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2003 DIGILAW 557 (KAR)

G. RAJASHEKAR v. STATE OF KARNATAKA

2003-07-16

R.GURURAJAN

body2003
R. GURURAJAN, J. ( 1 ) MATTER is listed for orders. Two impleading applications are filed in addition to the one for vacating the stay. All the applications are taken up together for consideration. Petition is also taken up for final disposal with consent of the learned counsel. ( 2 ) LEARNED counsel on either side argued both on the I. As. as well as on the main matter to save time. ORDER ON I. A. NO. 1 FOR IMPLEADING ( 3 ) ONE M/s. Mineral Enterprises Private Limited seeks to come on record in the given set of circumstances. According to the affidavit, the impugned lands measuring 515. 98 acres are notified in terms of Notification dated 15-6-1999. The Government without following the procedure prescribed in law decided to approve the grant of mining lease in favour of one of the aspirants, and, that was challenged by the petitioner in WP No. 31728 of 2001. A writ appeal was filed, and, in the writ appeal the order of the learned single Judge was confirmed with slight modification. In these circumstances, the impleading applicant says that it has some interest in the matter, and, therefore wants to come on record. ( 4 ) SAME was opposed by filing objections. In the objections, it is stated that the impleading applicant cannot come on record and that the application filed by the impleading applicant in terms of Annexure-Z suffers from various errors. ( 5 ) SRI G. S. Vishweshwara, learned counsel for the petitioner would say that a reading of the application in terms of Annexure-Z would show that the petitioner is not clean in submitting his affidavit. He says that his only prayer in this petition is for a direction for providing lands on account of losing certain lands in the given case. Sri D. L. N. Rao, learned counsel for the applicant would say that the error of date in the application may be a mistake and that should not come in the way of the applicant coming on record in the interest of justice. ( 6 ) AFTER hearing the learned counsel, I am of the view that in the light of the impleading applicant having some interest in the matter in terms of the earlier proceedings, he cannot be said to be a foreigner in this case. ( 6 ) AFTER hearing the learned counsel, I am of the view that in the light of the impleading applicant having some interest in the matter in terms of the earlier proceedings, he cannot be said to be a foreigner in this case. He has some interest in the matter in terms of the earlier proceedings and in terms of the affidavit. A mere error in the application does not by itself vitiate the impleading application filed by the applicant. ( 7 ) IMPLEADING application is therefore allowed. Petitioner is directed to amend the petition by impleading the present impleading applicant as Respondent No. 4 order ON I. A. NO. III FOR IMPLEADING ( 8 ) THERE is one more application by Sri Chidanandaiah, learned counsel for the applicant in IA No. III. In the said application applicant Babanna is seeking to come on record in the case on hand. According to the affidavit, on an earlier occasion the impugned lands were granted in his favour and the said grant was set aside at the instance of M/s Mineral Enterprises Private Limited in WP No. 19291 of 2001. An appeal was filed. In the appeal, the order of the learned single Judge was confirmed with certain modifications. Babanna also made an application in respect of these lands. Therefore, he wants to come on record. Same is opposed. ( 9 ) HEARD the learned counsel for the parties. ( 10 ) IN the light of the earlier proceedings and for the reasons mentioned in the impleading application, I deem it proper to allow this application also in the given set of circumstances. Petitioner is directed to amend the petition and to implead the applicant as Respondent No. 5. ORDERS ON THE MERITS OF THE MATTER ( 11 ) HEARD the learned counsel for the parties on the merits of the matter. Since hearing of the IAs for vacating the stay is as good as hearing on hearing the main matter, matter is heard for final disposal with consent of the learned counsel. ( 12 ) PETITIONER Rajashekhar states that a mining lease was granted to him in terms of the lease dated 31-3-1986. He is operating the area in question for a period of 13 years from the date of grant to an extent of 5. 50 acres, and in the rest of the area, petitioner has no control. ( 12 ) PETITIONER Rajashekhar states that a mining lease was granted to him in terms of the lease dated 31-3-1986. He is operating the area in question for a period of 13 years from the date of grant to an extent of 5. 