Allowed

Sri Narayana S G v. State of Karnataka

Karnataka HC18 Jun 2021WP/8484/2021

Case brief

AI extract

What is this about?

The High Court held that the District Task Force Committee lacked authority to recommend lease cancellation. The court ruled that withdrawing a No Objection Certificate does not automatically cancel a lease and such withdrawal requires a hearing. Impugned orders ignoring these principles were set aside.

What did the court decide?

Annexure-A dated 14.12.2020 and Annexure-B dated 05.03.2021 set aside; liberty reserved to respondents to initiate lawful proceedings.

Sri Narayana S G Vs State of Karnataka — Land Acquisition | Karnataka HC (2021)

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W.P. No.8484 OF 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF JUNE, 2021 PRESENT

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THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.8484 OF 2021 (GM-MMS)

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BETWEEN:

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SRI. NARAYANA S.G. S/O SRI. GANAPATHI RAO AGED ABOUT 58 YEARS R/A KARAGADI HANIYA POST HOSANAGARA TALUK-577418 SHIVAMOGGA DIST. ... PETITIONER

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(BY SRI. L.M. CHIDANANDAYYA, ADVOCATE-VC)

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AND:

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STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF COMMERCE AND INDUSTRIES (MSME & MINES), VIKASA SOUDHA BANGALORE-560001

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DIRECTOR

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DEPARTMENT OF MINES AND GEOLOGY KHANIJA BHAVAN, RACE COURSE ROAD BANGALORE-560001

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DISTRICT TASK FORCE COMMITTEE HEADED BY DEPUTY COMMISSIONER SHIVAMOGGA DISTRICT SHIVAMOGGA-577201

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SENIOR GEOLOGIST (M) DEPARTMENT OF MINES & GEOLOGY AC OFFICE BUILDING, 2^ND FLOOR

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W.P. No.8484 OF 2021

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BALARAJ URS ROAD SHIVAMOGGA-577201

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PRINCIPAL CHIEF CONSERVATOR OF FOREST ARANYA BHAVAN,MALLESHWARAM BANGALORE-560055

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DEPUTY CONSERVATOR OF FOREST SAGARA DIVISION SAGARA-577401

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ASST. CONSERVATOR OF FOREST DEPARTMENT OF FOREST HOSANAGARA DIVISION HOSANAGARA-577418

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RANGE FOREST OFFICER NAGARA RANGE, HOSANAGARA SHIVAMOGGA DIST-577201

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DEPUTY COMMISSIONER SHIVAMOGGA DISTRICT SHIVAMOGGA-577201 … RESPONDENTS

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

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS WHICH RESULTED IN PASSING PROCEEDINGS ANNEXURE-A DATED 14.12.2020 BY THE 3^RD RESPONDENT AND ORDER DATED 05.03.2021 ANNEXURE-B BEARING NO.GABUE/HIBUSHI/KAGAGU 801/2020-21/3658 PASSED BY THE 4^TH RESPONDENT AND ETC.

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THIS WRIT PETITION COMING ON FOR FINAL DISPOSAL AND HAVING BEEN RESERVED FOR ORDERS ON 01.06.2021, THIS DAY, SURAJ GOVINDARAJ J. , PRONOUNCED THE FOLLOWING:

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W.P. No.8484 OF 2021

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O R D E R

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The petitioner is before this Court seeking for quashing of Annexure A being the proceedings of the District Task Force (Mines) Committee and the District Stone Crushing Unit Licencing Regulation Authority (DTFC) held on 14.12.2020 whereunder the said Committee recommended the rejection of the application filed by the petitioner/lessee for restoration of the quarrying lease granted to the petitioner as also for quashing of Annexure-B being the order passed by the Senior Geologist, Department of Mines and Geology rejecting the permission for restoration of quarrying lease granted to the petitioner. Consequently, the petitioner has sought for a mandamus directing the respondents not to interfere with the rights of the petitioner to conduct quarrying operation in terms of the Quarrying Lease No.801/2018-19.

