Abhinandan Stone Crushers v. State of Karnataka, Rep. By Its Chief Secretary
2018-06-21
DINESH MAHESHWARI, KRISHNA S.DIXIT
body2018
DigiLaw.ai
ORDER : KRISHNA S. DIXIT, J. 1. In this writ petition, petitioner in substance has sought for a writ of mandamus to the 3rd respondent -Deputy Commissioner cum Licensing Authority to extend the validity period of his Stone Crusher License dated 04.04.2013 from 31.03.2016 to 31.03.2018 and in the alternative, to renew the said license for a period of five years effective from 01.04.2018 till 31.03.2023 in view of the Karnataka Regulation of Stone Crushers (Amendment) Act, 2013. 2. After service of notice, the respondents have entered appearance through the learned Additional Government Advocate Sri. Vikram Huilgol and have filed the Statement of Objections on 21.03.2018 resisting petitioner’s contentions and the claim. 3. The brief facts stated by the petitioner are:- (a) Petitioner was issued with the Stone Crusher License bearing No.CRL 20 MIN CR 162/2013-14 dated 04.04.2013 under the provisions of Section 5 of the Karnataka Regulation of Stone Crushers Act, 2011 (‘the Act’) over an area of 1 A – 20 G of land in Sy.No.118 (Old No.43) of Chikkanagavalli village, Chikkaballapura Taluk and District. The said license was for a period of approximately three years from the date of issue i.e., 04.04.2013 and the said period was to come to an end on 31.03.2016. (b) Petitioner filed an application for renewal of the said license on 06.01.2016 and despite availability of joint inspection report and all other clearances, the same was not considered. In an identical set of facts in W.P.No.11772/2017, a direction has been issued by the Division Bench of this Court on 20.03.2017 to the respondent authorities to consider the application for renewal in accordance with law. (c) Now that, section 5 of the Act having been amended with effect from 26.12.2013, inter alia, extending the validity period of license from 3 years to 5 years, the respondent authorities ought to have issued an order or corrigendum to the effect that the validity period of petitioner’s license is deemed to be 5 years. This has not been done and, therefore, the petitioner is before this Court. 4. The brief facts stated by the respondent authorities are:- (a) It is true that the petitioner was issued license dated 04.04.2013 to run the stone crusher unit for a period of three years. The license specifically states that it would be valid upto 31.03.2016.
This has not been done and, therefore, the petitioner is before this Court. 4. The brief facts stated by the respondent authorities are:- (a) It is true that the petitioner was issued license dated 04.04.2013 to run the stone crusher unit for a period of three years. The license specifically states that it would be valid upto 31.03.2016. This license was granted under the provisions of Section 5 of the Act when the period of license was statutorily fixed as three years i.e., during the pre-amended regime. (b) The Act was amended with effect from 26.12.2013 i.e., long after petitioner was granted license and that the amended Section 5 prescribes five years as the period of validity of the license. The said provision is prospective in operation and further, in the absence of a deeming clause applicable to the licenses granted prior to the amendment, the validity of the petitioner’s license would be three years that ended on 31.03.2016. (c) Petitioner’s application dated 06.01.2016 is also liable to be rejected as the same is not filed three months before the expiry of the license as prescribed by Section 4 of the Act. Thus, the petitioner ought to have filed his renewal application on or before 31.12.2015, the license being valid till 31.03.2016, there being no provision for condonation of delay. (d) Petitioner license came to an end on 31.03.2016 and despite that, petitioner is found to be carrying on the crushing activity which is in violation of Section 3 of the Act and Rule 3A of Karnataka Regulation of Stone Crushers Rules, 2012, the provisions of Mines and Mineral (Development and Regulation) Act, 1957 and Karnataka Minor Mineral Concession Rules, 1994. Therefore, a criminal case in FIR No.340/2017 is registered on 25.10.2017 in the jurisdictional police station. (e) There had been several complaints from the villagers with respect to stone crushing units and quarrying leases in Chikkanagavalli village and, therefore, after thorough deliberation, a decision is taken by the Deputy Commissioner, Chikkaballapur that no renewal application would be received till after an expert study as to the pollution level in this area is undertaken and its findings are examined. 5. Having heard the learned counsel for the petitioner and the learned Additional Government Advocate, we are of the considered opinion that the writ petition is devoid of merits both on law and facts.
