w w w . L a w y e r S e r v i c e s . i n



Yogitha Sedthi v/s The State of Karnataka, Represented by its Secretary Department of Commerce & Industries, Bengaluru & Others


Company & Directors' Information:- INDIA E-COMMERCE LIMITED [Active] CIN = L99999MH1968PLC014091

Company & Directors' Information:- S H COMMERCE PRIVATE LIMITED [Active] CIN = U51109WB2008PTC121420

Company & Directors' Information:- A. M. COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB2011PTC168744

Company & Directors' Information:- G S E-COMMERCE PRIVATE LIMITED [Active] CIN = U52100KA2013PTC067567

Company & Directors' Information:- V K COMMERCE PVT LTD [Amalgamated] CIN = U51109WB1984PTC037122

Company & Directors' Information:- P. R. COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB2008PTC122333

Company & Directors' Information:- M & P E. COMMERCE PRIVATE LIMITED [Active] CIN = U74300DL1999PTC099198

Company & Directors' Information:- R S COMMERCE PVT LTD [Converted to LLP] CIN = U51909WB1995PTC074372

Company & Directors' Information:- P S COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB1997PTC084487

Company & Directors' Information:- T S R I COMMERCE PRIVATE LIMITED [Strike Off] CIN = U65910TG1999PTC032173

Company & Directors' Information:- AND E-COMMERCE PRIVATE LIMITED [Active] CIN = U74120AP2015PTC096206

Company & Directors' Information:- D B S COMMERCE PRIVATE LIMITED [Active] CIN = U52190MH2009PTC190773

Company & Directors' Information:- A P COMMERCE LIMITED [Strike Off] CIN = U51909WB1981PLC033798

Company & Directors' Information:- K P INDIA COMMERCE PRIVATE LIMITED [Strike Off] CIN = U51909AS2001PTC006701

Company & Directors' Information:- Y S E-COMMERCE PRIVATE LIMITED [Active] CIN = U72200MH2000PTC126344

Company & Directors' Information:- B AND D E-COMMERCE PRIVATE LIMITED [Strike Off] CIN = U74999HP2015PTC000945

Company & Directors' Information:- I P E-COMMERCE PRIVATE LIMITED [Active] CIN = U52399CH2012PTC033585

Company & Directors' Information:- COMMERCE & INDUSTRIES LTD [Strike Off] CIN = U51109WB1958PLC023756

    Writ Petition No. 11719 of 2021 (GM-MM-S)

    Decided On, 20 July 2021

    At, High Court of Karnataka

    By, THE HONOURABLE CHIEF JUSTICE MR. ABHAY S. OKA & THE HONOURABLE MR. JUSTICE SURAJ GOVINDARAJ

    For the Petitioner: I. Tharanath Poojary, Advocate (PH). For the Respondents: S.S. Mahendra, AGA (PH).



Judgment Text

(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to issue a writ in the Nature of Mandamus Directing the respondents to effect deemed extension of the petitioner's quarry lease Ql:DKD246/2010-11 in terms of Rule 8-A(4) of the KMMC Rules, considering the renewal application dated 19.01.2015 made by her late mother produced at Annexure-A and etc.)

Suraj Govindaraj, J.

1. The Petitioner is before this Court seeking for a mandamus directing the respondents to effect deemed extension of the Petitioner's quarry lease in terms of Rule 8-A(4) of the Karnataka Minor Mineral Concession Rules, 1994 by considering the renewal application submitted on 19.01.2015 as also for a certiorari to quash the endorsement dated 22.02.2017 issued by the 4th respondent rejecting the application filed by the Petitioner's mother stating that 911.17 acres in Sy.No.354 is a deemed forest as regards which quarry lease cannot be granted.

FACTS:

2. The Petitioner's mother, late Amba Sedthi, was granted a quarry lease in QL.No.DKD/246/2010 for building stone in respect of 2 acres of land in Sy.No.354/P1A of Nitte Village, Karkala on 13.04.2010 for a period of five years which expired on 12.04.2015. Mother of the Petitioner during her lifetime had applied for renewal of said lease by filing an application on 19.01.2015 within time in terms of Rule 21(2) of Karnataka Minor Mineral Concession Rules, 1994 (for short, 'KMMC Rules') as then applicable.

3. The Petitioner contends that in view of the amendment to the KMMC Rules, which came into effect from 30.06.2020 introducing Rule 8-A(4) of KMMC Rules, the Petitioner is entitled to deemed extension of lease for a period of 20 years calculated from the date of renewal which needs to be granted in favour of the Petitioner who is the only legal heir of the original lessee in terms of Rule 19-C of the KMMC Rules.

4. Sri.Tharanath Poojary, learned counsel for the Petitioner submits that:

4.1. the requirements of Rule 8-A(4) of KMMC Rules have been complied with;

4.2. 'No Objection Certificate' (NOC) from the Senior Geologist was received on 27.04.2017 (Annexure-E).

4.3. The forest NOC was not issued. However, by way of endorsement dated 22.02.2017 (Annexure-B), it is stated that in the lands covered under Sy.No.354, an extent of 911.7 acres of land is deemed forest out of 1366 acres of government land and as such, the Forest Department has no objection for grant of quarry lease over the land which is not deemed forest.

4.4. The said endorsement does not state whether the land over which the lease was granted to the Petitioner's mother comes within 911.7 acres of deemed forest land. Be that as it may, he submits that subject land comes within the remaining barren 354 acres, does not come within the deemed forest area.

4.5. Relying on the decision of this Court in W.P.No.54476/2016 and connected matter in the case of Dhananjay vs. State of Karnataka and others (of which one of us, the Hon'ble Chief Justice is the author) he seeks for petition to be allowed and renewal of quarry lease to be granted.

