Oriental Select Granites Pvt Ltd vs State Of Karnataka
2023 Latest Caselaw 1698 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 3RD DAY OF MARCH, 2023

                      PRESENT

THE HON'BLE MR. PRASANNA B. VARALE, CHIEF JUSTICE

                         AND

        THE HON'BLE MR. JUSTICE ASHOK S. KINAGI


       WRIT PETITION NO.10123 OF 2022 (GM-MMS)

BETWEEN:

ORIENTAL SELECT GRANITES PVT. LTD.,
NO. 36/18, 9TH MAIN ROAD,
RAJMAHAL VILAS EXTENSION,
BANGALORE-560 081,
REPRESENTED BY S. NAGARAJU.
                                         ...PETITIONER
(BY SRI.D.L.N. RAO, SR. ADVOCATE FOR
    SRI. ANIRUDH ANAND, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY ITS SECRETARY,
       DEPARTMENT OF COMMERCE AND INDUSTRIES,
       VIKASA SOUDHA, DR. AMBEDKAR VEEDHI,
       BANGALORE-560 001.

2.     DEPARTMENT OF MINES AND GEOLOGY
       REPRESENTED BY ITS DIRECTOR,
       KHANIJA BHAVAN, RACE COURSE ROAD,
       BANGALORE-560 001.
                                       ....RESPONDENTS
(BY SRI. S.S. MAHENDRA, AGA)
                                                  W.P.No.10123/2022

                             2



     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT OF MANDAMUS DIRECTING THE RESPONDENT
AUTHORITIES TO EXTEND THE QUARRYING LEASE OF THE
PETITIONER BEARING QL No-288 OVER AN EXTENT OF 34
GUNTAS    IN  Sy.   No-184   OF  JOTHIGONDANAPURA,
CHAMARAJANAGAR TALUK, CHAMARAJANAGAR UP TO 2029
AS PER RULE 8A(2) OF THE KARNATAKA MINOR MINERAL
CONCESSION (AMENDMENT) RULES, 2016 AND ETC.

     THIS APPEAL, HAVING BEEN HEARD AND RESERVED
FOR   ORDERS   ON   15.02.2023, COMING  ON   FOR
PRONOUNCEMENT, THIS DAY, ASHOK S KINAGI J., MADE
THE FOLLOWING:

                         ORDER

This writ petition is filed seeking for the following prayers:

"1) Issue a writ of mandamus directing the respondent Authorities to extend the quarrying lease of the petitioner bearing QL.No.288 over an extent of 34 guntas in Sy.No.184 of Jothigondanapura, Chamarajanagar Taluk, Chamarajanagar up to 2029 as per Rule 8A(2) of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016, in the interest of justice and equity;

or

2) Issue a writ in the nature of mandamus directing the respondent Authorities to renew the quarrying lease of the petitioner bearing QL No.288 over an extent of 34 guntas in Sy.No.184 of Jothigondanapura, Chamarajanagar Taluk, Chamarajanagar up to 2039 as per Rule 6 of the W.P.No.10123/2022

Granite Conservation and Development Rules, 1999, in the interest of justice and equity"

