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2020 DIGILAW 2367 (KAR)

H. Krishnegowda v. State of Karnataka

2020-12-21

ABHAY SHREENIWAS OKA, S.VISHWAJITH SHETTY

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ORDER : Abhay Shreeniwas Oka, J. 1. Heard the learned Counsel appearing for the petitioner. Issue notice to the respondents. The learned Additional Government Advocate waives notice for the respondents. 2. Considering the narrow controversy involved, the petition is taken up forthwith for final disposal. 3. According to the case of the petitioner, a quarrying lease was granted to him under the provisions of the Karnataka Minor Mineral Concession Rules, 1994 [for short 'the said Rules of 1994']. There was a deemed extension of quarrying lease granted as per Rule 8A of the said Rules of 1994 as amended from 12th August, 2016. By the impugned order dated 30th January, 2020 passed by the Senior Geologist, Department of Mines and Geology, the lease has been purportedly cancelled. 4. The learned Counsel appearing for the petitioner submitted that the principles of natural justice have not been complied with as an opportunity of being personally heard was not granted to the petitioner before passing a drastic order of cancellation of the lease. His submission is that no notice was served as required by the first part of sub-rule (3) of Rule 6 of the said Rules of 1994. His further submission is that even the termination of lease under Rule 45 cannot be made as there is no allegation of commission of offence punishable under Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 [for short 'the said Act, 1957'] 5. The learned Additional Government Advocate submitted that there is a material on record to show that the petitioner has illegally removed substantial quantity of building stones. He has submitted that though from the impugned order it does appear that an opportunity of being heard was not granted to the petitioner, this is a case where sufficient materials are there on record to establish the breaches by the petitioner. 6. We have considered the submissions. There are two provisions under the said Rules of 1994, under which there can be cancellation or termination of lease granted under the provisions of the said Rules of 1994. The first is sub-rule (3) of Rule 6 and second is Rule 45 of the said Rules, 1994. Sub-Rule (3) of Rule 6 reads thus: "6. There are two provisions under the said Rules of 1994, under which there can be cancellation or termination of lease granted under the provisions of the said Rules of 1994. The first is sub-rule (3) of Rule 6 and second is Rule 45 of the said Rules, 1994. Sub-Rule (3) of Rule 6 reads thus: "6. General conditions of quarrying lease and licence: (1) xxxx (2) xxxx (3) In case of breach by the lessee or licensee or his transferee or assignees of any of the conditions specified in these rules or in the quarrying lease deed or licence, the Competent Authority shall require by notice in writing the lessee or licencee to remedy the breach within thirty days from the date of notice and if the breach is not remedied within such period the Competent Authority may levy a fine not exceeding ten thousand rupees in the case of non-specified minor minerals and fifty thousand rupees in case of specified minor minerals and the Competent Authority may without prejudice to any other action that may be taken against such lessee, licensee, transferee or assignee determine the lease or licence after providing an opportunity of being heard: [Provided that if a lease or license holder has been imposed with a fine under the above rule for three times during the lease period, the lease or license shall be terminated.]" (underline supplied) 7. In this case, from the statements made in the impugned order, it appears that the allegation is of the petitioner committing breach of the said Rules of 1994 and the terms and conditions of the lease. The condition precedent for exercising power under sub-rule (3) of Rule 6 of the said Rules of 1994 is service of a notice to the lessee calling upon him to remedy the breaches. Moreover, sub-rule (3) of Rule 6 of the said Rules of 1994, expressly requires an opportunity of being heard to be granted to the lessee before cancellation of lease is made. In this case, no opportunity of being heard was granted to the petitioner as can be seen from the impugned order at annexure-A. 8. Rule 45 of the said Rules reads thus: "45. In this case, no opportunity of being heard was granted to the petitioner as can be seen from the impugned order at annexure-A. 8. Rule 45 of the said Rules reads thus: "45. Termination of lease or licence held by an offender: Where the holder of a lease or licence has committed an offence under sub-section (1) of Section 21 of the Act, without prejudice to the penalty for which the holder of a lease or licence is liable under that sub-section, the Competent Authority may, after such enquiry as it deems fit, terminate the quarry lease or licence held by such person." 9. The power of termination under Rule 45 of the said Rules can be exercised only when the lessee is guilty of the commission of offence punishable under Section 21 of the said Act of 1957. The allegations in the impugned order shows that there is no specific allegation of commission of any such offence by the petitioner. 10. Hence, the impugned order cannot be sustained and the same will have to be set aside. Accordingly, we pass the following order: (i) The impugned order at Annexure-A dated 30th January, 2020 is hereby set aside; (ii) This order will not prevent the State Government from taking action of termination or cancellation of lease strictly in accordance with sub-rule (3) of Rule 6 of the said Rules, 1994; (iii) As we are setting aside the impugned order basically on the ground of breach of principles of natural justice, we make it clear that we have made no adjudication on the merits of the allegations made against the petitioner in the impugned order; (iv) The Writ Petition is partly allowed in the above terms.