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2023 DIGILAW 1036 (KAR)

Jayashree Kirankumar Rathod v. State of Karnataka

2023-08-31

M.G.S.KAMAL, PRASANNA B.VARALE

body2023
JUDGMENT PRASANNA B.VARALE, CJ. - In this writ petition the petitioner has sought for quashment of proceedings of the meeting of the District Sand Monitoring Committee dtd. 20/12/2022 held under the Chairmanship of the Deputy Commissioner-respondent No.4 (Annexure-A) insofar as the same pertains to rejection of the application filed by the petitioner for issuance of a quarry lease and grant of Sand Quarry Licence over her Private Patta Land measuring 5 acres and for further direction to the Deputy Commissioner/respondent No.4 to send the recommendation to the respondent No.2 for grant of Sand Quarry Licence as per Rule 31-Z(1) of the Karnataka Minor Mineral Concession Rules, 1994 (hereinafter referred to as 'KMMC Rules' for short). 2. It is contended by the petitioner that she is the absolute owner of the Patta Land measuring 10 acres situated at Suralikall Village, Hungund Taluka, Bagalkot District. That a technical report dtd. 12/5/2022 had been issued in Form-S by the Geologist and also a recommendation dtd. 1/10/2022 was issued by the Taluk Sand Monitoring Committee. That the said recommendation by the Taluk Sand Monitoring Committee was granted after receiving No Objection Certificates dtd. 5/8/2022 from Revenue Department, 22/8/2022 from Forest Department and 6/8/2022 from Senior Geologist, District Underground Water and dtd. 29/9/2022 by the Assistant Executive Engineer, Government of Karnataka Mining Irrigation and Underground Water Development respectively. That despite the aforesaid recommendations and No Objection Certificates, the District Sand Monitoring Committee in its meeting held on 20/12/2022 rejected the Quarry Licence application dtd. 28/4/2022 filed by the petitioner. Aggrieved by the said rejection, the petitioner is before this Court. 3. Sri. Ravindra Gajanan Kolle, learned counsel for the petitioner referring to the provisions of Sec. 31- Z(1) of the KMMC Rules and the technical report and no bjection certificates referred to herein above submitted that there was no reason or justification in the District Sand Monitoring Committee rejecting the application of the petitioner, as it has no power under the KMMC Rules. He further submits that at the most the District Sand Monitoring Committee could only recommend either granting or rejecting the application. Alternatively, he submitted that even assuming that District Sand Monitoring Committee had indeed issued recommendation for rejection even the such recommendation would be erroneous considering the technical reports submitted by the concerned authority wherein petitioner land is stated not to be situated in the active river course or bed. Alternatively, he submitted that even assuming that District Sand Monitoring Committee had indeed issued recommendation for rejection even the such recommendation would be erroneous considering the technical reports submitted by the concerned authority wherein petitioner land is stated not to be situated in the active river course or bed. Hence, seeks for allowing of the petition. 4. Per contra, Sri S.S.Mahendra, learned Principal Government Advocate for the State referring to Rule 31-R submitted that the District Sand Monitoring Committee is vested with the power to sanction/grant licence. When statute provides power and jurisdiction to sanction / grant it is presumed that it also possesses power to reject. He submits that technical report at Annexure-C in Form-S is not an absolute report and the same is issued subject to conditions. Recommendation made by the Taluk Sand Monitoring Committee upon the No Objection Certificates issued by the Revenue and Forest Departments and Department of Minor Irrigation and Ground Water are without reference to the said conditions contained in the Form-S. Therefore, he submits that petition requires to be rejected. 5. Heard and perused the records. 6. Recommendation made by the Taluk Sand Monitoring Committee upon the No Objection Certificates issued by the Revenue and Forest Departments and Department of Minor Irrigation and Ground Water are without reference to the said conditions contained in the Form-S. Therefore, he submits that petition requires to be rejected. 5. Heard and perused the records. 6. Provisions of Sec. 31-R of KMMC Rules, are extracted hereunder; "31-R. Permission for quarrying and transportation of ordinary sand in river bed.- (1)xxx (2)xxx (3) Powers and Functions of the District Sand Monitoring Committee.- The District Committee shall exercise and perform the following powers and functions, namely.- The District Committee shall.