2. The petitioner - Company has been operating

the quarry from 1978 under three different quarrying

lease to an extent of 34 guntas in Sy.No.184 of

Jothigondanapura, Chamarajanagar Taluk, Mysuru

District with a long term vision and strategy as well as

with the objective of conservation of minerals. The

petitioner was granted a fresh lease deed on 16.10.1999,

for a period of ten years in respect of the

abovementioned lease area. Subsequently, the Granite

Conservation and Development Rules, 1999 (for short

'the GCD Rules, 1999') came into force and owing to the

provisions there under, the said quarrying lease came to

be extended for a period of twenty years vide lease deed

bearing No.288 dated 05.05.2008 w.e.f. 16.10.1999 for a

further period of twenty years. It is contended that the

petitioner is eligible for a deemed extension under Rule

8A(2) of the Karnataka Minor Mineral Concession

(Amendment) Rules, 2016 (for short 'the KMMC W.P.No.10123/2022

Amended Rules') and subsequently, renewal under Rule 6

of the GCD Rules, 1999. It is contended that the

petitioner has a statutory right for a deemed extension of

their lease for a period of thirty years which is up to 2029

and subsequently under the GCD Rules, 1999 the

petitioner is eligible for renewal of their lease deed for a

further period of twenty years after the lapse of the

original grant. The petitioner made several

representations, the latest one being on 09.12.2021, to

the respondent - Authorities requesting for renewal /

extension of their quarrying lease and the quarrying

lease was not automatically renewed / extended by the

Government. The petitioner aggrieved by the inaction on

the part of the respondent - Authorities have not

considered the several requests of the petitioner and

being denied his lawful right to deemed renewal /

extension, has filed this writ petition.

3. The State filed statement of objections

contending that the writ petition filed by the petitioner is

not maintainable either in law or on facts and the writ W.P.No.10123/2022

petition is liable to be dismissed in limine and denied the

averments made in the writ petition. It is contended that

the petitioner has suppressed all the material facts and

filed a writ petition. The petitioner - Company has not

come to the Court with clean hands and the writ petition

deserves to be dismissed on the ground of suppression of

material facts. It is contended that the petitioner -

Company was granted with quarrying lease bearing

Q.L.No.2096 dated 24.08.1978 for extraction of black

granite, over an extent of 34 guntas in Sy.No.184 of

Jothigondanapura Village, Chamarajanagar Taluk, Mysuru

District for a period of five years. Subsequent thereto,

the petitioner - Company has been conducting quarrying

activities. On 19.01.1991, the petitioner submitted an

application for grant of quarry lease for a period of 10

years. Upon considering the application of the petitioner,

the quarry lease was executed in QL.No.6284 on

26.06.1991 for a period of 10 years. The petitioner -

Company on 24.06.1994, submitted a letter to

respondent No.2 requesting for renewal of quarry lease W.P.No.10123/2022

bearing No.2096 dated 24.08.1978. The petitioner -

Company also filed an application in Form-R for renewal

of quarry lease for a period of 20 years. In pursuance of

the application, a notification dated 25.08.1999, was

issued 'according renewal of quarry lease' to the

petitioner - Company for a period of 10 years. Quarry

lease deed dated 16.10.1999 in QL No.288 was executed

in pursuance of the grant notification bearing No. CI 283

MMN 1999 dated 25.08.1999. As such, by any stretch of

imagination, the lease deed executed in Quarry Lease

No.288 on 16.10.1999 cannot be construed as a fresh

lease. Even admitting for a moment that fresh quarry

lease bearing QL No.6284 was executed on 26.06.1991,

under Rule 8A(2) of the KMMC Rules of 2016, maximum

period for which the lease can be granted is for a period

of 30 years from the date of initial grant. Even in that

event, 30 years from 26.06.1991 would expire on

25.06.2021. As such, the petitioner is not entitled for

any further extension and hence prayed to dismiss the

writ petition.

W.P.No.10123/2022

4. Heard Sri.D.L.N.Rao, learned senior counsel for

the petitioner and Sri.S.S.Mahendra, learned Additional

Government Advocate for the respondents.

5. Learned senior counsel for the petitioner

submits that lease was granted on 24.08.1978, for a

period of 5 years i.e., up to 1983. An application was

filed for extension of quarrying lease on 26.06.1991.

Quarrying lease was executed on 26.06.1991, for a

period of 10 years. He submits that totally 220 quarrying

lease were granted by the Government. Petitioner's

lease was also one among them. He submits that PIL

was filed challenging the grant of 220 quarrying lease

before this Court. This Court set aside 220 quarrying

lease granted in favour of the respective parties. The

order passed in the PIL was challenged before the

Hon'ble Apex Court. The Hon'ble Apex Court dismissed

the Special Leave Petition. After the dismissal of the said

SLP, the petitioner submitted an application for extension

of lease. The said application was considered by the Rule

Committee and lease was granted in favour of the W.P.No.10123/2022

petitioner vide Annexure-C on 25.08.1999, for a period of

10 years w.e.f. 16.10.1999. The lease granted on

25.08.1999, is a fresh lease under the KMMC Rules of

1994. He submits that Rule 58 of the KMMC Rules of

1969, was repealed. Rule 59 is a transitory provision.