5. Having heard the learned counsel for the petitioner and the learned Additional Government Advocate, we are of the considered opinion that the writ petition is devoid of merits both on law and facts. Though the matter lies in a narrow compass, learned counsel on both the sides have advanced elaborate arguments. 6. Admittedly, the petitioner was granted the license on 04.04.2013 for a period of three years i.e., 31.03.2016. This grant was made under the provisions of unamended Section 5 of the Act which read as under: “5. Term of license.-A license shall be valid for a period of three years and may be renewed for a further period of three year subject to fulfillment of the conditions laid down under this Act or the rules made thereunder. Explanation:-Where a license has been granted in the middle of a year, for the purpose of computing the term of license, the remaining part of the year shall be deemed to be a year.” 7. The Act was amended with effect from 26.12.2013 prescribing “five years” as the validity period of license. The amended section reads as under: “5. Term of license.-A license shall be valid for a period of five years and may be renewed for a further period of five years subject to fulfillment of the conditions laid down under this Act or the rules made thereunder. Explanation.-Where a license has been granted in the middle of a year, for the purpose of computing the term of license, the remaining part of the year shall be deemed to be a year.” 8. Learned counsel for the petitioner argues that this amendment is retrospective in operation since the same is by “substitution”. Therefore, he submits that the validity period of his license should be deemed to have been five years and not three years. In other words, he says, the period of licences which have been granted during the pre-amendment regime shall stand enlarged from three years to five years automatically. In support of his submission, he presses into service the decisions in the case of VIJAYKUMAR SHANKARAYYA SARDAR vs. STATE OF KARNATAKA: ILR 1993 KAR 2586 (DB), an unreported Judgment of this Court made on 05.01.2016 in W.P.Nos.37347-37349/2009 (LR-RES) and another unreported Judgment of Division Bench of this Court made on 16.03.2016 in W.P.Nos.12327-12331/2016 (GM-MMS). 9.
In support of his submission, he presses into service the decisions in the case of VIJAYKUMAR SHANKARAYYA SARDAR vs. STATE OF KARNATAKA: ILR 1993 KAR 2586 (DB), an unreported Judgment of this Court made on 05.01.2016 in W.P.Nos.37347-37349/2009 (LR-RES) and another unreported Judgment of Division Bench of this Court made on 16.03.2016 in W.P.Nos.12327-12331/2016 (GM-MMS). 9. We are unable to agree with the above submission since it militates against a cardinal principle of construction of statutes that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. “nova constitutio futuris formam imponere debet non praeteritis” – a new law ought to regulate what is to follow, not the past vide principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p.438 . This principle extends to the amendments to the statutes when they relate to substantive rights. There is nothing in the text or context of the amended provision that indicates that the Parliament intended it to be retrospective. Our view is further strengthened by the expression “shall be valid” employed in section 5 itself. 10. The first two decisions namely VIJAYKUMAR SHANKARAYYA SARDAR vs. STATE OF KARNATAKA: ILR 1993 KAR 2586 (DB), and unreported Judgment of this Court made on 05.01.2016 in W.P.Nos.37347-37349/2009 (LR-RES) cited by the learned counsel for the petitioner relate to the amendments made to the Karnataka Land Reforms Act, 1961 wherein, the subject matter, the text and context of the provisions that had fallen for the consideration of this Court apparently are much different from that of the provisions of the Act we are now considering. In the said rulings, this Court was construing the amendment to the provisions of the Karnataka Land Reforms Act, 1961 in the light of the definition of the expression “Amendment Act” given in Section 2 (4) of the said Act itself. The reliance on these Rulings is ill-founded. 11. The third unreported Judgment of Division Bench of this Court made on 16.03.2016 in W.P.Nos.12327-12331/2016 (GM-MMS) although relates to 2013 Amendment made to Karnataka Regulation of Stone Crushers Act, 2011, still in our considered view, it does not lay down any ratio as a binding rule of conduct inasmuch as it is a view expressed, without analyzing the statutory provisions. Paragraphs 2, 3 and 4 of the same read as under: “2.
