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Dinesh Shetty & Another v/s State of Karnataka, Rep. by its Secretary Department of Commerce & Industries, Bengaluru & Others

    Writ Petition Nos. 5405, 5503 of 2020

    Decided On, 06 August 2020

    At, High Court of Karnataka

    By, THE HONOURABLE ACTING CHIEF JUSTICE MR. ABHAY S. OKA & THE HONOURABLE MR. JUSTICE ASHOK S KINAGI

    For the Appellants: Shivaprasad Shantanagoudar, T.N. Veena, Advocates. For the Respondents: V.G. Bhanuprakash, AGA.



Judgment Text

(Prayer: This Writ Petition is filed Under Articles 226 & 227 of the Constitution of India, praying to quash proceedings dated 06.08.2019 of the R-3 Licensing and regulating Authority per Annexure-A at Resolution No.4.4 in so far as it relates to deferring of decision on renewal application for stone crusher in respect of the applied land Morefully Described in the Schedule to the writ petition and etc.This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India, praying to issue any order or grant any relief in the Nature of Mandamus Declaring that the petitioner is entitled for deemed extension of the Stone Crusher License granted in License No.Scl44/2016-17 (5028) in Terms of Form-C dated 04.07.2016 produced at Annexure-F for a period of 20 Years from the date of Original grant as provided under amended Section 5 of Karnataka Regulation of Stone Crushers Act, 2011, and also issue a consequential direction to the 3rd Respondent to extend the benefit of the deemed Extension as per his entitlements in Accordance with Law & etc.)Abhay S. Oka, CJ.1. Heard the learned counsel appearing for the petitioner and the learned Additional Government Advocate for the respondents in both the petitions. Considering the narrow controversy involved in these two petitions, the same are taken up together for final disposal.2. Both these petitions arise under the provisions of the Karnataka Regulation of Stone Crushers Act, 2011 (for short, "the said Act of 2011"). By the Karnataka Regulation of Stone Crushers (Amendment) Ordinance, 2020 (for short, "the said Ordinance"), the said Act of 2011 was extensively amended. Sub-section (2) of Section (1) of the Ordinance provides that it shall come into force with effect from 30th March, 2020. Admittedly, the said Ordinance is valid. Both the petitions will have to be dealt with in the light of the amendments carried out to the said Act of 2011 by virtue of the said Ordinance.3. In W.P. No.5405 of 2020, a licence under Section 3 of the said Act of 2011 for running a stone crusher unit was granted to the petitioner for a period of five years with effect from 20th August, 2013. Before the expiry of the said licence, on 21st May, 2018, the petitioner applied for renewal of the said licence. The first challenge in the said petition is to the decision dated 6th August, 2019 (Annexure-A) of the licencing authority. The decision is that action can be taken on the renewal application only after the necessary directions and guidelines are issued by the Government of India with regard to the issue of 'deemed forest'. It is stated in the said decision that the land subject matter of the petition is included in the list of 'deemed forests.' The second challenge in the petition is to the communication dated 22nd November, 2019 (Annexure-B). It records that only after the final decision of the Apex Court regarding 'deemed forests', an action can be taken on the basis of the application for renewal. The other prayer in the writ petition is for a writ of mandamus directing the third respondent to take a decision on the renewal application.4. As far as W.P. No.5503 of 2020 is concerned, the licence granted to the writ petitioner under the said Act of 2011 for running a stone crusher unit was for a period of five years which expired on 18th December, 2018. On 10th September, 2018, the petitioner applied for renewal of the licence. The challenge in this writ petition is to the communication dated 22nd November, 2019 (Annexure-B) which records that the land subject matter of the petition is not included in the list of 'deemed forests', but the stone quarry connected to the stone crusher unit is situated in the 'deemed forest' area. It records that the Forest Department has objection for renewal of the licence for establishment of a stone crusher unit.5. The learned counsel appearing for the petitioner in both the writ petitions invited our attention to the amendment carried out to the said Act of 2011 by the said Ordinance and especially, the provision of sub-sections (2) and (3) of Section 5 of the Act incorporated by the said Ordinance. The submission is that as the application for renewal of the licence was filed before the expiry of the licence which was still pending consideration before the licencing authority on the date on which the said Ordinance came into force, the petitioners are entitled to a deemed grant of licence for a period of twenty years as provided in sub-section (2) of Section 5 of the said Act of 2011 incorporated by the amendment carried out by the said Ordinance.6. Reliance is placed on a decision of this Court dated 12th June, 2019 in W.P. No.54476 of 2016 on the issue of 'deemed forests.' Reliance is also placed on another decision of this Court dated 16th June, 2020 in W.P. No.50855 of 2019. The learned Additional Government Advocate initially submitted that the amendment carried out to sub-section (1) of Section 5 of the said Act of 2011 may indicate that the amendment is prospective in nature. However, he submitted that in the light of the provisions of sub-sections (2) and (3) of Section 5 of the said Act of 2011 as amended by the said Ordinance, this Court will have to pass an appropriate order.7. We have carefully considered the submissions. Section 5 of the said Act of 2011 as it stood prior to the amendment carried out by the said Ordinance, reads thus:"5. Term of licence- A licence shall be valid for a period of five years and may be renewed for a further period of five years subject to fulfillment of the conditions laid down under the Act or under the rules made thereunder."As far as the said Ordinance is concerned, what is material is Section 6 thereof which reads thus:"6. Substitution of section 5.- Section 5 of the principal Act, shall be renumbered as sub-section(1) thereof and,-(i) in sub-section (1) as to re-numbered, for the words "valid for five years" and for the words "for further period of five years" the words "valid for twenty years" and the words "further period of ten years" shall be substituted.(ii) after sub-section (1) the following shall be inserted, namely:-"(2) Subject to payment of such annual regulation fee as may be prescribed, all existing crusher licenses granted before the commencement of Karnataka Stone Crusher Regulation (Amendment) Ordinance, 2020, shall be deemed to have been granted for a period of twenty Years from the date of original grant and shall be extended accordingly.(3) The benefit of extension under sub-section (2) of this section shall also apply,-(i) for cases where crusher license renewal application was filed before the expiry of such license which is pending consideration before the licensing Authority; and(ii) for the cases where the licensing Authority has rejected renewal applications solely on the ground of non-filling of such applications three months prior to expiry of such license but has applied for renewal before the expiry of licence as stipulated under sub-section (1), the renewal under clause (ii) shall be subject to payment of the penalty of rupees two lakh.(4) Upon expiry of the period of crusher license specified in sub-section (1) and (2) of this section, the Licensing Authority may renew the licence on an application for renewal for further period for ten years".