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The petitioner was granted quarrying lease for building stone in the land bearing Sy.No.5/P1 measuring 1 acre

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28 guntas situated at Kumbatti Village, Hosanagar Taluk and Shivamogga District in terms of the QL No.801/2018-19 executed on 28.12.2018 for a period of 20 years. Prior to the execution of the lease, the petitioner had secured NOC from the Deputy Conservator of Forest (DCF), environment clearance from the competent authority etc.,.

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On a complaint filed by certain persons said to be inimical to the petitioner, the DCF vide its letter dated 21.09.2019 addressed to the Senior Geologist withdrew the no objection issued earlier and requested the Senior Geologist to cancel/terminate the quarry lease. Pursuant thereto, the Senior Geologist – 4^th respondent without giving any notice or opportunity to the petitioner is stated to have terminated the registered quarry lease vide its order dated 17.12.2019, which came to be challenged before this Court in W.P.No.303/2020 wherein the said termination order was set aside and the quarry lease was restored. However, liberty was

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reserved to the competent authority to proceed if required under Rule 6 (3) of KMMC Rules.

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The Senior Geologist – 4^th respondent is stated to have issued a notice on 26.05.2020. It was replied to by the petitioner on 15.06.2020 wherein a personal hearing was sought for. Without granting opportunity of hearing, 3^rd respondent – District Task Force Committee is stated to have recommended premature determination of the quarrying lease on which basis the Senior Geologist – 4^th Respondent has issued an endorsement informing that the quarrying lease granted to the petitioner is cancelled. It is aggrieved by the same, the petitioner is before this Court.

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Sri. L.M. Chidanandayya, the learned counsel for the petitioner contends that:

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5.1. The 3^rd respondent - District Task Force Committee has been abolished by the Government of Karnataka and therefore, it does

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not have any jurisdiction to take up the matter for cancellation of quarrying license;

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5.2. The 4^th respondent - Senior Geologist could not have considered the recommendation or a decision of cancellation of the 3^rd respondent. The withdrawal of 'No Objection Certificate' issued by the DCF cannot be a ground for cancellation of license in terms of Rule 6 (3) of the KMMC Rules;

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5.3. There is a violation of principles of natural justice in that the petitioner has not been heard and no opportunity has been given.

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5.4. The reply of the petitioner dated 15.06.2020 has not been considered.

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5.5. There is no reason as such furnished for change of opinion of the DCF inasmuch as the DCF had

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earlier issued a 'No Objection Certificate after 'Joint Inspection'.

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Per contra, Sri.Mahendra, the learned Additional Government Advocate would contend that:

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6.1. There are serious allegations as regards environmental impact due to quarrying activities carried out by the petitioner;

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6.2. Certain facts were not brought to the notice of the DCF when 'NOC' was earlier issued, on the same being pointed out, an inspection was carried out wherein it was found that the licenced land is very close to a wildlife sanctuary. Quarrying activities would also have an adverse impact on the Sharavathi river, which is very near and as such, action taken by the authorities are proper and correct.

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Having considered the rival submissions, the points that

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would arise for determination are:

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7.1. Whether the District Task Force Committee can recommend for cancellation of quarrying license in respect of building stone?

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7.2. Whether the Senior Geologist is bound to follow the recommendation of the District Task Force Committee without independent application of mind?

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7.3. Whether a 'No Objection Certificate' earlier granted could be withdrawn without hearing the party to whom a 'No Objection Certificate' has been granted?

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7.4. Whether a withdrawal of a 'No Objection Certificate' ipso facto would lead to cancellation of the lease/quarrying license?

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7.5. What Order?

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We answer the above points as under:-

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Answer to Point No.1 : Whether the District Task Force Committee can recommend for cancellation of quarrying license in respect of building stone?

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9.1. Rule 6 (3) of KMMC Rules provides for an action that could be taken against the lessee or licensee

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for breach of any conditions of the quarrying

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license and reads thus:

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"6. (3) In case of breach by the lessee or licencee or his transferee or assignees of any of the conditions specified in these rules or in the quarrying lease deed or licence, the Competent Authority shall require by notice in writing the lessee or licence to remedy the breach within thirty days from the date of notice and if the breach is not remedied within such period the Competent Authority may levy a fine not exceeding ten thousand rupees in the case of non-specified minor minerals fifty thousand in case of specified minor minerals and the Competent Authority may without prejudice to any other action that may be taken against such lessee licensee, transferee or assignee determine the lease or licence after providing an opportunity of being heard.

