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2020 Supreme(Kar) 652
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Abhay S. Oka, Ashok S Kinagi, JJ.
Dinesh Shetty - Appellant
Versus
State Of Karnataka - Respondent
Writ Petition No. 5405 of 2020, 5503 of 2020
Decided On : 06-08-2020
Shivaprasad Shantanagoudar, Advocate, V.G. Bhanuprakash, Advocate, Veena T N, Advocate
Headnote:
Karnataka Regulation of Stone Crushers Act, 2011 - Section 3 - Forest Conservation Act, 1980 - Section 2 - Expiry of said license - Applied for renewal of license - Whether designated as reserved protected or otherwise - Whether deeming fiction under said Rules will apply or not will depend on outcome of enquiry - Whether land subject matter of petitions are forest or forest lands - Whether land subject matter of first petition is a forest or a forest land as contemplated by Apex Court in case of supra - License under Section 3 of said Act of 2011 for running a stone crusher unit was granted to petitioner for a period of five years with effect from August - Before expiry of said license on May petitioner applied for renewal of said license - First challenge in said petition is to decision of licensing authority - Decision is that action can be taken on renewal application only after necessary directions and guidelines are issued by Government of India with regard to issue of deemed forest - It is stated in said decision that land subject matter of petition is included in list of deemed forests - Second challenge in petition is to communication - It records that only after final decision of Apex Court regarding deemed forests an action can be taken on basis of application for renewal - Other prayer in writ petition is for a writ of mandamus directing third respondent to take a decision on renewal application – Held, Court have carefully perused said decision - In paragraph Apex Court has observed that almost all orders and judgment of Apex Court dealing with forest and forest land for purpose of Forest Act were rendered in context of mining - Apex Court observed on facts that case before it was different – Thus observations made by Apex Court are in context of peculiar fact situation in case before it - On contrary if observations made in first part of paragraph are perused it is very clear that observations made by Apex Court as regards concept of forest and forest land in earlier judgment was in context of mining activities - In these cases court are dealing with mining activities – Court find that directions issued by Apex Court in order have been nowhere watered down by any subsequent judgments - In present case if lands are covered by wide definition of forest or forest land quarrying can be permitted only after obtaining permission of Central Government – Therefore question whether deeming fiction under said Rules will apply or not will depend on outcome of enquiry whether land subject matter of petitions are forest or forest lands - If same are forests or forest lands within meaning of order of Apex Court obviously applications made by petitioners cannot be considered unless consent as aforesaid is obtained - In event there is an adjudication made that land subject matter of lease is a forest land within wider meaning given by Apex Court in case or is a forest covered by said Act of 1980 State Government will be well within its rights to call upon petitioner to stop mining activity till consent of Central Government under Section 2 of said Act of 1980 is granted to petitioner - Therefore in view of law laid down by this Court it is clear that application for renewal of license cannot be kept pending on ground that land subject matter of first petition has been included in list of deemed forests - In any case now deeming fiction brought on statute book by way of an amendment by inserting sub-sections (2) and (3) of Section 5 of said Act of 2011 will come into operation and petitioners will be entitled to deemed extension as provided in sub-section (2) from date of original grant of license - In short period of validity of license granted to petitioners in both cases will be of twenty years from date on which same was originally granted - As far as issue of forest land is concerned it is not necessary for court at this stage to go into question whether land subject matter of first petition is a forest or a forest land as contemplated by Apex Court in case of supra - Law on this aspect is very clear - A forest or a forest land cannot be diverted for non-forest use without consent of Central Government under Section 2 of Forest Conservation Act, 1980 - Therefore even if a license under section 3 of said Act of 2011 is granted to run a stone crushing unit on a land to which Section 2 of Forest Conservation Act, 1980 is applicable non forest activity on basis of license can be commenced only after obtaining consent of Central Government - As far as second petition is concerned application for renewal has been ordered to be kept pending on ground that stone quarry attached to unit is in a forest land - That is not a ground to deny grant of license under said Act of 2011 - There is no such specific disqualification incorporated under said Act of 2011 - Petitions are allowed
JUDGMENT
Abhay S Oka, C.J. - Heard the learned counsel appearing for the petitioner and the learned Additional Government Advocate for the respondents in both the petitions. Considering the narrow controversy involved in these two petitions, the same are taken up together for final disposal.
2. Both these petitions arise under the provisions of the Karnataka Regulation of Stone Crushers Act, 2011 (for short, "the said Act of 2011"). By the Karnataka Regulation of Stone Crushers (Amendment) Ordinance, 2020 (for short, "the said Ordinance"), the said Act of 2011 was extensively amended. Sub-section (2) of Section (1) of the Ordinance provides that it shall come into force with effect from 30th March, 2020. Admittedly, the said Ordinance is valid. Both the petitions will have to be dealt with in the light of the amendments carried out to the said Act of 2011 by virtue of the said Ordinance.
3. In W.P. No.5405 of 2020, a licence under Section 3 of the said Act of 2011 for running a stone crusher unit was granted to the petitioner for a period of five years with effect from 20th August, 2013. Before the expiry of the said licence, on 21st May, 2018, the petitioner applied for renewal of the said licence. The first challenge in the said petition is to the decision dated 6th August, 2019 (Annexure-A) of the licencing authority. The decision is that action can be taken on the renewal application only after the necessary directions and guidelines are issued by the Government of India with regard to the issue of 'deemed forest'. It is stated in the said decision that the land subject matter of the petition is included in the list of 'deemed forests.' The second challenge in the petition is to the communication dated 22nd November, 2019 (Annexure-B). It records that only after the final decision of the Apex Court regarding 'deemed forests', an action can be taken on the basis of the application for renewal. The other prayer in the writ petition is for a writ of mandamus directing the third respondent to take a decision on the renewal application.
4. As far as W.P. No.5503 of 2020 is concerned, the licence granted to the writ petitioner under the said Act of 2011 for running a stone crusher unit was for a period of five years which expired on 18th December, 2018. On 10th September, 2018, the petitioner applied for renewal of the licence. The challenge in this writ petition is to the communication dated 22nd November, 2019 (Annexure-B) which records that the land subject matter of the petition is not included in the list of 'deemed forests', but the stone quarry connected to the stone crusher unit is situated in the 'deemed forest' area. It records that the Forest Department has objection for renewal of the licence for establishment of a stone crusher unit.
5. The learned counsel appearing for the petitioner in both the writ petitions invited our attention to the amendment carried out to the said Act of 2011 by the said Ordinance and especially, the provision of sub-sections (2) and (3) of Section 5 of the Act incorporated by the said Ordinance. The submission is that as the application for renewal of the licence was filed before the expiry of the licence which was still pending consideration before the licencing authority on the date on which the said Ordinance came into force, the petitioners are entitled to a deemed grant of licence for a period of twenty years as provided in sub-section (2) of Section 5 of the said Act of 2011 incorporated by the amendment carried out by the said Ordinance.
6. Reliance is placed on a decision of this Court dated 12th June, 2019 in W.P. No.54476 of 2016 on the issue of 'deemed forests.' Reliance is also placed on another decision of this Court dated 16th June, 2020 in W.P. No.50855 of 2019. The learned Additional Government Advocate initially submitted that the amendment carried out to sub-section (1) of Section 5 of the said Act of 2011 may indicate that the amendment is prospective in nature. However,
