Mrs Nirmala S Acharya vs State Of Karnataka
2022 Latest Caselaw 12316 Kant

                            1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF OCTOBER, 2022

                       PRESENT

             THE HON'BLE MR. ALOK ARADHE
                 ACTING CHIEF JUSTICE

                           AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

            W.P.No.21857/2015(GM-MM-S)

BETWEEN:

MRS. NIRMALA S ACHARYA
W/O SRI K.S. ACHARYA
AGED ABOUT 66 YEARS
RESIDING AT NO.P & E 207
MSH APARTMENT
CHIKKALLASANDRA
BSK 3RD STAGE
BANGALORE - 560 061.                  ...PETITIONER

(BY SRI L.M. CHIDANANDAYYA, ADV.)

AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY ITS SECRETARY
       INDUSTIES & COMMERCE
       (SSI, TEXTILES & MINES)
       VIKASA SOUDHA
       BANGALORE - 560 001.

2.     DIRECTOR OF MINES AND
       GEOLOGY, KHANIJA BHAVAN
       RACE COURSE ROAD
       BANGALORE - 560 009.

3.     DEPUTY DIRECTOR
       DEPT. OF MINES & GEOLOGY
                               2

      RAMANAGARAM DISTRICT
      RAMANAGARAM - 562 159.                ...RESPONDENTS

(BY SRI S.S. MAHENDRA, AGA FOR R-1 TO R-3)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DT.5.9.2007, PASSED BY THE R-2 VIDE
ANNX-A CONFIRMED BY THE R-1 IN R.P.NO.CI 92 MMM 2012
VIDE ANNX-B ORDER DT.28.3.2015.

    THIS PETITION COMING ON FOR HEARING THIS DAY,
VISHWAJITH SHETTY J., MADE THE FOLLOWING:

                         ORDER

The petitioner who was granted a quarrying lease

in Sy. No.49 of Hosadurga village, Kanakapura Taluk,

Bengaluru Rural District, has approached this Court in

this writ petition seeking for the following reliefs:

"a) CALL for records which ultimately resulted in passing order impugned ANNEXURE-A and ANNEXURE-B:

b) ISSUE an order, direction or writ in the nature of Certiorari quashing the order dated 5.9.2007, passed by the 2nd respondent vide ANNEXURE-A bearing No.DMG/QLR/3178/95-96 / WRONG / ILLEGAL / 2007 / 7238, confirmed by the 1st Respondent in Revision Petition No.CI 92 MMM 2012 vide ANNEXURE-B order dated 28.03.2015.

c) DECLARE the claim of the Dead Rent from the Petitioner when the Petitioner was not permitted to carry on Quarrying operation is unauthorized, illegal and without the authority of law on account

of stoppage of Quarrying Operations; OR IN THE ALTERANATE:

d) ISSUE an order, Direction a writ in the nature of Mandamus directing the Respondent to waive the claim of dead rent as the petitioner was prevented by the Forest Department on the ground that the Quarry Lease of the Petitioner was a forest land.

e) ISSUE an order, direction or writ in the nature of Mandamus, directing the respondents to refund the Security Deposit of Rs.6,97,000/- together with interest at the rate of 24% from the date of the deposit taken from the Petitioner;

f) ISSUE such other relief/s which this Hon'ble Court may deem fit in the facts and circumstances of the case, including the cost of the Petitioner."

2. Heard the learned Counsel for the parties and

also perused the material on record.

3. Brief facts of the case as revealed from the

records are, the petitioner was granted a quarry lease in

the aforesaid land bearing Sy. No.49 for a period of 10

years with effect from 01.08.1981. The said lease had

expired on 31.07.1991. On the allegation that the forest

officials had interfered with the quarrying activities of the

petitioner, she had filed W.P.No.5665/1984 before this

Court, which was allowed by this Court on 15.04.1991

restraining the respondents not to interfere with the

quarrying activities of the petitioner. Petitioner's lease

was subsequently renewed and a lease deed dated

26.07.1996 was executed which was registered on

01.08.1996. On 28.01.1997, the registered lease deed

was cancelled by the Director of Mines & Geology on the

ground that it is a forest land. Petitioner, therefore, had

requested the Director of Mines & Geology, to refund the

security deposit and waive of the dead rent. The said

representation was forwarded to the Senior Geologist

who issued a demand on 21.08.1997 for payment of

dead rent for the period from 1991 to 1997. This demand

notice was challenged in W.P.No.2050/2001 by the

petitioner and this Court had disposed of the said writ

petition with an observation that the demand notice shall

be treated as a show cause notice and the petitioner was

given opportunity to file a reply to the same and the

competent authority was directed to pass fresh orders

thereafter. Accordingly, a fresh demand was issued on

05.09.2007 and this order was questioned by the

petitioner before this Court in W.P.No.41296/2011, which

was disposed of directing the petitioner to avail the

alternative remedy of revision. The revision filed by the

petitioner was dismissed on 28.03.2015 and challenging

the order dated 05.09.2007 and the order dated

28.03.2015, the petitioner is before this Court in this writ

petition.

