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Dhanalakshmi & Another v/s The Joint Director & Another

    Writ Petition Nos. 13173, 13172 of 2018 (GM-MMS)

    Decided On, 11 January 2019

    At, High Court of Karnataka

    By, THE HONOURABLE CHIEF JUSTICE MR. DINESH MAHESHWARI & THE HONOURABLE MR. JUSTICE ARAVIND KUMAR

    For the Petitioners: S. Rajashekar, Advocate. For the Respondents: Vikram Huligol, HCGP.



Judgment Text

(Prayer: This Writ Petition is Filed Under Article 226 & 227 of Constitution of India praying to quash the endorsement dated 18.01.2018, issued by the respondent No.2 at Annexure-E; etc.

This Writ Petition is filed Under Article 226 & 227 of Constitution of India praying to quash the endorsement dated 18.01.2018, issued by the Respondent No.2 at Annexure-E; etc.)

1. These two writ petitions are taken up together for final disposal by consent of the learned Advocates appearing for the parties though listed for preliminary hearing and they are disposed of by the following common order, since the impugned endorsements dated 18.01.2018 (Annexure-E in both the writ petitions) have been issued to the respective writ petitioners rejecting their application for renewal of quarrying lease on the ground the applications have not been filed within the prescribed time.

2. Sriyuths Vasudev and P.Krishna were granted quarrying lease for a period of 5 years on 02.12.1995 for carrying on ston

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e cutting activity by manual process in an area measuring 1 acre 20 guntas each in Sy.No.1 of Babybettada Kaval Village, Pandavapura Taluk, Mandya District and lease deed came to be executed as per Annexure-A in the respective petitions. They expired on 24.05.2010 and 03.12.2014 as is evident from the death certificate - Annexure-B.

3. The petitioners herein being the wives of lessees/licensees, submitted an application on 26.12.2017 and 10.01.2018-Annexure-C for renewal of the license to their respective names. Said application has been considered by the second respondent and rejected by the endorsement dated 18.01.2018-Annexure-E, which is impugned in these writ petitions.

4. We have heard the arguments of Sri.S.Rajashekar, learned counsel appearing for the petitioners and Sri.Vikram Huligol, learned HCGP appearing for respondents. We have also perused the case papers.

5. It is the contention of Sri.S.Rajashekar, learned counsel appearing for the petitioner that both the petitioners belong to scheduled caste community and were dependent for their livelihood from the income generated through quarrying by their late husband and they being uneducated and not being worldly wise, had no knowledge of the technical procedure to be adopted for seeking extension of license issued their husband within the prescribed time and as such, second respondent-authority without examining the claim of petitioners in this background had rejected the application for renewal only on the ground of applications having not been submitted within the prescribed time and as such they seek for the impugned endorsements being quashed and in the alternate, they have sought for fresh opportunity being issued to petitioners to submit representation afresh, elaborating the reasons therein for non filing of application for renewal on time. Hence, they have prayed for the petitions being allowed and prayer sought for therein being granted.

6. Per contra, Sri.Vikram Huligol, learned HCGP appearing for the State has supported the impugned endorsements and has contended that application for renewal ought to have been filed on or before 90 days before the expiry of the lease enclosing the certificate of competent authority for having cleared the arrears, if any and in the instant case, applications having been filed by the petitioners after long period i.e., 7 years and 8 years respectively, their applications for renewal has been rightly rejected and as such he seeks for rejection of the writ petitions.

7. After having heard the learned Advocates appearing for the parties and bestowing our careful and anxious consideration to the rival contentions raised at the bar, we are of the considered view that petitioners are not entitled for the reliefs sought, for reasons more than one and as detailed hereinbelow:

The quarry lease/license granted to late Sri.Vasudev and Sri.P.Krishna was in the year 2005 i.e., on 02.12.2005 and the lessees/licensees expired on 24.05.2010 and 03.12.2014 respectively. Under the then existing Rule 21(2) of the Karnataka Minor Mineral Concession Rules, 1994 (for short 'Rules-1994'), an application for renewal of a quarry lease ought to have been made in Form-R to the competent authority on or before 90 days before the expiry of lease enclosing therewith a certificate of the competent authority for having cleared the arrears, if any. However, second proviso to sub-rule (2) of Rule 21 enabled the competent authority to receive the application for renewal upto 1 month on payment of penalty of 10% of the existing annual dead rent subject to minimum of Rs.2,000/-. Likewise, upto 2 months 15% of the existing annual dead rent subject to minimum of Rs.3,000/- and beyond 2 months but before expiry of the lease by receiving 25% of the existing annual dead rent subject to a minimum of Rs.4,000/-. In other words, the period of limitation fixed under the extant rules being 90 days and third proviso making it explicitly clear that any renewal application received after expiry of the above period should be rejected, would clearly indicate the rigour of Rule is mandatory and not discretionary. To put it differently, the competent authority to whom the power to renew the license has been granted is not empowered to extend or renew the quarrying lease when such applications are received after the expiry of the above period.

8. Learned counsel appearing for the petitioners has not been able to demonstrate or establish any rule providing for the delay being condoned or the authority having been vested with the power to condone the delay when such applications for renewal is filed beyond the period prescribed under Rule 21(2). In the absence of any such power being vested with the authority, a writ cannot be issued to the authority to act contrary to the extant rules. A bare reading of Rule 21(2) of Rules-1994 and the language or expression found therein namely, "applications received after expiry of the above period" would clearly indicate that it would amount to an express exclusion of the provision of Sections 4 to 24 of the Limitation Act, 1963. To arrive at a conclusion that competent authority would be empowered to entertain an application for renewal beyond the period prescribed under provisos (1) and (2) of sub-rule (2) of Rule 21 would amount to doing violence to the provision and it would render the phrase or above said expression found in the third proviso wholly otiose. Our view is also fortified by the judgment of the Hon'ble Apex Court in the matter of M/s. SINGH ENTERPRISES vs. COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR AND OTHERSreported in (2008) 3 SCC 70 has held that proviso to sub-section (1) Section 35 of the Central Excise Act makes the position clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days after the expiry of 60 days, which is the normal period for preferring appeal. It has been held:

"8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period."

9. In the background of aforestated analysis, when we examine the facts on hand, at the cost of repetition, we notice that undisputedly both the petitioners have not filed the applications for renewal within the time prescribed under Rule 21(2), but after long lapse of several years namely, 7 years and 8 years respectively have submitted their applications for renewal viz., on 26.12.2017 and 10.01.2018 (Annexures-C in both writ petitions) that too without specifying or assigning the reasons for inordinate delay in filing such renewal applications. Be that as it may. The competent authority empowered to renew the quarry lease not being vested with power to extend the time for submitting an application for renewal of quarry lease or Rules-1994 does not empower the authority to condone such delay, but on the other hand, third proviso to sub-rule (2) of Rule 21 clearly indicating that any renewal application received after the expiry of period prescribed under sub-rule (2) and the provisos thereunder to be rejected, has been rightly so applied by the respondent authority in the instant case to reject the applications of the petitioners for renewal under the impugned endorsements. Hence, we do not find any infirmity in the impugned endorsements, which would call for our interference under the extraordinary jurisdiction vested under Article 226 and 227 of the Constitution of India.

For the reasons aforestated, we hereby dismiss the writ petitions with no order as to costs.
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