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2010 DIGILAW 433 (KAR)

ABBOBACKER v. STATE OF KARNATAKA

2010-04-01

B.MANOHAR, V.G.SABHAHIT

body2010
ORDER Heard on the application for vacating stay. 2. Learned Counsel for the applicants in Misc. W. No. 3399 of 2010 who are the respondents 5 to 7 in the writ petition submitted that this writ petition is filed to abuse the process of this Court as the brother of the 1st petitioner-S. Abbas was also granted lease for quarrying sand in respect of Sy. No. 1/1 of Sajipanadu Village, Bantwal Taluk in which respondent 7 has been granted lease for quarrying sand and this petition is filed only to harass respondents 5 to 7 without making all the persons as parties to whom lease has been granted in Sy. No. 1/1. It is his case that persons at S1. Nos. 3 to 6 are the persons to whom lease has been granted for quarrying sand and only respondents 5 to 7 have been impleaded as party respondents and brother of the 1st petitioner-S. Abbas has not been impleaded and •interim order has been obtained on 4-2-2010 restraining respondents 5 to 7 from quarrying sand and transporting the sand. Learned Counsel has referred to us the list produced by him as Annexure-R1 wherein at S1. No. 77 the name of the brother of the 1st petitioner-S. Abbas is shown. Learned Counsel submitted that if at all the leaseholders are to be restrained temporarily as done in the present case, it should be done in respect of the lessee and this petition is filed only to protect the brother of 1st petitioner by restraining other respondents from carrying out quarrying of lease. 3. On the other hand, learned Counsel for the petitioners submitted that petitioners have filed this petition as public interest litigation. 1st petitioner's brother was an allottee and was granted lease for quarrying sand and the same has expired and he is not quarrying sand and transporting the same. Having regard to the impugned notice produced at Annexure-A to the writ petition, petitioners are entitled to continuation of stay in view of the provisions of Rule Karnataka Minor Mineral Concession Rules, 1994. 4. Annexure-A, dated 15-12-2009 which is challenged in this petition clearly shows that despite notice dated 8-12-2009, respondents are quarrying sand and transporting the same. Having regard to the impugned notice produced at Annexure-A to the writ petition, petitioners are entitled to continuation of stay in view of the provisions of Rule Karnataka Minor Mineral Concession Rules, 1994. 4. Annexure-A, dated 15-12-2009 which is challenged in this petition clearly shows that despite notice dated 8-12-2009, respondents are quarrying sand and transporting the same. Learned Government Advocate submitted that since respondents 5 to 7 and Abbas did not comply with the notice dated 8-12-2009 for regulating the transportation of sand and quarrying of sand by respondents 5 to 7 and respondents 5 to 7 are not protected and the Government will expedite the matter before the Adalath in the office of the Deputy Commissioner wherein final decision will be taken regarding continuation of lease. 5. We have given careful consideration to the contentions of the learned Counsel appearing for the parties and scrutinised the petition and application filed by respondents 5 to 7. 6. It is clear from Annexure-A that respondents 5 to 7 and one Abbas, though they are the leaseholders for quarrying sand in Sy. No. 1/1 of Sajipanadu Village were transporting sand indiscreetly and despite the notice issued on 8-12-2009, did not show any cause nor complied with the same and therefore order at Annexure-A has been passed. The said order is in the nature of interim order to stop the transportation of sand and to attend the Adalath in the office of Deputy Commissioner on 24-12-2009 wherein final decision will be taken. The question as to whether this is a public interest litigation or not has to be considered at the time of final hearing. Even otherwise, if respondents 5 to 7 are able to prove that petitioner 1 is brother of Abbas who is not being made a party in this petition and petition is filed to enable Abbas to transport sand by preventing other lessees, this Court can exercise suo motu power and issue necessary instructions and at this stage, having regard to the nature of the order - Annexure-A, we hold that no ground is made out for vacating the stay and stay is entitled to be continued during the pendency of this petition. However, the Deputy Commissioner, Dakshina Kannada, Mangalore is directed to hold the Adalath expeditiously not later than two weeks from the receipt of a copy of this order or production of certified copy of this order, whichever is earlier and take final decision in the matter. He is also directed to prevent not only respondents 5 to 7 but also Abbas who is not made a party to the petition till final decision is taken by the Adalath in the office of the Deputy Commissioner. Accordingly, Misc. W. No. 3399 of 2010 for vacation stay is disposed of. Let a copy of this order be made available to the learned Government Advocate.