4. Learned Counsel for the petitioner submits that

the lease of the petitioner had expired on 31.07.1991,

and thereafter, the petitioner has not carried on any

quarrying activities in the lease area, and therefore, the

respondents were not justified in raising the demand for

payment of dead rent. He submits that the petitioner was

prevented by the respondents from carrying out

quarrying activities and they had not renewed the lease

deed, and therefore, no demand for payment of dead

rent can be made against the petitioner. In support of his

arguments, he has relied upon the order passed by this

Court in W.P.No.38462/1989 (M/s. Jyothi Brothers Vs

Director of Mines & Geology & Others) disposed of on

20.07.1990 (Annexure-T) and the order passed in

W.P.No.45339/2011 (M/s.Sapthagiri Granites Vs State of

Karnataka & others) dated 16.02.2012 (Annexure-U).

5. Per contra, learned Additional Government

Advocate submits that the petitioner was throughout in

possession of the lease area and the material on record

would also go to show that she was carrying quarrying

activities in the same. He submits that the petitioner was

issued with a permit for transporting the mineral in the

year 1993 which would go to show that the petitioner

was carrying on quarrying activities in the lease area,

and therefore, there is no substance in the contention

urged on behalf of the petitioner that she was prevented

from carrying on quarrying activities in the lease area.

6. The undisputed facts of the case are, the

petitioner was granted quarrying lease in the land

bearing Sy. No.49 initially for a period of 10 years with

effect from 01.08.1981, and thereafter, the same was

renewed retrospectively under the lease deed dated

26.07.1996 with effect from 01.08.1991. The demand for

payment of dead rent is made for the period from

01.08.1991 to 28.01.1997, the date on which the quarry

lease was cancelled and the petitioner was directed to

stop the work.

7. The material on record would go to show that

after the expiry of first lease on 31.07.1991, the

petitioner was issued with a permit for transporting the

mineral in the year 1993. The minerals which were being

transported by the petitioner on the basis of the said

permit were seized by the Forest Department and a

criminal case was registered against the petitioner for

illegally transporting the minerals. Petitioner had filed a

discharge application in the said criminal case before the

jurisdictional Magistrate contending that the petitioner's

lease was retrospectively renewed by the State

Government with effect from 01.08.1991, and therefore,

she was transporting the mineral legally under valid

permit. The said contention of the petitioner was

accepted by the learned Magistrate and the petitioner

was discharged in the criminal case and the forest

officials were directed to release the seized mineral to the

custody of the petitioner.

8. The petitioner who has contended before the

learned Magistrate in a criminal case registered against

her that she was transporting the mineral legally and her

quarry lease was renewed retrospectively with effect

from 01.08.1991, cannot be heard to say before this

Court that her quarry lease was renewed only on

26.07.1996 and for the period from 01.08.1991 till

26.07.1996, she had not carried on any quarrying

activities in the lease area nor did she hold any valid

lease deed in her name during the said period.

9. Further, in the year 1993, the petitioner had also

filed a contempt petition before this Court in

CCC.No.510/1993 which was disposed of on 27.08.1993

and in the said case, the petitioner alleged that the

respondents therein had interfered with the rights of the

petitioner quarrying the lease area in terms of the lease

deed dated 01.08.1981 and thereby violated the order

passed by this Court in W.P.No.5665/1984 disposed of on

15.04.1991.

10. In M/s. Jyothi Brothers case

(W.P.No.38462/1989), the learned Single Judge of this

Court having observed that the petitioner therein had

actually not carried on the mining operation in the lease

area, has held that the authorities were not justified in

demanding the dead rent from the petitioner. In M/s.

Sapthagiri Granites case (W.P.No.45339/2011), a

coordinate bench of this Court having found that there

was sufficient reason to come to the conclusion that the

petitioner therein was precluded or obstructed from

exploiting the lease due to reasons extraordinary to it

viz., Forest Department, and other concerned State

authorities, had directed the respondents not to make

any claim towards dead rent.

11. The aforesaid judgments would not be

applicable to the facts of this case, as prima facie the

material on record would go to show that the petitioner

was carrying on quarrying activities in the lease area and

she was throughout in possession of the lease area even

after the expiry of the first lease till the renewed quarry

lease was cancelled in the year 1997.

12. Further, the petitioner has failed to point out

any material to show that the petitioner was prevented

by the respondents from carrying on quarrying activities

in the lease area after the expiry of first lease, though

the petitioner was holding on to the lease area even after

the expiry of first lease till the same was renewed in the

year 1996. Under the circumstances, we do not find any

merit in this writ petition and accordingly, the same is

dismissed.

Sd/-

ACTING CHIEF JUSTICE

Sd/-

JUDGE

KK