- (i) Meet at least once in two months; ii) take decision to grant, lease or licences for the sand blocks for sand quarrying in accordance with the provisions of these rules; (iii) after considering the recommendations of the Taluk Committee, shall either after accepting or accepting with such modifications as necessary, notify in the Official Gazette the specific sand blocks for grant of quarrying lease through auction for sand quarrying, or reserving for Government works or low income housing or for extraction by Central or State Government or Body Corporation owned or controlled by the Central Government or State Government; (iv) require the successful bidder to obtain quarry plan and other necessary documents or clearance as per Chapter II-A and as per the notification of Ministry of Environment and Forest, Government of India for Environmental Clearance; (v) take necessary steps to regulate illegal storage, and transportation, through its members and Taluk Committee and also through other law enforcement agencies; (vi) direct the lease or licence holder to allocate up to twenty- percentage of the sand extraction to Government works or to low income house construction viz., Ashraya houses at rates not exceeding the Public Works, Ports and Inland Water Transport Department schedule of rates; (vii) follow the orders and guidelines issued by the State Government from time to time; (viii) may reserve any sand block for the purpose of Central Government or State Government Development works and grant, lease or licence, to the contractor or to the authorised assignee of the contractor who has been awarded the contract by the Central Government or State Government Department; (ix) reserve any sand block for the purpose of the extraction and sale of sand to public by any Central or State Government body or Corporation owned or controlled by the Central Government or State Government; (x) have the right of purchasing the sand at Public Works, Ports and Inland Water Transport Department schedule of rates prevailing at the time of such purchase; (xi) establish check post wherever necessary to regulate transportation of sand and make suitable arrangements for patrolling to monitor illegal transportation including river patrol wherever necessary; and (xii) issue directions to officers of Government or of local authorities constituted under the Karnataka Municipalities Act, 1964 or the Karnataka Municipal Corporations Act, 1976 or the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 to assist in any or all works for the implementation of these rules." 7. The aforesaid provisions makes it clear that District Sand Monitoring Committee could make recommendations with regard to sanction/grant of licenses or leases or working permissions and nowhere in the Sec. is there a mention that the said Committee could reject the application/s. 8. At this juncture it is necessary to extract Rule 31-Z which reads; 31-Z. Permission of quarrying and transportation of ordinary sand in or from patta land.- (1) Sand quarrying in patta land shall be prohibited except on the recommendation of the District sand committee with adequate justification, the State Government may permit sand quarrying in specified patta lands, with such terms and conditions as may be specified by the State Government and Enforcement and monitoring guidelines for Sand mining, 2020 issued by the Ministry of Environment, Forest and Climate Change (MOEF and CC) from time to time. (2) Such licence shall be granted after demarcating fifty meters or ten percent of width of the river, whichever is more, from the bank of the river. (3) Patta land sand quarrying shall not be allowed where there is any river bed mining within five kilometers. (4) Sand mining shall be prohibited where the patta land is located within the active river course or bed. (5) The concerned Deputy Director or Senior Geologist shall grant licence after the approval of the State Government and Environmental clearance and approved quarry plan. (6) The maximum period of such licence shall be for five years or till the sand exhaust, whichever is earlier. (7) The licensee in addition to the royalty shall pay fifty percent of the royalty as average additional periodic payment. (8) The licensee shall establish the office, computer facility, electricity supply, closed- circuit camera, weigh bridge and security at the dump yard or stock yard of sand. (9) The licensee shall maintain inward and dispatch register and stock register in the stock yard office and allow for inspection by the official of the District and Taluk sand committee and such other officer authorised in this regard by the State Government." 9. When the document produced herein are perused in the light of the aforesaid provision, the Deputy Director, Mines and Geology and Member Secretary, District Sand Monitoring Committee, Deputy Commissioner and President, District Sand Monitoring Committee, Bagalakot have decided to reject the application purportedly upon the report of the Geologist dtd. 12/5/2022. When the document produced herein are perused in the light of the aforesaid provision, the Deputy Director, Mines and Geology and Member Secretary, District Sand Monitoring Committee, Deputy Commissioner and President, District Sand Monitoring Committee, Bagalakot have decided to reject the application purportedly upon the report of the Geologist dtd. 12/5/2022. Perusal of clause (IV)(4)of the Annexure-C, Form-S would reveal that though a recommendation is made to grant of Quarry License as per KMMC Rules, 1994 of 31-ZA, the same is subject to conditions namely; (i) The road/bridge to be connected to the applied area, NOC to be collected to AEE, Minor Irrigation Department, Bagalkote, (ii) The applied area to be verified that High Flood level information to be collected AEE, Minor Irrigation Department, Bagalkote. 