50 acres, and in the rest of the area, petitioner has no control. He was prevented by the farmers and the Department of Forest in the rest of the area resulting in non-mining in terms of the lease. He made an application in terms of Annexure-C. The governmental authorities have expressed their inability to get the unauthorised farmers evacuated from the given piece of land Petitioner made attempts to get them evacuated with the help of the Mines and Geology Department. The Deputy Commissioner in terms of his letter dated 24-2-2001 has stated that certain areas granted to the petitioner are under unauthorised cultivation. Petitioner has filed the said Endorsement issued by the Deputy Commissioner in terms of Annexure-F. A Senior Geologist wrote a letter to the Director of Mines and Geology stating that the Assistant Geologist of Tumkur visited the mining lease area of the petitioner and submitted his report. It is stated in the report that the mining lease area granted to the petitioner has been transferred to the Forest Department and that the petitioner could not carry on any mining operation. ( 13 ) PETITIONER states that in view of disbursement of certain mining lease to the poor farmers, and has been assigned to the Forest Department, petitioner is entitled for an alternative land towards the lost land on the facts and circumstances of this case. Petitioner refers to various cases in support of this prayer. Petitioner is seeking for a direction to the first Forest Department to grant 285 acres of land in lieu of his lost area in respect of his ML No. 2011, Keeping in view the precedents. ( 14 ) THE State Government entered appearance and opposes the prayer. Implead-ing applicants have filed objections for vacating the stay, and, in the affidavit filed in their support it is stated that these lands are notified and that they are interested in the lands, and that notified lands cannot be granted in terms of the mining laws. ( 14 ) THE State Government entered appearance and opposes the prayer. Implead-ing applicants have filed objections for vacating the stay, and, in the affidavit filed in their support it is stated that these lands are notified and that they are interested in the lands, and that notified lands cannot be granted in terms of the mining laws. ( 15 ) SRI G. S. Vishweswara, learned counsel for the petitioner, while reiterating the facts and grounds, contends before me that for no fault of his client, he has lost lands on account of an act not attributable to him. He states that there are precedents in the matter of providing lands towards the lost land in identical circumstances. He wants similar treatment to the petitioner. ( 16 ) PER contra, learned Government Pleader opposes the same. Sri D. L. N. Rao, learned counsel for the impleading applicants invites my attention to the law on the mining lease to contend that there are no provisions available to the Government to provide notified areas to the leaseholder who has lost certain lands. He says that in the absence of any power available under the statute, no direction can be given in the given circumstances. He has invited my attention to certain averments made by the petitioner for vacating stay. He states that the petitioner was aware of the earlier litigation between this impleading applicant and one Babanna. He has specifically invited my attention to the averments made in para 5 of the objection filed to I A No. II for vacating stay to contend that the application was made on 14-11-2000 in the matter of grant of land in lieu of the lost mining area. Same has been rejected in terms of an Endorsement dated 30-3-2001. Learned counsel points out that the without challenging the said Endorsement, the present petition is filed. According to the learned counsel, no mandamus can be issued in the given circumstances. ( 17 ) PETITIONER has filed an application for further hearing. He has engaged Sri N. P. Amrutesh, learned counsel, to argue the case on his behalf. Memo of retirement is filed by Sri G. S. Vishweshwara. Matter was posted on 11-6-2003 and the matter was adjourned for further submissions. ( 17 ) PETITIONER has filed an application for further hearing. He has engaged Sri N. P. Amrutesh, learned counsel, to argue the case on his behalf. Memo of retirement is filed by Sri G. S. Vishweshwara. Matter was posted on 11-6-2003 and the matter was adjourned for further submissions. Sri Amrutesh, learned counsel on the next date of hearing argued in the light of the additional statement of facts with regard to non-mentioning of certain details in terms of para 10 of the additional statement. Learned counsel referred to certain other averments made against the impleading applicant. ( 18 ) AFTER hearing the learned counsel, I have carefully perused the material on record. What is clear to me is that the petitioner was granted mining lease in terms of Annexures A and B, petitioner seems to have lost certain lands on account of encroachment and on account of illegal occupation of the area by others. It was in these circumstances the petitioner has made a representation to consider its case with regard to the lost area. That was not considered, and later he filed a writ petition in this Court in Writ Petition 38336 of 2001. A direction was issued by this Court to consider his representation. Thereafter, the same was rejected in terms of the averments in the objections filed by the petitioner to I. A. No. II for vacating stay Petitioner made another application to consider his representation for rectification of the sketch of the mining lease to the adjacent land as per the sketch enclosed and for the recommendation of the Central Government as per S. 5 (2) of the Mines Minerals (Development and Regulation) Act, 1957. It is seen that the petitioner made a representation on 14-11-2000 as per Annexure-G seeking to regularise the sketch in lieu of the lost area in the newly published area. Since that representation was not considered he has filed a writ petition WP No. 38336 of 2001 as mentioned earlier. The writ petition was disposed of on 18-10-2001. It appears from the affidavit filed by the petitioner that the application dated 14-11-2000 was rejected in terms of an Endorsement dated 30-3-2001. That