of the

petitioner was not a saved application and as such,

the benefit of the judgment and order dated

16.08.2019 passed in W.P.No.10601/2019 could not

be extended to the petitioner.

4. The learned counsel for the petitioner has not

been able to satisfy the Court that he is entitled to get

the benefit of the judgment of this Court in

W.P.No.10601/2019 [K.Thirumalesh vs. State of

Karnataka & Ors (2019) SCC Online Kar 1542],

more particularly, Paras 47 to 49 thereof, which are

extracted hereunder for easy reference:

"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 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 3 (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. The learned counsel for the petitioner has also

not been able to show that there was any No

Objection Certificates and Joint Inspection Report,

which has been received prior to 12.08.2016.

6. The Writ Petition being devoid of merits is

dismissed.

Sd/-

CHIEF JUSTICE

Sd/-