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Provided that if a lease or license holder has been imposed with a fine under the above rule for three times during the lease period, the lease or license shall be terminated."

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9.2. Any action required to be taken under the said Sub-Rule is by the competent authority. The Competent Authority is defined under Rule 4 of the KMMC Rules, which reads thus:

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"4. Competent Authority. - The State Government may by notification, appoint the Competent Authority for all or any of the purposes of these rules. [including Competent Authority for approval of Quarrying Plan]."

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9.3. Notification under Rule 4 came to be issued vide Notification No.CI319 MAN 2016 (1) Bengaluru, dated 18.11.2016. In terms of the said notification, the persons who are nominated to take action and/or designated as competent authority in respect of Rule 6 (3) of KMMC Rules are the Commissioner/Director for the whole of the State and Deputy Director/Senior Geologist in their respective jurisdiction.

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9.4. Thus, the DTFC would not be a competent authority to take any action or recommend any action under Rule 6 (3) of the KMMC Rules.

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9.5. Hence, we answer Point No.1 by holding that it is only the Commissioner/Director for the whole of

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the State of the Karnataka or the Deputy Director/Senior Geologist in their respective jurisdiction who could exercise powers under Rule 6 (3) of KMMC Rules. The District Task Force Committee is neither the competent authority nor is empowered to take any action under Rule 6 (3) of KMMC Rules.

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Answer to Point No.2 : Whether the Senior Geologist is bound to follow the recommendation of the District Task Force Committee without independent application of mind?

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10.1. As answered in Point No.1, DTFC is not a competent authority and it is only the Commissioner/Director for the whole of the State of the Karnataka or the Deputy Director/Senior Geologist in their respective jurisdiction who are the competent authority. Even if the order of the DTFC were to be considered to be a recommendation or a request to the competent authority namely the Senior Geologist who is the

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notified competent authority, the competent authority cannot blindly adopt or accept any recommendation and/or suggestion made by any other authority and pass an order in terms thereof.

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10.2. The competent authority is required to apply its independent mind and come to a decision, needless to say the decision of the competent authority is a decision by itself and not a mere confirmation or reiteration of the recommendation made by the DTFC.

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10.3. Hence, we answer Point No.2 by holding that the competent authority under any legislation or a sub-ordinate legislation or delegated legislation would be required to independently apply its mind while taking a decision and cannot rely upon a decision or a recommendation by any other authority. The Senior Geologist is not bound to

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follow the recommendation of the DTFC, it is required to apply its mind and come to an independent decision.

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Answer to Point No.3: Whether a 'No Objection Certificate' earlier granted could be withdrawn without hearing the party to whom a 'No Objection Certificate' has been granted?

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11.1. It is a basic principle of natural justice that a party needs to be heard before the passing of any adverse orders, which affect the rights of the party. That is to say no order can be passed against a person without hearing such person.

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11.2. An NOC would permit a person to do or not to do

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a particular act, thus by the grant of an NOC a vested right is created in such person to act in terms of and in accordance with the NOC so granted.

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11.3. Hence, this vested right cannot be taken away, otherwise than in accordance with law. It is but required that the applicable law and procedure including the principles of natural justice is followed.

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11.4. We answer point no.3 by holding that a 'No Objection Certificate' earlier granted cannot be withdrawn without hearing the party to whom a 'No Objection Certificate' has been granted.

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Answer to Point No.3: Whether a withdrawal of a 'No Objection Certificate' ipso facto would lead to cancellation of the lease/quarrying license?

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12.1. The very nomenclature of “No-Objection Certificate” (NOC) indicates that the person or authority issuing no objection has indeed no objection for a particular act to be done or not to be done.

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12.2. The requirement of NOC is only at the time of

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grant of quarrying licence or lease. The statute does not contemplate any renewal of the NOC from time to time. Thus, once the NOC is acted upon the validity of the NOC comes to an end, unless the NOC itself is for a particular period.

