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2019 Supreme(Kar) 1661
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ABHAY S. OKA, P.S.DINESH KUMAR, JJ.
K. Thirumalesh S/o Late Kenchaiah - Petitioner
Versus
State of Karnataka & Ors. - Respondents
Writ Petition Nos. 10601 of 2019 C of W 54573 of 2018, 5048 of 2019, 5046 of 2019, 5047 of 2019, 35452 of 2018, 2058 of 2019, 54223 of 2018, 40711 of 2018, 5539 of 2019, 15503 of 2019, 16563 of 2019, 16565 of 2019, 22899 of 2019, 22900 of 2019, 22901 of 2019, 56322 of 2018, 1222 of 2019, 1228 of 2019, 4377 of 2019, 57812 of 2018, 5522 of 2019, 11817 of 2019, 16431 of 2019, 2452 of 2019, 35450 of 2018, 35451 of 2018, 49973 of 2018, 52910 of 2018, 53505 of 2018 & 11155-57 of 2019, 107 of 2019, 674 of 2019, 1154-1155 of 2019,1187 of 2019, 2076 of 2019, 2193 of 2019 & 5383 of 2019, 2194 of 2019, 2373 of 2019, 2854 of 2019, 2987 of 2019, 2988 of 2019, 2989 of 2019, 2990 of 2019, 2992 of 2019, 3477 of 2019, 3478 of 2019, 3479 of 2019, 3495 of 2019, 4145 of 2019, 4459 of 2019, 4600 of 2019, 5815 of 2019, 5816 of 2019, 6422 of 2019, 7810 of 2019, 8141 of 2019, 8263 of 2019, 8264 of 2019, 10445 of 2019, 10602 of 2019, 10608 of 2019, 10631 of 2019, 10632 of 2019, 10633 of 2019, 10670 of 2019, 11158 of 2019, 11160 of 2019, 11452 of 2019, 11453 of 2019, 11454 of 2019, 11455 of 2019, 12249 of 2019, 12678 of 2019, 14091 of 2019, 14093 of 2019, 14402 of 2019, 14403 of 2019, 14404 of 2019, 15541 of 2019, 15906 of 2019, 16430 of 2019, 16432 of 2019, 19358 of 2019, 20091 of 2019, 20093-20094 of 2019, 22366 of 2019, 22369 of 2019, 22370 of 2019, 22385 of 2019, 22891 of 2019, 23107 of 2019, 23108 of 2019, 2991 of 2019, 20689 of 2019 and 38427 of 2018 (GM-MM-S)
Decided On : 16-08-2019
For the Petitioner: Sri. R.G. Kolle, Adv.
For the Respondent: Sri. V.G. Bhanuprakash, Aga.
Headnote:
Mines and Minerals Act, 1957 - Section 15 - Forest Act 1980 - Mines and Minerals Act, 2015 - Karnataka Land Revenue Act, 1964 - Section 67 - Karnataka Minor Mineral Concession Rules, 2016 - Rule 8-B - Karnataka Minor Mineral Concession Rules, 1994 - Grant of quarry leases - Restrictions on grant or renewal of quarrying lease or license – Condo nation of delay - Whether view taken above is contrary to binding precedents of coordinate Benches is discussed separately - Whether by way of payment of compensation or otherwise in cases where any such party is prejudicially affected by reason of any prospecting or mining operations - Whether by way of reimbursement of cost of rehabilitation or otherwise by person holding quarrying or mining lease - Whether by merely making an application for grant of construction permission any vested right is created in applicant - Whether any exception can be made to case of applicant seeking sanction who had approached court and obtained consideration of its applications for sanction within a specified period - Whether a delegated authority can make delegated legislation having retrospective effect - Extensive amendments were made to said Rules with effect from August inter alia for introducing auction regime - Rules 8-A and 8-B of said Rules were substituted by Karnataka Minor Mineral Concession Rules, 2016 which were published by Notification - Substituted Rule 8-B provided that all applications for grant of mining lease or license received and pending on date of commencement of amendment shall become ineligible - Certain exceptions were carved out to said Rule as provided in sub-rule (2) of Rule 8-B - Substituted Rule 8-A provided that from August all applications for grant of quarry leases shall be granted for a period of thirty years for specified minor minerals and for a period of twenty years for non-specified minor minerals – Held, Said decisions note that under sub-rule (1) of Rule 8-B all applications received prior to said date shall become ineligible - Division benches were impressed by submission that on basis of applications made prior to August Director Department of Mines and Geology was required to obtain all clearances/no objection certificates/reports covered under sub-rule (5) of Rule 8 within a period of ninety days and Rule 14 required authorities to dispose of applications within a period of four months from date of receipt of applications – Therefore Courts have taken a view that where there is a failure on part of authorities to obtain clearances/no objection certificates/reports as required under sub-rule (5) of rule-8 embargo of sub-rule (1) of rule 8-B of making applications ineligible cannot be applied - Therefore in cases where applications pending on August which were rejected by subsequent endorsements relying upon sub-rule (1) of Rule 8-B as amended Division benches directed concerned authorities to obtain clearances/no objection certificates/reports and thereafter deal with applications virtually by applying Rules which are prevailing prior to August - Court must note here that issue whether sub-rule (1) of Rule 8-B was mandatory was neither canvassed nor considered in any of these orders - Issue which arises in this group of petitions is whether sub-rule (1) of Rule 8-B is mandatory - This issue was not considered in aforesaid decisions – Therefore said decisions of coordinate Benches are not at all binding precedents on issue - In addition following most relevant aspects were not brought to notice of Court when aforesaid matters were decided - In aforesaid decisions of this Court which are relied upon by petitioners there is a reference to sub-rule (1) of Rule 8-A - Only factual aspect noted therein is that concerned authorities have made no efforts to get clearances/no objection certificates/reports