(Prayer: This Writ Petition is filed Under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 01.09.2018 issued in Form-D by the R3 as being arbitrary, erroneous and contrary to law Annexure-E and etc.,)

Abhay S. Oka, CJ.

1. Heard the learned Counsel appearing for the petitioner.

2. Issue notice to the respondents. Learned Additional Government Advocate takes notice for the respondent Nos.1, 2, 3 and 5. Learned Counsel Sri Gururaj Joshi takes notice for the respondent No.4.

3. The petitioner made an application under Section 3 of the Karnataka Regulation of Stone Crushers Act, 2011 (for short, 'the said Act of 2011') for grant of a licence to operate a crusher unit. The application made by the petitioner was rejected by issuing a 'D' Form in accordance with sub-rule (2) of Rule 3 of the Karnataka Regulation of Stone Crushers Rules, 2012 (for short, 'the said Rules of 2012'). Three reasons were given in Form-D for rejection:- (i) The location of the site of the proposed crusher unit is within 38 metres of a road; (ii) Penalty of Rs.11,42,700/- for illegal storage of building stone has not been paid by the petitioner; and (iii) Penalty due of Rs.9,75,226/- for illegal mining has not been paid by the petitioner.

4. An appeal was preferred by the petitioner against the said order in accordance with sub-section (1) of Section 15 of the said Act of 2011. We may note here that as far as demand of penalty of Rs.11,42,700/- is concerned, by the order dated 30th May 2017 passed by this Court in W.P.No.13629 of 2016, the notice demanding the said amount was set aside and an order was passed to issue a fresh demand after giving an opportunity of being heard. The learned Counsel appearing for the petitioner on instructions states that no further order of demand has been passed. In any case, while dismissing the appeal preferred by the petitioner by order dated 30th November 2019, the Appellate Authority has not considered the ground of non-payment of penalty of Rs.11,42,700-00 against the petitioner. The Appellate Authority found that the allegation that the site of the crushing unit was within the distance of 38 metres from a road has not been established. However, the appeal was dismissed on the ground that penalty of Rs.9,75,226-00 has been imposed on the petitioner for carrying out illegal mining and the said amount has not been paid.

4. The learned Counsel appearing for the petitioner relying upon the order dated 9th November 2016 passed in W.P.No.56785 of 2016 submits that no coercive action can be taken for recovery of penalty of Rs.9,75,226-00. He submits that in any case, this penalty is based on the allegation of illegal mining activity which has nothing to do with the grant of licence under the said Act of 2011.

5. The learned Additional Government Advocate submits that on joint inspection, the site of the crushing unit was found to be at a distance of 38 metres from the road. He submits that the finding recorded by the Appellate Authority is not happily worded.

6. We have considered the arguments advanced. On three grounds noted above, the application made by the petitioner was rejected. As far as the ground of non-payment of penalty of Rs.11,42,700-00 is concerned, there is a categorical statement made by the learned Counsel for the petitioner that after setting aside the said demand, a fresh demand has not been issued in terms of the aforesaid order of this Court dated 30th May 2017. As regards the demand of Rs.9,75,226-00, firstly, it must be noted that it is not a demand for carrying on illegal crushing activity. Considering the scheme of Sections 4 to 6 of the said Act of 2011, there is no provision for denying a licence to the applicant on the ground that he has not paid the penalty levied on him for illegal mining. In any case, so long as the interim order dated 9th November 2016 passed in W.P.No.56785 of 2016 is operating, even the said penalty of Rs.9,75,226-00 cannot be recovered from the petitioner.

7. Therefore, both the impugned orders cannot be sustained and now the application made by the petitioner must go back to the stage of sub-section (2) of Section 4 of the said Act of 2011. To avoid any controversy about the location of the site, a fresh joint inspection will have to be carried out.

8. Accordingly, we pass the following:

ORDER

(i) Both the impugned orders at Annexures-E and J are set aside. We direct that a fresh joint survey/inspection in accordance with sub-section (2) of Section 4 of the said Act of 2011 shall be carried out on the basis of the application made by the petitioner at Annexure-A. The process of joint survey/inspection shall be completed within a period of six weeks from today;

(ii) After joint inspection report is submitted to the Licencing Authority, within two weeks from the date of submission of the said report, the Licencing Authority shall con

sider the issue of granting a certificate of consent of safer zone. The issue shall be considered within two weeks and the decision taken thereon shall be communicated to the petitioner; (iii) It is obvious that if a certificate of consent of safer zone is issued, on production of the consent for operation being granted by the Karnataka State Pollution Control Board, the Licencing Authority shall comply with the provisions of Section 6A of the said Act of 2011. (iv) The petition is accordingly partly allowed with the above directions.