(underlines supplied)8. As per the unamended Section 5 of the said Act of 2011, a licence granted under Section 3 of the said Act was to be valid for a period of five years, which could be renewed for a further period of five years subject to fulfillment of the conditions laid down in the said Act of 2011 and the Rules framed thereunder. The words "five years" have been replaced by the words "twenty years" and the words "further period of five years" have been replaced by the words "further period of ten years." Thus, now after the date on which the amendment came into force, a licence granted under Section 3 shall be valid for a period of twenty years and can be renewed for a further period of ten years subject to fulfillment of the conditions laid down under the said Act and the Rules framed thereunder. However, sub-section (2) added to Section 5 by the said Ordinance applies to the existing stone crusher licences which were valid as on 30th March, 2020 when the said Ordinance came into force. Thus, in view of added subsection (2) of section 5, the existing licences which were valid on 30th March, 2020 shall be deemed to have been granted for a period of twenty years from the date of the original grant.9. In these two petitions, the licences were not valid as on 30th March, 2020. However, clause (i) of sub-section (3) of Section 5 added by virtue of the said Ordinance provides that the benefit of extension provided under sub-section (2) of Section 5 of the said Act of 2011 shall apply to cases where the renewal applications for grant of crusher licences were already filed before the expiry of the licences and which were pending consideration before the licencing authority. In both these cases, the applications for renewal were admittedly filed before expiry of licences which were not disposed of as on 30th March, 2020 and the same are pending even as of today. Therefore, the benefit of extension of the licence under sub-section (2) of Section 5 of the said Act of 2011 as inserted by the said Ordinance will have to be granted to the petitioners in both the cases.10. Sub-Section (2) of Section 5 of the said Act of 2011 added by the said Ordinance provides that the deemed extension shall be subject to payment of annual regulation fee as may be prescribed. Therefore, the State Government will have to immediately exercise its rule making power and prescribe the annual regulation fee.11. Now, coming to the issue of 'deemed forest,' we may make a reference to the decision of this Court dated 12th June, 2019 in W.P. No.54476 of 2016. The said decision refers to a decision of the Apex Court in the case of T.N.GODAVARMAN THIRUMULKPAD .v. UNION OF INDIA AND OTHERS, (1997) 2 SCC 267 . This Court, in paragraph 9 of the judgment, has observed thus:"9. Hence, the meaning of the word "forest" covers all statutorily recognized forests for the purpose of Section 2 of the Forest Act. What is held in the fourth paragraph is very important. The Apex Court laid down that the Forest Act must apply to all forests irrespective of the nature of ownership or classification thereof. The Apex Court observed that for understanding the definition of "forest" or "forest lands" it is not necessary that the land should be a recognized forest, whether designated as reserved, protected or otherwise. The Apex court observed that the terms "forest" or "forest lands" in the Forest Act must apply to all forests irrespective of the ownership or classification thereof. In fact, the Apex Court went to the extent of directing that in the light of Section 2 of the Forest Act, for conducting any non-forest activity in a forest in any State, prior approval of the Central Government must be obtained. An attempt was made by the learned counsel appearing for the petitioner in W.P.51135/2016 to contend that the observations made by the Apex Court in the aforesaid judgment and order dated 12th September 1996 have been considerably watered down. For that purpose, he relied upon the decision of the Apex Court in the case of RE:CONSTRUCTION OF PARK AT NOIDA (supra). We have carefully perused the said decision. In paragraph 35, the Apex Court has observed that almost all orders and judgment of the Apex Court dealing with 'forest' and 'forest land' for the purpose of Forest Act were rendered in the context of mining. The Apex Court observed, on facts, that the case before it was different. Thus, the observations made by the Apex Court are in the context of the peculiar fact situation in the case before it. On the contrary, if the observations made in first part of paragraph 35 are perused, it is very clear that the observations made by the Apex Court as regards the concept of the "forest" and "forest land" in the earlier judgment was in the context of mining activities. In these cases we are dealing with mining activities. We find that the directions issued by the Apex Court in the order dated 12th December 1996 have been nowhere watered down by any subsequent judgments."(underline supplied)In paragraph 16 of the judgment, this Court observed thus:16. In the present case, if the lands are covered by wide definition of "forest" or "forest land", quarrying can be permitted only after obtaining the permission of the Central Government. Therefore, the question whether the deeming fiction under the said Rules will apply or not will depend on the outcome of the enquiry whether the land subject matter of the petitions are "forest" or "forest lands". If the same are "forests" or "forest lands" within the meaning of the order of the Apex Court dated 12th December 1996, obviously, the applications made by the petitioners cannot be considered unless consent as aforesaid is obtained."(underline supplied)12. In the judgment and order dated 16th June, 2020 in W.P. No.50855 of 2019, this Court held that the Lokayukta had no jurisdiction to issue a direction not to carry on mining activities. In paragraph 11 of the said judgment and order, this Court observed thus:"11. In the event there is an adjudication made that the land subject matter of lease is a forest land within the wider meaning given by the Apex Court in GODAVARMAN's case or is a forest covered by the said Act of 1980, the State Government will be well within its rights to call upon the petitioner to stop the mining activity till the consent of the Central Government under Section 2 of the said Act of 1980 is granted to the petitioner."13. Therefore, in view of the law laid down by this Court, it is clear that the application for renewal of the licence cannot be kept pending on the ground that the land subject matter of the first petition has been included in the list of "deemed forests." In any case, now the deeming fiction brought on the statute book by way of an amendment by inserting sub-sections (2) and (3) of Section 5 of the said Act of 2011 will come into operation and the petitioners will be entitled to deemed extension as provided in sub-section (2) from the date of the original grant of licence. In short, the period of validity of the licence granted to the petitioners in both the cases will be of twenty years from the date on which the same was originally granted.14. As far as the issue of forest land is concerned, it is not necessary for us at this stage to go into the question whether the land subject matter of the first petition is a forest or a forest land as contemplated by the Apex Court in the case of T.N.GODAVARMAN (supra). The law on this aspect is very clear. A forest or a forest land cannot be diverted for non-forest use without the consent of the Central Government under Section 2 of the Forest Conservation Act, 1980. Therefore, even if a license under section 3 of the said Act of 2011 is granted to run a stone crushing unit on a land to which Section 2 of

