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- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2021
PRESENT
THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.14212 OF 2020 (GM-MM-S)
BETWEEN: MAHABALESHA MINING INDUSTRIES NO.B-45, CANTONMENT OLD MARKET ROAD BELLARI - 583 114 REPT. BY ITS MANAGING PARTNER SYED KABEER HASHMI S/O SYED MUNEER HASHMI AGED ABOUT 50 YEARS ... PETITIONER (BY SHRI D.R.RAVISHANKAR, ADVOCATE FOR LEX NEXUS, ADVOCATES)
AND: 1. THE STATE OF KARNATAKA
REPT. BY ITS ADDL. SECRETARY
DEPARTMENT OF FOREST, ECOLOGY,
ENVIRONMENT
VIDHANA SOUDHA
DR.B.R.AMBEDKAR VEEDHI
BENGALURU - 560 001
THE DIRECTOR
DEPARTMENT OF MINES & GEOLOGY
KHANIJA BHAVAN
RACE COURSE ROAD
BANGALORE - 560 001
THE SENIOR GEOLOGIST
DEPARTMENT OF MINES & GEOLOGY
- 2 -
NO.1948/1, FRONT OF ANJENIYA TEMPLE
VIDYANAGAR
DAVANAGERE - 577 005
... RESPONDENTS (BY SHRI VIKRAM HUILGOL, AGA) --- THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF APPROPRIATE NATURE TO PERMIT THE PETITIONER TO REMOVE AND TRANSPORT THE MINERALS AS PER REPORT DATED 29.07.2020 UPLOADED ON 03.09.2020 FROM THE MINING LEASE AREA AL NO.1942 SITAUTED AT MARENHALLI VILLAGE, SY. NO.60, JAGALUR TALUK, DAVANGERE DISTRICT WITHIN A PERIOD OF SIX MONTHS FROM SUCH DATE AS THIS HON'BLE COURT MAY DEEM FIT AND PROPER TO INDIATE AND/OR IN THE ALTERNATIVE TO CONSIDER THE REPRESENATION DATED 22.10.2020 VIDE ANNEXURE-D.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THROUGH VIDEO CONFERENCING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER Heard the learned counsel appearing for the petitioner.
The petitioner was granted a mining lease on 14th May 1964. The mining lease admittedly expired on 31st March 2020.
According to the case made out in the petition, on 26th May 2020, the petitioner made a representation seeking extension of the period for transportation of the minerals already excavated. In paragraph 4 of the petition, it is clearly stated that as such representation was not considered, the
- 3 - earlier writ petition was filed, being Writ Petition No.8457 of 2020, which was disposed of on 28th July 2020.
Under clause (gg) of Rule 12 of the Minerals (Other than Atomic and Hydro Carbons Energy Minerals.) Concession Rules, 2016 (for short, "the said Rules of 2016"), the maximum period available to a lessee to remove the mineral excavated is of six calendar months from the date of expiry of the lease. The said period, in the present case, expired on 30th September 2020.
The prayer in this petition is for issuing a writ in the nature of mandamus to permit the petitioner to remove and transport the minerals as per the report dated 29th July 2020 uploaded on 3rd September 2020 from the mining leased area within a period of six months from such date as this Court may deem fit and proper.
The first submission of the learned counsel appearing for the petitioner is that it was impossible for the petitioner to transport the excavated mineral within the stipulated time of six months, firstly, because of the lockdown and secondly, due to the fact that the report regarding the
- 4 - excavated ore was submitted by the Senior Geologist on 29th July 2020 and was uploaded only on 3rd September 2020. The bulk permit for transport was issued on 22nd April 2021. Therefore, his submission is that it was impossible for the petitioner to get the excavated minerals transported within the stipulated period of six months. He would, therefore, rely upon the legal principles laid down in the case INDORE DEVELOPMENT AUTHORITY vs. SHYLENDRA1. He also relied upon an unreported decision of the Apex Court in the case of THE DEPUTY COMMISISONER OF INCOME TAX & ANR. VS. M/S. PEPSI FOODS LTD. (NOW PEPSICO INDIA HOLDINGS PVT. LTD.) dated 6th April 2021 passed in Civil Appeal No.1106 of 2021.