10. This technical report is dtd. 12/5/2022. Perusal of proceedings under Task Force committee held on 1/10/2022 produced at page 50, 51 of the petition, it is seen that following remarks are made; "Upon examining all the above points, an extent of 5 acres may be considered as Buffer Zone out of 10 acres in the said Survey Number and as per the rule 31-Z(4) of KMMC Rules, 1994 and Amendment Rules 2020. Further decided to discuss in the District Task Force". 11. The No objection Certificates that have been issued by the Deputy Conservator of Forests and Senior Geologist District Under Ground Water Development Department, Bagalkot and AEE Minor Irrigation and Under Ground Water Development Department, Sub-Division Bagalkot do not refer to the conditions mentioned in the technical report produced at Annexure-C extracted herein above. Thus, there appears to lack of application of mind by the concerned authority while issuing the said no objection certificates. 12. Be that as it is. As rightly contended by the petitioner the District Sand Monitoring Committee has no authority to reject the application. At the most it can only recommend the appropriate authority to reject the application instead of it by itself taking decision in this regard. It is only on this ground the present petition deserves to be allowed in part. Accordingly, writ petition is allowed in part with the following directions; (i) The decision dtd. At the most it can only recommend the appropriate authority to reject the application instead of it by itself taking decision in this regard. It is only on this ground the present petition deserves to be allowed in part. Accordingly, writ petition is allowed in part with the following directions; (i) The decision dtd. 20/12/2022 arrived at in the proceedings of the District Sand Monitoring Committee which is under challenge in the petition is modified and the same shall be read as; a recommendation by the District Sand Monitoring Committee to reject the application of the petitioner is to be treated as 'recommendation for rejection of the application', by the petitioner. (ii). The submissions of learned Principal Government Advocate Sri.S.S.Mahendra is that, the competent authority to take final decision and as per the Rule 31R of the Karnataka Minor Mineral Concession Rules, 1994, Deputy Director or Senior Geologist would be the competent authority, as the case may be. Accordingly, the said competent authority is directed to take an appropriate decision treating the decision of the District Sand Monitoring Committee held in its meeting dtd. 20/12/2022 as a 'recommendation for rejection of the application', as per the provisions of the Rules applicable to the case, as expeditiously as possible, and not later than eight (8) weeks from the date of the receipt of the copy of this order. (iii). Authenticated copy of this order be forwarded to the learned counsel for the respective parties. Learned Principal Government Advocate be forwarded the copy of this order to the concerned competent authority to take further action. (iv). Before parting, we deem it appropriate to record certain observation of ours; (a) On perusal of the material placed on record show that as per the provisions and particularly the Rules provided for establishment of District Sand Committee and Taluk Sand committee show that there are members from respective departments. Such as, Executive Engineer from PWD Department, Executive Engineer from Irrigation Department and Environmental Officer in charge of Karnataka State Pollution Control Board. (b) In the present matter, perusal of the proceedings of the District Sand Monitoring Committee dtd. 20/12/2022, a copy of the same is placed on record at Annexure-A show that the Environmental Officer working in Karnataka State Pollution Control Board, Bagalkot, attended the meeting as a member. (c) The proceedings further refers to an observation in respect of report of the Geologist. 20/12/2022, a copy of the same is placed on record at Annexure-A show that the Environmental Officer working in Karnataka State Pollution Control Board, Bagalkot, attended the meeting as a member. (c) The proceedings further refers to an observation in respect of report of the Geologist. Now, if the composition of the Committee includes the members in respective fields and admittedly these members possess at least a preliminary expertise in the respective fields, it is expected that these members must show their active participation in the process of the proceedings by submitting their independent opinion, certainly if such independent opinion is expressed by these members would be the part of the proceedings and the District Sand Monitoring Committee at the time of recommendation may have the benefit. Opinion being expressed by such expertise members in the field and recommendation so provided by the committee would a wholesome exercise and it can serve the purpose and object of the composition of the committee. (d). We hope and trust that the concerned committee and the State Government would consider our observations in its right spirit. At request of learned Principal Government Advocate, copy of this order be forwarded to the Secretaries of respective departments.