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D. Vasantha v/s The State of Karnataka, Represented by its Secretary Commerce & Industries Department (MSME & Mines), Bengaluru & Others

    Writ Petitioner No. 51608 of 2019 (GM-MMS)

    Decided On, 05 February 2020

    At, High Court of Karnataka

    By, THE HONOURABLE CHIEF JUSTICE MR. ABHAY S. OKA & THE HONOURABLE MR. JUSTICE HEMANT CHANDANGOUDAR

    For the Petitioner: B.S. Prakash, Advocate. For the Respondents: V.G. Bhanuprakash, AGA.



Judgment Text


(Prayer: This Writ petition is filed Under Articles 226 and 227 of the Constitution of India, praying to quash the notice dated : 09.10.2019 issued by the Senior Geologist, Department of Mines and Geology, Mysuru the original of the order dated 09.10.2019 issued by the Deputy Director is herewith produced and marked as Annexure -A and etc.)

Hemant Chandangoudar, J.

1. By notice dated 9th October 2019 issued by the third respondent, the petitioner has been stopped from carrying quarrying operations and the same is challenged in this writ petition.

2. The petitioner was granted with licence for quarrying black granite on an extent of 0.32 acres of land situated in Sy.No.200 of Marchahalli village, K.R. Nagar Taluk, Mysuru District pursuant to the quarrying lease deed dated 27th July,2006 bearing No.764 executed by the first respondent with effect from 23rd May 2006 for a period of ten years. Further, in the year 2016, the tenure of the quarrying lease was extended from ten to twenty years with effect from 23rd May 2006 in consonance with the Granite Conservation and Development Rules, 1999. Petitioner has obtained all statutory clearances for carrying out quarrying operations. The licence granted to the petitioner under Karnataka Minor Mineral Concession Rules, 1994 is still in subsistence.

3. When things stood thus, the first respondent has issued a notice dated 9th October 2019 (Annexure-A) to the petitioner calling upon him to stop quarrying operations immediately from the date of receipt of this notice till further orders, failing which, an appropriate action will be initiated in accordance with Rules. This notice is issued based on the communication dated 11th September 2019 issued by the Deputy Commissioner, Mandya to the first respondent , whereby ban is imposed on all forms of quarrying activities/ crushers using any form of explosives in and around 20 kms. radius from K R S Dam from 28th August 2019 till further orders by invoking Section 144 of the Code of Criminal Procedure, 1973 (for short "Cr.PC"). The Petitioner whose right to carry on quarrying activities which has been adversely affected has challenged the impugned notice in this writ petition.

4. Learned counsel appearing for the petitioner submits that the petitioner has been carrying on quarrying activities pursuant to a valid subsisting licence granted in his favour by the first respondent since the year 2006 after obtaining all statutory clearances from the competent Authorities . Further, he submits that the petitioner has been adopting non-blasting method for extracting minerals and he has not committed any breach of condition contained in the lease deed or any provisions of the law. He further submits that the revenue land on which the petitioner is carrying on quarrying operations is situated at a distance of more than 15 kms. from KRS Dam. However, the third respondent has issued the impugned notice under which, the petitioner has been stopped from carrying out quarrying operations based on the letter issued by the Deputy Commissioner banning all forms of carrying activities within the radius of 15 kms. from K R S Dam. Hence, he seeks for quashing of the impugned notice stating that the same is one without authority of law since the Deputy Commissioner has purportedly exercised the power under Section 144 of Cr.PC and the impugned notice is issued without serving any show cause notice and also he was not provided with opportunity of hearing before he was asked to stop quarrying operations .

5. Learned Additional Government Advocate appearing for the respondents justified the notice issued by the third respondent stating that the same is issued in the interest of public and also safety of the K R S Dam and accordingly sought for dismissal of the writ petition.

6. Admittedly, the impugned notice has been issued based on the communication issued by the Deputy Commissioner banning all the types of quarrying activities within the radius of 20 kms. from K R S Dam. Deputy Commissioner has banned quarrying activities by purportedly exercising power under Section 144 of Cr.PC, which reads as follows:

"144. Power to issue order in urgent cases of nuisance or apprehended danger

In cases where, in the opinion of a District Magistrate, a Sub-Division Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.

(2) An order under this section may, in cases of emergency or in cases where the circumstances do no admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.

(3) An order under this section may be directed to a particular individual, or persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

(4) No order under this section shall remain in force for more than two months from the making thereof.

PROVIDED that, if the state government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, directed that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.

(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or any Magistrate subordinate to him or by his predecessor-in- office.

(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).

(7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing."

7. A bare reading of Section 144 of Cr.PC would indicate that power under Section 144 Cr.P.C is of a temporary nature, to be exercised in urgent situation of imminent danger , where immediate and speedy remedy is required . In the absence of such imminent danger, the Deputy Commissioner cannot prevent the petitioner from carrying on quarrying operations which is permissible under the Mining Leases and Licenses for extracting minerals and the power exercised by the Deputy Commissioner banning quarrying operations is beyond the scope of Section 144 of Cr.PC. A blanket ban on quarrying operations cannot be made in the absence of any report by the competent authority to the effect that quarrying activities within 20 kms radius will cause damage to the dam. The third respondent on the basis of letter of the Deputy Commissioner has called upon the petitioner to stop quarrying operations immediately, failing which, an action will be taken in accordance with Rules. It is also clear from the impugned notice that the petitioner was not served with any notice or provided with an opportunity of hearing before he was called upon to stop quarrying operations.

8. We are of the opinion that the communication issued by the Deput

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y Commissioner banning quarrying operations within the radius of 20 kms. from K R S Dam is without authority of law. Further the impugned notice issued by the third respondent based on the letter of the Deputy Commissioner also violates the principles of natural justice since Petitioner was not heard before he was called upon to stop quarrying operations to which he is legally entitled to under the relevant provisions of law. During the subsistence of valid license, the Petitioner cannot be compelled to stop quarrying operations. 9. For the aforesaid discussions, the writ petition is allowed. The impugned notice dated 9th October, 2019 issued by the third respondent vide Annexure-A is hereby quashed. 10. However, we make it clear that the Respondents are at liberty to take suitable action in accordance with law in the event of Petitioner carrying on quarrying operations in violation of law.<
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