was not brought to the notice of this Court when the order was passed in WP No. 38336 of 2001. Even in the present petition petitioner has not referred about this endorsement dated 30-3-2001 anywhere. It appears from the affidavit filed by the petitioner that the application dated 14-11-2000 was rejected in terms of an Endorsement dated 30-3-2001. That was not brought to the notice of this Court when the order was passed in WP No. 38336 of 2001. Even in the present petition petitioner has not referred about this endorsement dated 30-3-2001 anywhere. The said Endorsement is not challenged. Now the petitioner wants a direction by way of a writ of mandamus to consider and provide 285 acres in lieu of lost area petitioner's counsel is unable to show any provision of law providing any such notified lands in lieu of the lost area as contended by the petitioner. In fact, it is rightly pointed out to me by Sri D. L. N. Rao that in terms of Chapter VIII and in particular Rule 59 of the Mineral Concession Rules, 1960, availability of areas for grant is notified in the notification and such notified lands cannot be granted to the petitioner towards the lost area in the absence of any provision in such cases. ( 19 ) IN the case on hand, these lands are notified and are directed by this Court in the matter of consideration of applications in terms of the Division Bench Judgment in WA No. 2259 of 2002 disposed of on 17-4-2002. In the light of the Notification and in the light of the Division Bench order, and in the absence of any legal right in favour of the petitioner, petitioner cannot seek a writ of mandamus as sought for in the given circumstances. Petitioner has filed, this petition without challenging the earlier endorsement and without any legal right in his favour. A mandamus can be issued only to enforce a legal right available to a petitioner. No such legal right is shown to me in terms of the Mineral Concession Rules by the petitioner in this case. Therefore, petitioner cannot be granted any prayer in the case on hand. ( 20 ) THE petitioner's contention that in identical circumstances lands have been granted is also to be noticed by this Court. Petitioner would refer to a notification in favour of Mr. B. R. Amar Singh's area notification, in which case lands were not notified as I see from the averments made in para-9 of the petition. ( 20 ) THE petitioner's contention that in identical circumstances lands have been granted is also to be noticed by this Court. Petitioner would refer to a notification in favour of Mr. B. R. Amar Singh's area notification, in which case lands were not notified as I see from the averments made in para-9 of the petition. In Deccan Mining Syndicate Private Limited, there was an unauthorised mining outside the leased area. In the case of M/s. Pallava Granite Industries, petitioner states that he does not know under what circumstances the said area was granted. In the case on hand, petitioner states that the grant is made in similar circumstances and is without any details. In the case of M/s. Indian Rocks, it stands on a different footing, since, in that case the lands that were granted was in the forest land, and, since no forest land can be granted, an alternative area was granted by the State. Therefore, a prima facie reading of the petition and the affidavit would show that the facts of this case stand totally on a different footing. Petitioner without providing sufficient particulars is trying to compare himself with others in the matter Equal treatment is available in equal circumstances, and not in unequal circumstances. No case of equality is proved by providing equal circumstances by the petitioner in the case on hand. ( 21 ) IN this petition, the relief sought is as under : (I) issue a writ of mandamus, or any other direction to the 1st respondent to grant 285. 00 acres in lieu of his lost area in respect of his M. L. No. 2011, keeping in view of the precedents, that are placed before this Hon'ble Court in the interest of equity and justice; (ii) issue a writ of mandamus directing and the first respondent to consider and grant adjacent area of 220 acres in Sy. Nos. 11 and 12 of the Gollahalli village, Chikkanayakanahalli Taluq, Tumkur District as recommended for grant as compensatory and alternative area, by the 2nd respondent vide his letters dated 27-11-2002 No. IND/cr/63/2001-02 and No. IND/cr/63:2001-2002 respectively in lieu of ML No. 2011, in the interest of equity and justice, and further direct the 1st respondent to implement the same, in the interest of equity and justice. " ( 22 ) IMPLEADING applicant has stated that the petitioner is guilty of suppression of material facts. " ( 22 ) IMPLEADING applicant has stated that the petitioner is guilty of suppression of material facts. According to him, petitioner is aware of the notification and the proceedings in this Court. He has suppressed the same. He further says that the request for alternative area is subsequent to the Notification at Annexure-R1. In fact, the Director of Mines and Geology has given an endorsement stating that there is no provision of such consideration. ( 23 ) PETITIONER has made a representation and therein he has referred to a Government Notification dated 15-6-1999, an order of this Court dated 18-10-2001 in WP No. 38336 of 2001, the Hon'ble Chief Minister's Direction dated 4-2-2002, a letter of the Hon'ble Minister for Mines and Geology dated 8-4-2002, a reply letter dated 