Paragraphs 2, 3 and 4 of the same read as under: “2. These are the writ petitions, in substance, seeking for extension of time for running stone crusher units up to march 31, 2018, on the strength of the amendment to the Karnataka Regulation of Stone Crushers Amendment Act, 2011 (for short ‘the said Act), as amended in 2013. 3. Under the original provision of Section 5 of the said Act of 2011, a license was to be valid for a period of three years, which has, since, been amended to five years. 4. Therefore, Mr.Ravindar G.Kolle, learned advocate appearing for the writ petitioners, is right that the writ petitioners are entitled to continue their stone crusher units upto March 31, 2018.” 12. Further, as rightly pointed out by the learned Additional Government Advocate, even if the amendment to Sections 2 and 5 of the Act is assumed to be retrospective in operation, still it would not advance the case of the petitioner because as on that date, i.e., 26.12.2013, his application for grant of license was not pending, the same having been admittedly disposed off on 04.04.2013 itself. His submission is also supported by the decision of the Apex Court in the case of State of Kerala and Another V/s B. Six Holiday Resorts Private Limited and Others reported in (2010) 5 SCC 186 . Para 22 of the said judgment reads : “22. ……. Where the applicant for licence does not have a vested interest for grant of licence and where grant of licence depends on various factors or eligibility criteria and public interest, the consideration should be with reference to the law applicable on the date when the authority considers applications for grant of licences and not with reference to the date of application.” 13. Learned Additional Government Advocate is right in his submission that where the Legislature intends to alter the period of licenses that are already granted, ordinarily a deeming provision would be introduced to that effect. For instance, Section 8-A of Mines and Minerals (Development and Regulation) Act, 1957 as amended by Act No.10 of 2015 with effect from 12.01.2015 reads as under: “8-A. Period of grant of a mining lease for minerals other than coal, lignite and atomic minerals.-(1) The provisions of this section shall apply to minerals other than those specified in Part A and Part B of the First Schedule.
(2) On and from the date of the commencement of the Mines and Minerals (Development and Regulation) (Amendment) Act, 2015, all mining leases shall be granted for the period of fifty years. (3) All mining leases granted before the commencement of the Mines and Minerals (Development and Regulation) (Amendment) Act, 2015 shall be deemed to have been granted for a period of fifty years.” [Other provisions of this Section are omitted as being not relevant for our consideration]. 14. We have carefully perused the provisions of the Act and more particularly, the amended Sections 2 and 5 of the Act and we find that the deeming provision which the learned counsel for the petitioner wants us to see through, is conspicuously absent. Deeming being a legislative action, we are afraid, the same cannot be provided by way of interpretative process. Therefore, this contention of the learned counsel fails. 15. The next contention of the learned counsel for the petitioner that the application for renewal filed on 06.01.2016 even otherwise is pending consideration and that the same having been recommended by statutory authorities, ought to be granted by the respondents, does not merit acceptance inasmuch as the same has not been filed three months prior to the expiry of the license i.e., 31.03.2016 as prescribed by section 4 of the Act, which reads as under: “4. Application for license.-(1) Every application for grant or renewal of license to carry on the business of stone crushing under this Act shall be made to the licensing authority in such form, in such manner, accompanied by such documents and such fees as may be prescribed. An application for renewal of license shall be made to the licencing authority three months before the expiry of the license. (2) xxxxxxx” 16. Thus, the petitioner, if he wanted renewal, ought to have made the application on or before 31.12.2015 since his license was valid till 31.03.2016. Going by the language of Section 4, the said provision appears to be mandatory. Further, the Parliament in its wisdom has made no provision for condonation of delay. Therefore, petitioner’s application for renewal does not merit consideration. 17.
Going by the language of Section 4, the said provision appears to be mandatory. Further, the Parliament in its wisdom has made no provision for condonation of delay. Therefore, petitioner’s application for renewal does not merit consideration. 17. Yet another reason to deny renewal of license to the petitioner is that on the complaints/representation of the villagers about the menace of pollution allegedly caused by stone crushers and mine operators, the respondent – Deputy Commissioner has taken a decision not to receive any application for renewal till after expert study of pollution levels is made. 18. In the circumstances mentioned above, we do not find any merit in this writ petition and therefore, the same stands dismissed, with liberty reserved to the petitioner to seek grant of fresh license, if law permits. No costs.