He submits that QL No.288 dated 25.08.1999, was

granted for a period of 20 years w.e.f. 16.10.1999. He

further places reliance on Rule 8-A(2) of the KMMC

Amendment Rules of 1994. He submits that the licence

granted to the petitioner will be alive for further 30 years

i.e., up to 15.10.2029, as the mineral in licence is

specified mineral i.e., black granite. He further submits

that representation for renewal of quarry lease for black

granite was submitted on 09.12.2021, vide

Annexure-G. The respondents did not consider the

representation submitted by the petitioner - Company.

He further submits that the grant made in the year 1978

cannot be treated as a valid date as it was granted as per

the earlier rules and rules have undergone changes. The

quarry lease granted on 16.10.1999, is under new Rules W.P.No.10123/2022

of 1994. Hence on these grounds he prays to allow the

writ petition.

6. Per contra, learned Additional Government

Advocate submits that 220 quarry lease were granted in

favour of the respective applicants. The said grant of

220 quarry lease was challenged in the PIL and the writ

petition came to be allowed and all the 220 quarry lease

were quashed, including the lease granted in favour of

the petitioner. The order passed in the PIL was

challenged before the Hon'ble Apex Court and the

Hon'ble Apex Court dismissed the appeal. He submits

that the lease granted on 25.08.1999, vide Annexure-C is

the renewal of quarry lease and not a fresh quarry lease.

He further submits that initially Rule 6 provides for grant

of lease for a period of 20 years, subsequently Rule

8A(2) provides for deemed extension of 30 years. He

submits that the petitioner is not entitled for deemed

extension for 30 years. He further places reliance on

Rule 8A. He further submits that Rule 8A is paramateria

to Section 8A of the Mines & Minerals (Development & W.P.No.10123/2022

Regularization) Act, 1957. In order to buttress his

argument, he has placed reliance on the judgment of the

Hon'ble Apex Court reported in (2016) 11 SCC 455 in the

case of COMMON CAUSE VS. UNION OF INDIA & ORS. He

submits that the Rule Committee approved for renewal of

lease and not grant of fresh lease. He submits that even

assuming but not admitting, lease was granted in the

year 1991, there is a lapse of 30 years and as such the

petitioner is not entitled for any extension. He further

placed reliance on the order passed by this Court in

W.P.No.35586/2019, disposed of on 17.09.2019. Hence

he prays to dismiss the writ petition.

7. Learned senior counsel for the petitioner in reply

to the argument of learned Additional Government

Advocate submits that the submission of learned

Additional Government Advocate that Rule 8A is

paramateria to Section 8A of the Mines & Minerals

(Development & Regularization) Act, 1957, is not correct.

He submits that earlier there was prohibition about black

granite minerals, but subsequently, Rule 69 was W.P.No.10123/2022

amended and fresh lease was granted in favour of the

petitioner. He submits that an application was filed for

grant of fresh lease and not for renewal and the quarry

lease granted in favour of the petitioner is a fresh lease.

Hence, on these grounds he prays to allow the writ

petition.

8. Perused the records and considered the

submissions of the learned counsel for the parties.