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12.3. An NOC once granted cannot be unilaterally cancelled after a sufficient gap of time. Depending on the nature of NOC, the NOC once acted upon would have spent itself and cannot be cancelled. However, if the NOC were such that it is a continuing one, the same can be cancelled if any new facts come to light which would have a bearing on the continuance of the NOC. In such circumstance the principles of natural justice would have to be followed, a show cause notice clearly and specifically detailing out as to why it is proposed to withdraw the NOC is to be issued. The noticee is to be provided with an opportunity

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to reply and be heard, it is only thereafter that necessary orders could be passed on independent application of mind to the facts and law applicable.

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12.4. It is however to be taken note of that in the event of NOC having been obtained by fraud and/or NOC itself being void ab initio in terms of NOC not having been issued by the competent authority, then, the same would go the root of the matter and a quarry lease or licence issued on the basis of such void NOC which is void ab initio could also stand terminated.

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12.5. In the present case, the DCF has cancelled the NOC on the basis of a complaint filed by certain third parties who have made certain allegations and/or have placed certain facts before the said DCF. It was but required that necessary show cause notice was to be issued, which has not

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been done, hence the unilateral revocation of the NOC is bad in law.

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12.6. Even if all the required procedure is followed and thereafter the NOC is withdrawn, the same would only be cause for the competent authority to exercise power under Rule 45 of the KMMC rules to terminate the lease.

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12.7. Rule 45 of the KMMC Rules is reproduced hereunder for easy reference:

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"45. Termination of lease or licence held by an offender . - Where the holder of a lease or licence has committed an offence under sub-section (1) of section 21, without prejudice to the penalty for which the holder of a lease or licence is liable under that subsection, the Competent Authority may, after such enquiry as it deems fit, terminate the quarry lease or licence held by such person.

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Provided that, where the Commissioner of Director of Mines and Geology, after consulting the State Government, is of opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution or to avoid

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danger to public health or communications or to ensure safety of buildings, monuments or other structures for conservation of mineral resources or for maintaining safety in the mines or for such other purposes, or encumbered the quarry lease deed as the Commissioner/Director may deem fit, it may, by an order in respect of any minor minerals, make premature termination of a lease or licence or composite licence with respect to the area or any part thereof covered by such licence or lease:

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Provided further that, no such order making a premature termination shall be made without giving reasonable opportunity to the Lessee or Licensee]”

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12.8. As could be seen from the provisio, even to exercise power under Rule 45, an opportunity has to be provided to the lessee or licencee before such termination.

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12.9. Hence, we answer Point No.4 by holding that a withdrawal of a 'No Objection Certificate' ipso facto would not lead to cancellation of the quarrying lease/license, the procedure under

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Rule 45 would have to be followed to

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terminate the lease/licence

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13. Answer to Point No.5: What order?

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13.1. In view of the above discussion, we are of the considered opinion that the Senior Geologist could not have cancelled the quarrying license issued to the petitioner on the basis of the recommendation and/or decision made by the District Task Force Committee. Any action could be initiated under Rule 6 (3) of KMMC Rules by the Commissioner/Director or the Deputy Director/Senior Geologist in their respective jurisdiction, which has not been done. Be that as it may Rule 6(3) would come into operation only if there is a breach of the terms of the lease/licence or the KMMC Rules, in the present case there is no such allegation, hence Rule 6(3) would also not be applicable.

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13.2. Rule 45 of the KMMC rules provides for premature termination of the lease/licence. It is only if the conditions and the pre requisite of Rule 45 of KMMC Rules are satisfied that there could be premature termination of lease or licence after giving reasonable opportunity to the lessee or licencee. In the present case neither there is any power exercised either under Rule 6 (3) or Rule 45 of KMMC Rules. Hence, the impugned order cannot be sustained.

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13.3. Hence, we pass the following

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ORDER

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i) The impugned proceedings at Annexure-A dated 14.12.2020 is set aside.

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ii) The impugned order at Annexure-B dated 05.03.2021 passed by the Senior Geologist is set aside. Liberty is however reserved to the respondents to initiate such proceedings as may be advised in accordance with law.

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iii) Writ petition is disposed of with the above directions.

Sd/-

CHIEF JUSTICE

Sd/JUDGE

Prs*

Sri Narayana S G v. State of Karnataka

Case brief

What is this about?

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Sri Narayana S G v. State of Karnataka

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