2005 Supreme(Kar) 665

2006(3) Kar. L.J. 64
In The High Court Of Karnataka At Bangalore
D.V. Shylendra Kumar, J.
Chikkusappa
V.
State Of Karnataka And Others
Writ Petition No. 4750 of 2005 (KLR-CON) connected with Writ Petition Nos. 2028, 4751 to 4753, 4800, 4803, 4854, 5271, 5283, 6624, 6391, 2026, 5151, 12395, 15457 and 16211 of 2005 (KLR-RES).
7th November, 2005

Headnote:Mineral Concession Rules, 1969- Rule 2- Mining operation -Quarrying activities does not amount to.

       Cases Referred: W.P. No. 4563 of 1987, dd. 14-7-1987; 1997 (2) Kar. L.J 219;1990 SC 85; AIR 1987 SC 359; AIR 2001 SC 8; AIR 1993 SC 43; AIR 1963 SC 151; (2002) 3 SCC 496; AIR 2004 SC 3894; (2003) 7 SCC 197; AIR 1968 SC 647;

       Mines and Minerals (Development and Regulation) Act, Section 2-Mining operation -Quarrying activities does not amount to.

       Cases Referred: W.P. No. 4563 of 1987, dd. 14-7-1987; 1997 (2) Kar. L.J 219;1990 SC 85; AIR 1987 SC 359; AIR 2001 SC 8; AIR 1993 SC 43; AIR 1963 SC 151; (2002) 3 SCC 496; AIR 2004 SC 3894; (2003) 7 SCC 197; AIR 1968 SC 647;

       Estoppel -Doctrine of -Has no application against a statute.

       Cases Referred: W.P. No. 4563 of 1987, dd. 14-7-1987; 1997 (2) Kar. L.J 219;1990 SC 85; AIR 1987 SC 359; AIR 2001 SC 8; AIR 1993 SC 43; AIR 1963 SC 151; (2002) 3 SCC 496; AIR 2004 SC 3894; (2003) 7 SCC 197; AIR 1968 SC 647.

       Precedents -Authority of -Stated.

       Ratio Decidendi -Precedent -For a decision to become a precedent, there should be necessarily a ratio decidendi. See, Constitution of India -Article 141. Dialatory Setteled Principles : "General observations cannot decide individual cases. In order that a certain proposition of law as judicially expounded even have the binding effect of ratio decidendi it must be relatable to the facts found material for the decision and the decision itself." (Lord Dunedin, as quoted by Laxmi Nath in Precedent in Indian Legal System.

       Stare Decisis - Reconsideration of earlier decisions - Reconsideration of earlier decisions - Held, should be confined to questions of great public importance. [N. Kumar, J]: Reconsideration of the earlier decisions should be confined to questions of great public importance. Legal problems should not be treated as mere subjects for mental exercise. An earlier decision may therefore be overruled only if the Court comes to the conclusion that it is manifestly wrong, not upon a mere suggestion that if the matter were res integra, the members of the later Court may arrive at a different conclusion. It is impossible to maintain as an abstract proposition that the Court is either legally or technically bound by previous decisions. Indeed, it may in a proper case be its duty to disregard them. But the rule should be applied with great caution, and only when the provision is manifestly wrong. Otherwise there would be grave danger of a want of continuity in the interpretation of the law. It is not possible to say that it is not open to the Court to review its previsions decisions on good cause. The question is not, whether the Court can do so, but whether it will, having due regard to the need for continuity and consistency in judicial decisions. The doctrine of stare decisis is not an inflexible rule of law and cannot be permitted to perpetuate errors to the detriment to the general welfare of the public or a considerable section thereof.

       Judicial Academics -Merger -Doctrine of -When an order passed by a superior Court becomes a precedent. [D. V. SHYLENDRA KUMAR, J.]: The theory of merger wherein a Judgment of a subordinate Court gets merged with the Judgment or order of the superior Court also cannot elevate the status of a decision rendered by the lower Court to that of a precedent until and unless, the order passed by the lower Court itself was one where under the principle of law as is required to constitute a judicial precedent had been evolved and the appellate Court has being conscious of this principle of law has either affirmed or varied the same. If the decision of the subordinate or the lower Court is not a precedent by itself, the decision rendered by the appellate Court does not become a precedent automatically, until and unless, the appellate Court has independently evolved the principle and has applied for its decision.

       Cases Referred: W.P. No. 4563 of 1987, dd. 14-7-1987; 1997 (2) Kar. L.J 219;1990 SC 85; AIR 1987 SC 359; AIR 2001 SC 8; AIR 1993 SC 43; AIR 1963 SC 151; (2002) 3 SCC 496; AIR 2004 SC 3894; (2003) 7 SCC 197; AIR 1968 SC 647

       Karnataka Land Revenue Act- Section 95- Legislative intent and ambit-Stated. [D. V. SHYLENDRA KUMAR, J.]: Section 95 is a provision which seeks to regulate the manner of user of lands held or possessed for agricultural purpose. It is a provision which steps in when the lands held for agricultural purpose are sought to be put to other use essentially non-agricultural purpose. The provision in fact is more a regulatory provision than one aimed at checking or controlling the other activity such as mining. The fallacy in the argument is that the provisions of Section 95 operate at a stage when the mining activities had not commenced, the activity is not one covered or regulated under the provisions of MMDR Act or Rules framed thereunder, but the activity was one which is essentially an agricultural activity on land held for agricultural purpose, assessed as such and used as such. In respect of such agricultural lands, it is only the State Government which has legislative competence to make laws including a provision for regulating the diversion of such lands for non-agricultural purpose. The argument is, therefore, not tenable and is hereby rejected. In fact in this view of the matter, it may not even be necessary to examine a question as to whether a State Act becomes bad for the mere reason that it incidentally touches upon a provision of any law made by the Union Parliament and in the light of the principle of pith and substance. Salmond said in the year 1902 that a judicial precedent speaks with authority in England. Court added "it is so even in India even today."