9. The question to be considered is, whether the

lease executed on 25.08.1999, was an original lease or

whether it was executed by way of renewal. If it was

executed by way of renewal, Sub-rule (2) of Rule 8A of

the Rules of 1994 will not apply. Annexure-R2 to the

objections filed by the respondent is a copy of application

made by the petitioner in Form-R dated 24.06.1994, for

extension of quarry lease is in respect of the subject

lands. From the perusal of Annexure-R2, the preamble

of the said Form-R indicates an application for renewal of

QL No.2096 dated 24.08.1978, was filed. After making W.P.No.10123/2022

an application for grant of extension of lease on

24.06.1994, the petitioner stated that, in fact, its

intention was to apply for renewal of lease. The

respondent has produced a notification dated

25.08.1999, vide Annexure-R3 which is in printed form,

wherein the word 'Grant' was struck out and the word

'Renewal' was maintained in Clause No.2. The relevant

part of the notification in Clause 2 dated 25.08.1999,

reads thus:

"The Grant/Renewal of the Lease/Licence for quarrying is subject to the terms and conditions mentioned hereunder:

2(a): Quarrying Lease/Licence shall be in respect of Black Granite minor mineral only. If any other minor/mineral/s is/are found in association with the said minor mineral, the same should be brought to the notice of the Competent Authority and if the Lessee/Licencee desires to quarry these minerals also, he should do so only after the consent of the Competent Authority is obtaining in writing.

xxx W.P.No.10123/2022

2(g): The Grant/Renewal of this Quarry Lease/Licence for quarrying shall be subject to various other provisions of KMMC Rules 1994.

2(h): The Grantee shall be governed by all additional conditions which may be incorporated into the Lease/Licence Deed at the time of Execution of Lease/Licence Deed.

xxx"

(emphasis supplied)

10. From the perusal of Clause 2(a), 2(g) & 2(h)

shows that printed word 'Grant' was struck out and the

word 'Renewal' was maintained in the notification and

Clause 2(h) of the notification indicates that application is

submitted for execution of lease. Thus, we must note

that after making an application for grant of renewal of

lease in Form-R, it was mentioned that the earlier lease

was granted on 24.08.1978, for a period of 5 years and

applied for renewal on 24.04.1990, once again filed a

renewal application on 19.01.1991 and it was considered

and quarry lease was sanctioned on 26.06.1991. The

said quarry lease was set aside by this Court and same

was upheld by the Hon'ble Apex Court. Further, the W.P.No.10123/2022

petitioner submitted Form-R vide Annexure-R2. It

indicates for renewal of lease and not for fresh lease.

Pursuant to the notification dated 25.08.1999, the

respondent executed quarrying lease on 25.08.1999,

vide Annexure-C. Annexure-C indicates the notification

No.CI-283 MMN 99 i.e., Annexure-R3. From the perusal

of the quarrying lease/licence deed vide Annexure-C, the

said quarrying lease is a renewal of quarrying lease, but

not a fresh lease as contended by the learned counsel for

the petitioner. Further, the lease which was granted on

24.08.1978, in respect of same land was valid only for a

period of 5 years. The documents signed by the

petitioner shows that when the application was made by

the petitioner vide Annexure-R2 dated 24.06.1994, the

lease granted in the year 1978 had expired long back.

Considering the notification vide Annexure-R3 and

quarrying lease vide Annexure-C, we hold that what was

granted under the notification dated 25.08.1999, was a

renewal of quarrying lease. The issue involved in this

writ petition is squarely covered by the decision of the W.P.No.10123/2022

Co-ordinate Bench of this Court in W.P.No.35586/2019,

disposed of on 17.09.2019. Considering the decision of

the Co-ordinate Bench of this Court and also the

documents produced by the petitioner, it establishes that

the lease granted vide Annexure-C was by way of

renewal and it was not an original lease. On a plain

reading of Sub-rule (2) of Rule 8A of the said Rules of

1994, automatic extension provided therein will not apply

to a case where the lease has been renewed prior to

coming into force of the Rules as amended on

12.08.2016.

11. Learned senior counsel for the petitioner has

placed reliance on various judgments of the Hon'ble Apex

Court. We have perused the judgments. There is no

dispute in regard of the proposition of law laid down by

the Hon'ble Apex Court in the said judgments. The said

judgments are not applicable to the case in hand. We do

not find any grounds to entertain the writ petition.

Accordingly, we proceed to pass the following:

W.P.No.10123/2022

ORDER

The writ petition is dismissed.

In view of disposal of the writ appeal, pending IAs., if any, do not survive for consideration and are accordingly disposed of.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

RD