The learned counsel appearing for the petitioner submitted that in this case, the petitioner could not transport the excavated iron ore due to default on the part of the Senior Geologist which was beyond the control of the petitioner. He submitted that on account of default on the part of the Senior Geologist, it became impossible for the petitioner to transport the excavated mineral within the stipulated period of six months. He submitted that considering the ground of
1 (2018) 3 SCC 412
- 5 - impossibility of performance within the stipulated time of six months, a Writ Court in exercise of its power under Article 226 of the Constitution of India can always direct extension of the period provided under clause (gg) of Rule 12 of the said Rules of 2016. He submitted that this is a case where there was no fault on the part of the petitioner and it is only due to the default on the part of the Government Officers that the situation has arisen. Lastly, he pointed out that the bulk transport permits for smaller quantities was issued only on 22nd September 2020 and, therefore, the period of only eight days was available to the petitioner.
We have carefully considered the submissions. Writ Petition No.8457 of 2020 was filed by the petitioner containing the following two prayers. "(a) issue a Writ of Mandamus/order/direction, directing the Respondents to grant at least three months’ time from opening of the lockdown to the petitioner to carry on the mining activities by considering the representation/letter dated 26.05.2020, which produced at Annexure – ‘J’ and;
(b) direct the respondents to grant six months’ time to transport the mineral, which is already extracted and kept in the petitioner’s mine."
The prayer was obviously for grant of time of six months for transport of the minerals from the date of filing of the
- 6 - petition. The said prayer was dealt with in paragraph 4 of the order dated 28th July 2020. Paragraph 4 reads thus: "As far as prayer (b) is concerned, it is stated in paragraphs 7 and 8 of the statement of objections that the petitioner will be entitled to time of six months for transport of minerals which are already extracted and kept on the site covered by the leases. This stand is taken based on Rule 12(gg) of the Minerals (other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016 which provides that time is available to remove the excavated minerals for a period of six months from the date of expiry of the lease. In view of the specific Rule and the stand taken in the statement of objections, the entitlement of the petitioner in terms of prayer (b) is accepted for a period of six months from 31st March 2020."
In the earlier writ petition, the petitioner never made any grievance about the delay on the part of the Senior Geologist in submitting the report regarding availability of the legally excavated iron ore. The petitioner by addressing any letter never made a grievance about the delay in uploading the report and in issuing transport permit. Even according to the case of the petitioner, the transport permit was issued eight days prior to 30th September 2020. The present petition has been filed on 12th November 2020.
In fact, Annexure-B to the petition which is a letter dated 29th July 2020 addressed by the Senior Geologist to the
- 7 - Director of Mines and Geology records that on 2nd July 2020, the petitioner had addressed a request letter. The petitioner has not disclosed the date on which an application was made for grant of permit for transportation of the ore. Going by the letter dated 29th July 2020, the said date appears to be 2nd July 2020. Thus, even the request for issuing permits appears to have been made three months after expiry of the lease. This delay on the part of the petitioner has not been explained.
Clause (gg) of Rule 12 of the said Rules of 2016 reads thus: "The lessee may, after paying the rents, rates and royalties payable under the Act and rules made thereunder or under the lease deed, at the expiry or sooner termination of the lease term or within six calendar months thereafter (unless the lease is terminated for default of the lessee, and in that case at any time not less than three calendar months nor more than six calendar months after such termination) take down and remove for its own benefit, all or any ore mineral excavated during the currency of the lease, engines, machinery, plant, buildings structures, tramways, railways and other works, erections and conveniences which may have been erected, set up or placed by the lessee in or upon the leased lands and which the lessee is not bound to deliver to the State Government or which the State Government does not desire to purchase"
- 8 - 12. The petitioner was always aware about this outer limit for transportation of the excavated iron ore. The petitioner had means to approach the Writ Court as can be seen from the earlier writ petition filed by him. The petitioner did not approach this Court for making a grievance about the delay after 28th July 2020. The petitioner has not explained how much quantity was transported by him immediately after getting permit on 22nd September 2020.
Neither the provisions of the Mines and Minerals. (Development and Regulation) Act, 1957 nor the said Rules of 2016 admittedly provide for extension of time beyond the period of six months from the date of expiry of the lease.
If according to the case of the petitioner, due to the default on the part of the authorities, the petitioner was prevented from transporting the iron ore within the specified time, the loss caused to the petitioner due to default on the part of the officers or the State Government can be always quantified in terms of money. Therefore, the remedy of filing a civil suit for recovery of compensation/damages is always available to the petitioner.
- 9 - 15. Subject to what is observed above, no relief can be granted to the petitioner and the petition is, accordingly, rejected.
We make it clear that the observations made in this petition are made essentially for the purpose of coming to the conclusion that the petitioner is not entitled to a writ in the nature of mandamus as prayed for. These observations will not affect merits of a civil suit, if filed by the petitioner.
Sd/- CHIEF JUSTICE Sd/- JUDGE
AHB