       Cases Referred: W.P. No. 4563 of 1987, dd. 14-7-1987; 1997 (2) Kar. L.J 219;1990 SC 85; AIR 1987 SC 359; AIR 2001 SC 8; AIR 1993 SC 43; AIR 1963 SC 151; (2002) 3 SCC 496; AIR 2004 SC 3894; (2003) 7 SCC 197; AIR 1968 SC 647

       Karnataka Minor Mineral Concession Rules, 1994- Rule 2- Mining operation -Quarrying activities does not amount to.

       Karnataka Minor Minerals Consession Rules, 1994 -Rule 42 -Mineral Dispatch permits -Issue of -All compliances met with -Authorities refused to grant on ground that necessary permission under Section 95 of Karnataka Land Revenue Act has to be obtained as a condition precedent -If sustainable. [D. V. SHYLENDRA KUMAR, J.]: In the context of issue of mineral dispatch permits under Rule 42, the competent authority on being apprised by another statutory authority of the government functionary under the Act [Karnataka Land Revenue Act] has brought to the notice of the competent authority that persons who apply for issue of mineral dispatch permits if are required to ensure certain other compliance and the requirement under the Act, particularly under Section 95 of the Act, the competent authority may ensure observance of such compliance before issue of mineral dispatch permit in favour of such persons. In the present action of the respondents, questioned by the petitioners before this Court, the authorities have expressly referred to the provisions of Section 95 of the Act, a provision which, if required to be complied with and if not complied would come in the way of the petitioners obtaining mineral dispatch permits, even under the Karnataka Minor Mineral Concessions Rules, 1994 and in such a context, the petitioners have sought for relief. It is no doubt true that individuals who are required to comply with law are always put to considerable hardship, difficulties and miseries and even to harassment many a time at the hands of lethargic or even unscrupulous public servants, but that by itself cannot be a criterion for giving a go-bye to the statutory provisions which are all enacted by the Legislature for common good or public good, though it may nevertheless cause the individual a little hardship or inconvenience. Compliance with requirements of law is not tested on the touchstone of personal hardship and difficulties, but on the touchstone of statutory provisions, including fundamental rights, existence of any arbitrary or vindictive action on the part of the officials of the State or even their inaction in the sense failure of duty on the part of the officials vis-à-vis corresponding right in favour of the citizen. There is nothing illegal or even irregular in this communication. It is not in contravention of any statutory provisions. It is a communication which only apprises the another statutory functionary about the existence of Section 95 of the Act, requirement of compliance with by such persons who are required to obtain permission under Section 95(2) of the Act. On the face of it, there is nothing wrong at all in this communication. No occasion to issue a writ in the nature of certiorari as sought for.

       Constitution of India -Article 141 -Precedents -Law laid down by Supreme Court and High Courts -Difference. [D. V. SHYLENDRA KUMAR, J.]: Constitution of India). There is considerable confusion prevailing in this country and in judicial circles on the concept of precedent, particularly in the light of the provisions of Article 141 of the Constitution of India. While under Article 141, a law as declared by the Supreme Court in the sense as interpreted is the law of the land and binding on all the Courts even when such law is not applied or applying the very interpretation, the case is not decided i.e. the result of the case being not based on the very law as declared by the Supreme Court, the position is vastly different in the case of High Courts for the purpose of a decision to become a precedent and to be followed in the subsequent cases. For a decision to become a precedent, there should be necessarily a ratio decidendi in the case. The case should have been decided on applying the ratio as laid down in that case; that the ratio decidendi is possible only when the facts and circumstance arise in that case; that has become an issue and for determination of which issue, the provisions of law and the principles of law is employed and applied. If any of these ingredients are not present, the decision does not become a precedent and cannot be called in aid as an authority to have a binding force on the very Court or Courts subordinate in deciding subsequent cases by calling in aid the doctrine of stare decisis. Therefore, while even obiter dicta of the Supreme Court decisions are elevated to the status of law as declared under Article 141 of Constitution of India and therefore the High Courts are not confronted with the arduous task of extracting the ratio decidendi of the decision of the Supreme Court to cite it as a precedent, the position with regard to the High Courts themselves is vastly different and the conventional understanding of the concept of a precedent necessarily applies when a decision of the High Court is cited as a precedent and as a binding authority.

       Cases Referred: W.P. No. 4563 of 1987, dd. 14-7-1987; 1997 (2) Kar. L.J 219;1990 SC 85; AIR 1987 SC 359; AIR 2001 SC 8; AIR 1993 SC 43; AIR 1963 SC 151; (2002) 3 SCC 496; AIR 2004 SC 3894; (2003) 7 SCC 197; AIR 1968 SC 647;