J Naveen Kumar vs The Secretary
2022 Latest Caselaw 340 Kant

                         -1-


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 10TH DAY OF JANUARY, 2022

                      PRESENT

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

                        AND

     THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

     WRIT PETITION NO.8699 OF 2021 (GM-MM-S)

BETWEEN:

J.NAVEEN KUMAR
AGED 36 YEARS
S/O JAYARAMAREDDY
R/O NO.30, THANDRANAMARADAHALLI
PATRENAHALLI POST
CHIKKABALLAPURA-562101.
                                      ... PETITIONER

(BY SRI K.B.SHIVAKUMAR, ADVOCATE)

AND:

1.     THE SECRETARY
       (MSME AND MINES)
       COMMERCE AND INDUSTRIES DEPARTMENT
       VIKASA SOUDHA
       BENGALURU-560001.

2.     THE SENIOR GEOLOGIST
       DEPARTMENT OF MINES AND GEOLOGY
       MINERALS DIVISION
       CHIKKABALLAPURA-562 101.

3.     THE ASSISTANT COMMISSIONER
       CHIKKABALLAPURA SUB-DIVISION
       CHIKKABALLAPURA-562105.
                             -2-


4.    THE TAHASILDAR
      GUDIBANDE TALUK-561209
      CHIKKABALLAPURA DISTRICT.

5.    THE DEPUTY CONSERVATOR OF FOREST
      TERRITORIAL CHIKKABALLAPURA
      CHIKKABALLAPURA DISTRICT
      CHIKKABALLAPURA-562105
                                   ... RESPONDENTS

(BY SRI S.S.MAHENDRA, AGA)
                        ---

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH ANNEXURE-J PASSED BY THE R2 AND DIRECT THE
R2 TO ISSUE CONDITIONAL GRANT IN PURSUANCE OF THE
APPLICATION   DATED    31.12.2011   PRODUCED     AT
ANNEXURE-A, IN VIEW OF THE RECEIPT OF THE NO
OBJECTION CERTIFICATES WITHIN 12.08.2016 AND ETC.

     THIS PETITION COMING ON FOR PRELIMINARY
HEARING THROUGH VIDEO CONFERENCING THIS DAY,
SURAJ GOVINDARAJ J. MADE THE FOLLOWING:

                          ORDER

Learned Additional Government Advocate accepts

notice for respondent Nos.1 to 5.

2. The petitioner is before this Court seeking for

the following reliefs:

"i) Issue a Writ of Certiorari quashing Annexure-J in No.GaBhuE/HiBhuChi/KaGagu/2017- 18/4660-4661 dated 27.10.2017 passed by the 2nd Respondent, in the interest of the equity and justice.

ii) Issue a Writ of Mandamus directing the 2nd Respondent to issue Conditional Grant in pursuance of the application dated 31.12.2011 produced at

Annexure-A, in view of the receipt of the No Objection Certificates within 12.08.2016, in the interest of equity and justice.

iii) Issue such other Writ or order as deemed fit and proper under the facts and circumstances of the case, in the interest of equity and justice."

3. The grievance of the petitioner is that his

application for grant of quarrying lease has been rejected

vide endorsement dated 27.10.2017 at Annexure-J on the

ground that the land under survey number for which the

lease was sought for is a deemed forest.

4. Sri K.B.Shiva Kumar, learned counsel appearing

for the petitioner, by relying on the decision of the Co-

ordinate Bench of this Court dated 12.06.2019 in

W.P.No.54476/2016 and connected matter [Dhananjay

vs. State of Karnataka and ors.], submits that there is

no concept of deemed forest and as such, the respondents

could not have rejected the application filed by the

petitioner. He also relied on the decision of the

Co-ordinate Bench of this Court dated 16.08.2019 in

W.P.No.10601 of 2019 and other connected matters

[K.Thirumalesh v. State of Karnataka and ors.] and

submits that the application of the petitioner is a saved

application and as such, the same ought to have been

considered in terms of sub-rule (2) of Rule 8-B of the

Karnataka Minor Mineral Concession Rules, 1994.

5. Learned Additional Government Advocate would

submit that the land of the petitioner for which the licence

is sought for is situated within two kilometers from the

Reserve Forest area and as such, the State is proposing to

notify the same as Reserve Forest and therefore, the

Authority has rightly rejected the application.

6. The aforesaid submission of the learned

Additional Government Advocate has already been

considered by the Co-ordinate Bench of this Court in

W.P.No.54476/2016 and connected matter [Dhananjay

vs. State of Karnataka and ors.] more particularly, in

paragraph 15 thereof and necessary directions have been

issued in paragraph 19 thereof. Paragraphs 15 and 19 are

reproduced hereunder:

"15. Thus, while issuing the endorsements impugned in both the petitions, the concerned officers have denied the relief claimed by the petitioners on the ground that the said lands are deemed forests. Whenever applications for grant of quarrying lease or renewal of quarrying lease are made, it is the duty of the licensing authority to ascertain whether the land is covered by the concept of "forest" or "forest land" evolved by the Apex court by the order dated 12th December 1996. The enquiry by the licensing authority into

this aspect is necessary in as much as if the land is a part of "forest" or "forest land" as contemplated by the Apex Court, quarrying lease or permission for quarrying cannot be granted unless the consent of the Government of India is obtained as per Section 2 of the Forest Act. No such inquiry has been made by the concerned authority. Therefore, for the aforesaid reasons, the impugned orders are liable to be set aside by directing reconsideration of the applications made by the petitioners in the light of what is held in this Judgment and Order.

19. Accordingly, we dispose of the petitions by passing the following order:

(i) The impugned order in both the petitions are hereby quashed and set aside and the applications made by the petitioners for grant of the quarrying licence/lease or the renewal thereof, as the case may be, shall be decided afresh by the concerned competent authority in the light of what is held in the judgment and order. Appropriate decision shall be taken within a period of two months from the date on which a copy of this order is provided to the concerned authority. We make it clear that while considering the applications afresh, the concerned authority will have to consider whether the subject lands are "forest" or "forest land" as laid down in the decision of the Apex Court in GODAVARMAN (supra).

(ii) Needless to add that the if the authority concerned finds that the land is a "forest" or a "forest land", lease or extension of lease cannot be granted unless the consent of the Central Government is obtained as per section 2 of the Forest Act.

(iii) We also make it clear that we have made no adjudication about the applicability of the said Rules as amended with effect from 12th August 2016 and all the issues are left out to be decided by the concerned authority.

(iv) The petitions are allowed in the above terms with no order as to costs."

7. We are of the opinion that the said directions of

the Co-ordinate Bench is equally applicable to the present

case. As regards saved application, the direction at

paragraph 47 of the decision of the Co-ordinate Bench

passed in W.P.No.10601 of 2019 and other connected

matters is also applicable to the present case which is also

reproduced hereunder:

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

(a) Rule 8-B of the said Rules, as amended th on 12 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."

8. Accordingly, the petition is allowed in terms of

the directions contained in paragraph 19 of

W.P.No.54476/2016 and paragraph 47 of

W.P.No.10601/2019. The endorsement dated 27.10.2017

issued by respondent No.2 at Annexure-J is hereby

quashed. The respondents are directed to comply with the

aforesaid directions.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

VM