28-5-2002, Deputy Commissioner's NOC Letter dated 27-11-2002 and to a letter of the Secretary 19-11-2002. In the representation, petitioner has stated that this Court in WP No. 38336 of 2001 has granted a relief in his favour by directing the authorities to consider his case for an alternative area in lieu of the present mining area keeping in view other precedents within two months. A reading of the order of this Court dated 18-10-2001 in WP No. 38336 of 2001 would show that no such direction was issued by this Court. Representation is factually incorrect in so far as this aspect of the matter is concerned. Petitioner refers to a direction issued by the Hon'ble Chief Minister for grant of an alternative area in this case on 4-2-2002. A direction was also made by the Hon'ble Minister for Mines and Geology to the said effect. He refers to a direction by this High Court to the Secretary, Mines and Geology to consider the case of the petitioner keeping in view the precedents. The last so-called directions are factually not seen in the order dated 18-10-2001. The original file was made available to me. In the original file, I see that Sri G. S. Basavaraj, Member of Parliament has addressed a letter to the Chief Minister on 23-1-2002. In the said letter the Member of Parliament has stated that in his Constituency (Chikkanayaka-nahalli Taluk, Hosahalli and Kodihalli villages) revenue officials are troubling the villagers on the ground that the said land is granted to one Rajashekhar, the present petitioner. In the said letter the Member of Parliament has stated that in his Constituency (Chikkanayaka-nahalli Taluk, Hosahalli and Kodihalli villages) revenue officials are troubling the villagers on the ground that the said land is granted to one Rajashekhar, the present petitioner. The agriculturists have got the Khatha done in their favour two years before. In the circumstances, he has requested the Chief Minister to provide an adjacent land to the petitioner since eviction of tenant is not possible. The Chief Minister's Secretariat in terms of its letter dated 4-2-2002 issued an endorsement stating that the Chief Minister has passed the order ordering : (Vernacular matter omitted) the note would show that "by providing an alternate land agriculturists would be helped in the matter. " The Minister for Mines and Geology has directed for further action in the matter. It is seen that recently the Deputy Commissioner has addressed a letter to the Secretary, Mines and Geology in this regard. He has stated that the Revenue Department has no objection with regard to grant of lands to the petitioner. To my shock, it is not noticed anywhere that the notified lands cannot be granted in favour of the petitioner in terms of the mining laws. In fact, the Chief Minister has not stated that these lands must go to the petitioner. On the other hand, the Chief Minister has only stated that "in the light of grant of alternate land to the licence holder, the agriculturists could be helped in the matter. " That does not mean that a direction was issued by the Chief Minister for grant of this land as sought to be made out by the petitioner. The petitioner while making his representation has made it appear as though there is a direction by the Chief Minister in this regard. It is rather unfortunate that the Deputy Commissioner without even noticing the relevant provisions of law and non-availability of power to grant a notified land has chosen to write a letter even during the pendency of the petition to the Secretary to grant the land. All these materials would go to show that the petitioner is not clean in his approach in the matter of grant of land to him by his incorrect statement in the representation and suppression of material facts. All these materials would go to show that the petitioner is not clean in his approach in the matter of grant of land to him by his incorrect statement in the representation and suppression of material facts. It appears that he is trying his level best at various levels in getting these lands allotted to him without there being any legal right in his favour. ( 24 ) ONE more aspect has to be noticed by this Court. When the original file was placed before me, I went through the file to get satisfied myself with regard to the grievance of the petitioner. In the original file, I noticed an order dated 13-3-2002 passed in WP No. 12435 of 2002. The said Writ Petition file is made available to me. That petition has been filed by this very petitioner. In the light of this order, I directed the office to place before me the said file in WP No. 12435 of 2002. That petition is filed by this very petitioner, and, in the said petition, this very relief in similar terms is prayed for by the petitioner. Even the annexures and the averments to a certain extent are same or similar. In the said writ petition by an order dated 13-3-2002 this Court has refused to grant a direction in favour of the petitioner. Writ Petition was rejected. In fact this Court has passed the following order :"the petitioner in this case has sought for a direction to R1 to consider the prayer of the petitioner for an alternative area in the notified area as per Annexure-D and not to grant any mining lease in favour of any third party till the implementation of the order passed by this Court in WP No. 38336/2001 dated 18-1-2001. 