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the Forest Conservation Act, 1980 is applicable, the non forest activity on the basis of the license can be commenced only after obtaining the consent of the Central Government.15. As far as the second petition is concerned, the application for renewal has been ordered to be kept pending on the ground that the stone quarry attached to the unit is in a forest land. That is not a ground to deny grant of licence under the said Act of 2011. There is no such specific disqualification incorporated under the said Act of 2011. Therefore, the petitions must succeed and we pass the following order:ORDER(i) We hold and declare that as the applications made by the petitioners in both the cases for renewal of their respective licences granted under Section 3 of the said Act of 2011 were pending as on 30th March, 2020, the petitioners will be entitled to deemed extension in accordance with the provisions of sub-section (2) of Section 5 read with clause (i) of sub-section (3) of Section 5 of the said Act of 2011 as amended by the said Ordinance;(ii) The petitioners shall be entitled to deemed extension subject to payment of annual regulation fee as may be prescribed by the State Government;(iii) We clarify that as far as the petitioner in W.P. No.5405 of 2020 is concerned, the petitioner will be entitled to deemed extension as held above, notwithstanding what is recorded in Annexures-A and B;(iv) We also clarify that as far as W.P. No.5503 of 2020 is concerned, the petitioner will be entitled to deemed extension as held above, notwithstanding what is stated in the communication dated 22nd November, 2019 (Annexure-B);(v) Both the petitions are allowed on the above terms.
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