Partly allowed

Smt Usha M Shetty v. State of Karnataka

Karnataka HC5 Oct 2021WP/12039/2020

Case brief

AI extract

What is this about?

The Court held that suspending quarrying activities solely due to a pending penalty demand while the mining lease remains valid and subsisting is erroneous. The petition was disposed of with a direction to the respondent to consider issuing Minor Delivery Permits for lawfully excavated minerals.

What did the court decide?

Direct respondent No.4 to consider issuing Minor Delivery Permits for lawfully excavated minerals; respondent to recover the determined penalty in accordance with law.

Smt Usha M Shetty Vs State of Karnataka — Environment and Pollution | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF OCTOBER, 2021

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PRESENT

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THE HON'BLE MR.SATISH CHANDRA SHARMA ACTING CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.12039 OF 2020 (GM-MM-S)

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BETWEEN:

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SMT. USHA M SHETTY W/O. MAHESH SHETTY, AGED 46 YEARS, SHREE LAKSHMI BANDASALE, VANDAR VILLAGE AND POST, UDUPI TALUKA, UDUPI-576 223

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...PETITIONER

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(BY SRI R.G.KOLLE, ADVOCATE)

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AND:

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STATE OF KARNATAKA REP. BY ITS CHIEF SECRETARY VIDHAN SOUDHA, BENGALURU-560 001.

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THE SECRETARY TO GOVERNMENT, DEPARTMENT OF COMMERCE AND INDUSTRIES VIKAS SOUDHA, BENGALURU-560 001.

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THE DIRECTOR AND COMMISSIONER, DEPARTMENT OF MINES AND GEOLOGY KHANIJA BHAVAN, RACE COURSE ROAD, BENGALURU-560 001.

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THE SENIOR GEOLOGIST AND COMPETENT AUTHORITY DEPARTMENT OF MINES AND GEOLOGY, RAJATADRI, MANIPAL UDUPI-576 104.

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…RESPONDENTS

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(BY SRI S.S.MAHENDRA, AGA)

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THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT TO QUASH OR SET ASIDE THE ORDER PASSED BY R-4 SENIOR GEOLOGIST DTD.03.12.2019 PRODUCED AT ANNEXURE-A AND ETC.,

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, SACHIN SHANKAR MAGADUM J., MADE THE FOLLOWING:

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ORDER

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The captioned petition is filed questioning the impugned final notice dated 03.12.2019 issued by the respondent No.4 as per Annexure-A. The petitioner is also seeking a writ of mandamus to direct the respondent No.4 to restore quarry lease to extract ordinary building stone over an area of 2 acres

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in government land.

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2. The facts leading to the case are as under:

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The respondent No.4 issued a show cause notice dated 14.08.2019 to show cause as to why penalty of five times the royalty shall not be imposed as per the provisions of the Karnataka Minor Mineral Concession Rules, 1994 (for short 'the Rules of 1994), within a period of seven days for having transported 11,898 MT without obtaining permits and quarrying 11,156 MT of building stone outside the quarrying lease area. The petitioner offered an explanation by a letter dated 04.09.2019 and refuting the allegations in the show cause notice contended that the quarrying activities are carried out only in the leased area i.e., Sy.Nos.174/2 and 121 of 33 of Shirooru village. It was also contended by the petitioner that quarrying activities were carried out only to the extent of available permits and no illegal quarrying as alleged is carried out.

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The respondent No.4 being unsatisfied with the

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explanation offered by the petitioner herein has issued the final notice as per Annexure-A imposing penalty of five times the royalty and has consequently issued a demand notice for a sum of Rs.35,69,400/-. The respondent No.4 has ordered to stop the quarrying activities with immediate effect until payment of penalty is determined by the authorities.

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Being aggrieved by the impugned final notice, the petitioner is before this Court.

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Learned counsel appearing for the petitioner placing reliance on a judgment rendered by the Co-ordinate bench of this Court in W.P.Nos.21678-21679/2019 would contend before us that the authority erred in suspending the mining activities more particularly when the lease is valid and subsisting. Learned counsel appearing for the petitioner would further contend that the impugned final notice as per Annexure-A is in gross violation of principles of natural justice.

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Per contra, learned AGA would however support the impugned final notice under challenge. He would submit to

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this Court that as against show cause notice there is absolutely no material furnished by the petitioner to contradict the serious allegations attributed towards the petitioner for having carried out illegal mining. He would further submit to this Court that nothing substantial is stated in the reply and therefore, the petitioner is not entitled to any reliefs.

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We have heard the learned counsel for the petitioner and learned AGA and have also perused the records.

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On perusal of the impugned final notice under challenge, we would find that the respondent No.4 having imposed a penalty of Rs.35,69,400/- by imposing five times royalty has ordered for suspending the quarrying activities till payment is made. We have perused the judgment of the Coordinate Bench relied by the petitioner. The Co-ordinate Bench of this Court in W.P.Nos.21678-21679/2019 at paragraph 7 has held as follows:

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"7. So long as the mining lease is valid and subsisting, the respondents cannot refuse to issue MDP in respect of minerals lawfully excavated by the petitioner from the leased area. Only on the ground that there is a demand for penalty and that a show cause notice of cancellation has been issued, MDP in respect of minerals lawfully excavated on the basis of subsisting lease cannot be denied."

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Learned counsel for the petitioner has also relied on a judgment rendered by the Co-ordinate Bench in W.P.No.542/2020. Paragraph 9 of the said judgment would be

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relevant to decide the present lis and the same is culled out as

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follows:

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"9. In W.P.Nos.21678-21679/2019, the petitioner was granted two mining leases which were valid and subsisting. Notice was issued calling upon the petitioner to show cause as to why the mining leases should not be cancelled on various grounds stated therein. The only grievance in the petition was as regards denial of MDPs for transporting the minor mineral excavated from the leased area in respect of one of the two leases. In paragraph 7 of the said decision, the Division Bench has held thus:

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So long as the mining lease is valid and subsisting, the respondents cannot refuse to issue MDP in respect of minerals lawfully excavated by the petitioner from the leased area. Only on the ground that there is a demand for penalty and that a show cause notice of cancellation has been issued, MDP in respect of minerals lawfully excavated on the basis of subsisting lease cannot be denied."

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If the judgments rendered by the Co-ordinate

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Bench are examined in the light of the controversy in the present case on hand, we are of the view that the respondent No.4 erred in suspending the quarrying activities with immediate effect. The Co-ordinate Bench in the judgment cited supra has held that so long as the mining lease is valid and subsisting, the authorities cannot refuse to issue MDP in respect of minerals lawfully excavated. The respondent No.4 having determined the penalty has also ordered for suspending the quarrying activities. Therefore, we are of the view that the impugned final notice insofar as suspending the quarrying activities is liable to be set aside.

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For the foregoing reasons, we pass the following:

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ORDER

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(i) The writ petition is disposed of.

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(ii) We direct the respondent No.4 to consider the case of the petitioner for issuing MDP in respect of minerals lawfully excavated from the leased area i.e., subject matter of leased area bearing QL.No.415 over an area of 2 acres in government land bearing Sy.Nos.174/2 and 121 of 33, Shirooru Village.

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(iii) The respondent authorities are at liberty to recover the penalty determined under the impugned final notice as per Annexure-A in accordance with law.

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(iv) The pending interlocutory applications, if any, stand disposed of.

Sd/-

ACTING CHIEF JUSTICE

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JUDGE