2. In the writ petition filed by the petitioner this Court has directed the respondent to consider the representation given by the petitioner and to pass appropriate order within two months from the date of receipt of the copy of the order in WP No. 38336 of 2001. 3. The grievance of the petitioner is that even though there is a direction by this Court the 1st respondent has not considered the representation. 3. The grievance of the petitioner is that even though there is a direction by this Court the 1st respondent has not considered the representation. If the respondent has not considered the representation as directed by this Court, the remedy of the petitioner is on the contempt side and not by way of filing another writ petition fork the same relief. Therefore, the prayer for direction to consider his representation is liable to be rejected. 4. The petitioner neatly seeks for a direction not to grant any mining lease in favour of any third party till his representation is considered. If any application for grant of mining lease is considered and appropriate order is passed by the State Government, it is open for the petitioner to challenge the same if it is not in accordance with law. Therefore, at this stage, no such direction could be issued. For the reason stated above, writ petition is rejected. "when the petitioner has filed a similar petition with a similar prayer and if that petition has been rejected by this Court, it is understandable to me as to how the very petitioner by changing his counsel can file the present petition for almost same or similar relief/s. To my shock and surprise, there is no reference to the earlier W. P. No. 12435/2002 and the findings of this Court in the present petition. There is total suppression of material facts on the part of the petitioner. On seeing this, I again posted the case before Court for further hearing. I pointed out the same to the learned counsel for the petitioner. All these facts which have been narrated by me in this paragraph would show that the petitioner is not clean in his approach and he has not approached this court with clean hands. Such conduct is not to be encouraged by this Court. ( 25 ) I have carefully gone through the averments in para 10 of the additional statement as argued by the learned counsel for the petitioner. Averments therein are not convincing with regard to non-disclosure of certain material facts at the time of filing of the petition. Petitioner is trying to get over non-disclosure by putting blame on the counsel. I also see that the petitioner has chosen to make certain averments with regard to consideration of the case of other respondents. Averments therein are not convincing with regard to non-disclosure of certain material facts at the time of filing of the petition. Petitioner is trying to get over non-disclosure by putting blame on the counsel. I also see that the petitioner has chosen to make certain averments with regard to consideration of the case of other respondents. He has also made certain averments against the concerned Minister in the petition. I do not want to go into these aspects of the matter in the light of the petitioner having no legal right in terms of my earlier findings. ( 26 ) THE additional prayer also is not required to be considered in this petition in the light of my earlier findings against the petitioner. ( 27 ) IN fact, on the very first day, noticing the Government documents having been annexed in this petition by the petitioner, directed the Secretary to file an affidavit. An evasive affidavit/reply is filed Mining rights are valuable in character and they are regulated by the statutory provisions. Nobody has any right for grant without a corresponding legal right or without following the legal procedure in terms of the mining laws. What is shocking to me is that the petitioner seems to have free access in the Mining Department and is able to get all several internal correspondence and internal recommendations in his favour. Time has come for this Court to remind those in power to be careful in protecting the State's mineral interest as otherwise the valuable mineral is lost because of lapse on the part of the Department. ( 28 ) LOOKING from any angle, petition deserves to be dismissed and I do so in the case on hand. ( 29 ) I deem it proper to observe that notwithstanding this order, liberty is reserved to the petitioner to work out any other available remedy with regard to loss of lands in accordance with law. The findings in this judgment are confined only with regard to discretionary grant of land by the Government out of the notified lands. ( 30 ) IN the normal circumstances, I would not have awarded costs. but, the given set of facts compel me to award exemplary costs to arrest the tendency of filing such petitions after petitions suppressing material facts. Purity of justice require clean hands. To maintain purity, Courts have to be strict in these matters. ( 30 ) IN the normal circumstances, I would not have awarded costs. but, the given set of facts compel me to award exemplary costs to arrest the tendency of filing such petitions after petitions suppressing material facts. Purity of justice require clean hands. To maintain purity, Courts have to be strict in these matters. Strictness can be in one way by awarding exemplary costs. In the circumstances, I deem it proper to award costs of Rs. 15,000. 00 payable by the petitioner within two weeks from today. The said cost is payable to the Chief Minister's Relief Fund. Ordered accordingly. Petition dismissed. --- *** --- .