as contemplated by sub-rule (5) of Rule-8 - Attention of Courts was not brought to notice of similar amendments made to parent Act 1957 - In fact effect of sub-rule (2) of Rule 8-B which starts with non-obstante clause was not brought to notice of Division benches of this Court - Apart from that a binding precedent of decision of Apex Court holding that applications for grant of mining lease must be decided strictly in accordance with law was also not brought to notice of benches - Moreover interpretation put by Apex Court to Section 10-A of parent Act namely said Act of 1957 was not brought to notice of Division benches – Therefore in court considered view none of decisions of aforesaid division benches relied upon by petitioners are binding precedents inasmuch as division benches were not called upon to interpret provisions of sub-rule (1) read with sub-rule (2) of Rule 8-B as amended with effect from August and that also in context of intention of Legislature which is reflected from introduction of various amendments in said parent Act of 1957 including Section 10-A with effect from January - If said amendments to said Act of 1957 were brought to notice of division benches interpretation which is contrary to intention of Legislature would not have been allowed to be canvassed by Division Benches - One of petitioners relied upon a decision of learned single Judge of this Court in the case of Hill Crushers and others –vs- State of Karnataka and others - Said decision has no bearing on controversy involved in these petitions as rule 8-B as amended did not fall for consideration of Court - In effect Court held that provisions of law prevail over a circular issued by Government - Writ petitions are disposed of
ORDER :
This group of petitions concerns interpretation of various provisions of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘the said Rules’) and in particular Rule 8-B as well as a challenge to constitutional validity of sub-rule (1) of Rule 8-B. The Rules have been framed by the State Government in exercise of the power conferred by Section 15 of the Mines and Minerals (Development and Regulations) Act, 1957 (for short ‘the said Act of 1957’). Under Section 15, a power is vested in the State Governments of making Rules for regulating the grant of quarry leases, mining leases, or other mineral concessions in respect of the minor minerals and for the purposes connected therewith. Minor Minerals are defined in clause (e) of Section 3 of the said Act of 1957. There were extensive amendments made to the said Act of 1957 by the Act No.10 of 2015 and in particular, by incorporating Section 10A, with effect from 12th January, 2015. By the said Act, the Central Legislature sought to remove discretion in the manner of granting mining leases or quarry leases. With the object of eliminating the discretion and improving transparency in the allocation of mineral resources, auction regime was introduced as a method of allotment of mining leases/prospecting licenses. Thus, with effect from 12th January, 2015, auction regime was introduced in the said Act of 1957.
2. Extensive amendments were made to the said Rules with effect from 12th August 2016, inter alia, for introducing auction regime. Rules 8-A and 8-B of the said Rules were substituted by the Karnataka Minor Mineral Concession (Amendment) Rules, 2016 (for short “the said Amending Rules”) which were published by the Notification dated 12th August, 2016. The substituted Rule 8-B provided that all applications for grant of mining lease or license received and pending on the date of commencement of the amendment (i.e 12th August, 2016), shall become ineligible. Certain exceptions were carved out to the said Rule as provided in sub-rule (2) of Rule 8-B. The substituted Rule 8-A provided that from 12th August 2016, all the applications for grant of quarry leases shall be granted for a period of thirty years for specified minor minerals and for a period of 20 years for the non-specified minor minerals. It was also provided that all quarry leases or licenses granted before 12th August, 2016 shall be deemed to have been granted for a period of thirty years in respect of specified minor minerals and for a period of twenty years in respect of non-specified minor minerals from the date of its original grant. Rule 8-B, as amended by the said Notification, is relevant for our consideration and it reads thus:
8-B. Status of applications received. (1) All applications received and pending for grant of lease or license prior to the date of commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016, shall become ineligible including the applications received for grant of mining leases of the minerals that are now classified as minor mineral.
(2) Notwithstanding anything contained in sub-rule (1), the following shall remain eligible on and from the commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016, namely:-
(a) Applications received upon the notification issued under Rule 8-B existed before the Karnataka Minor Mineral Concession (Amendment) Rules, 2016.
(b) Where the Committee that existed under the provisions of Rule 11 or District Task Force Committee has recommended for grant of a quarrying lease or license for grant of mining lease, before the commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016.
(c) Where in the case of minerals now reclassified as minor mineral by the Central Government by Notification No.S.O.423(E), dated 10.2.2015, no objection certificates from revenue and forest departments and the approved mining plan from the Indian Bureau of Mines (IBM) have been received before commencement of the Karn