5. Per contra, Sri.S.S.Mahendra, learned Additional Government Advocate for the respondents would submit that:

5.1. The land over which the lease had been granted in favour of the Petitioner's mother comes in a deemed forest area and therefore, the requirement under Rule 8-A(4) of KMMC Rules being the receipt of NOC from the Forest Department has not been complied with and as such, the Petitioner is not entitled for the relief sought for.

6. Heard Sri.Tharanath Poojary, learned counsel for the Petitioner and Sri.S.S.Mahendra, learned Additional Government Advocate for respondents and perused the papers.

7. On the basis of the submissions made, the points which is required to be determined by this Court are:

1. Whether the concept of deemed forest is recognised under the Forest (Conservation) Act, 1980?

2. In the event of the land not being forest land, is NOC from the Forest Department required for extension of lease in the light of the deemed extension under Rule 8-A(4) of KMMC Rules?

3. What order?

8. Answer to Point No.1: Whether the concept of deemed forest is recognised under the Forest (Conservation) Act, 1980?

8.1. The Division Bench of this Court in its judgment dated 12.06.2019 passed in W.P.No.54476/2016 and connected matter in the case of Dhananjay vs. State of Karnataka and others (of which one of us, the Hon'ble Chief Justice is the author) has categorically held that there cannot be a concept of deemed forest.

8.2. This Court has categorically observed that the Government of Karnataka had undertaken exercise in terms of the direction issued by the Hon'ble Apex Court on 12.12.1996 in the case of T.N.Godavarman Thirumulkpad vs. Union of India and others reported in (1997) 2 SCC 267 and having identified the lands had filed an application before the Hon'ble Apex Court for exclusion of certain area from the purview of Forest Act, as regards which, an order is yet to be passed.

8.3. In view of the said aspect having already been considered by this Court, it would now be required for the authorities to conduct an enquiry under Section 2 of the Forest Act to determine whether the land in question is a forest or forest land as per the decision of the Apex Court in T.N.Godavarman's supra.

8.4. The endorsement dated 22.02.2017 does not indicate as to whether there was infact an enquiry conducted in terms of the Section 2 of the Forest Act. The endorsement at Annexure-B is very bald one.

8.5. Hence, we answer point no.1 by holding that there cannot be a concept of deemed forest, there needs to be enquiry conducted under Section 2 of the Forest Act in order to determine whether a particular land is forest land or not. If it is a forest land, notwithstanding grant of quarrying lease, quarrying operations cannot be carried out unless consent under Section 2 of Forest Act is obtained.

9. Answer to Point No.2: In the event of the land not being forest land, is NOC from the Forest Department be required for extension of lease in the light of the deemed extension under Rule 8-A(4) of KMMC Rules?

9.1. For easy reference, Rule 8-A(4) of KMMC Rules is extracted hereunder:

"8-A(4): The period of all the lease or license of the non-specified minor minerals except the mining leases of the minerals now classified as minor minerals granted before the date of commencement of the Karnataka Minor Mineral Concession (Amendment) Rules, 2016, the validity of their leases or license are expired or about to expired under sub- rule (2), shall be extended and be deemed to have been extended with effect from the date of expiry of the period of renewal last made up-to a period ending on 31st march, 2020 or till the completion of renewal period, if any, or a period of twenty years, from the date of grant of such lease or license, whichever is later, subject to the condition that all the terms and conditions of the lease have been complied with and also subject to the condition that renewal application for the expired lease had been made by the lessee within the time period required for filing such renewal application."

9.2. For the purpose of renewal of lease, Rule 8-A (4) of the KMMC Rules does not contemplate the requirement of NOC by the Forest Department. There is a deemed extension contemplated under the aforesaid Rule inasmuch as the only requirement being that the application for renewal having been made prior to the expiry of the earlier lease.

9.3. No sooner than an application for renewal being made prior to the expiry of the lease in respect of non-specified minor minerals, the lease is deemed to have been extended with effect from the date of expiry of the period of renewal last made upto a period ending on 31st March 2020 or till the completion of renewal period, if any, or for a period of twenty years, from the date of grant of such lease or license, whichever is later, subject to the condition that the lessee has complied with all the terms and conditions of the lease and that the renewal application for the expired lease has been made by the lessee within the time period required for filing such renewal application.

9.4. The aspect of whether quarrying can be carried out or not would depend on the necessary permissions to be granted under the Environment (Protection) Act, 1986 or otherwise, if so required.

9.5. Hence, we answer Point No.2 by holding that Rule 8-A(4) of the KMMC Rules does not contemplate the requirement of NOC from the Forest Department.

10. Answer to Point No.3: What Order?

10.1. The endorsement dated 22.02.2017 at Annexure-B is hereby quashed with a direction to the respondent No.4 to carry out nece

Please Login To View The Full Judgment!

ssary enquiry in terms of Section 2 of the Forest (Conversation) Act, 1980 to determine whether the land in question is a forest or a forest land within a period of two months from the date of receipt of a certified copy of this order; 10.2. A mandamus is issued directing the 3rd respondent to consider the application for renewal in terms of Annexure-A to the Writ Petition dated 30.01.2015 in the light of the discussion made hereinabove, within 1 month of the receipt of the report from the respondent No.4, in terms of 10.1 above ; 10.3. Needless to say that the above is restricted only with regard to the extension of lease and/or execution of necessary lease deed, if any and does not confer any right to on the petitioner to carry out quarrying activity. The right of the Petitioner to carry out any quarrying activity will depend on the permissions required to be obtained by the Petitioner under the Environment (Protection) Act, 1986; 10.4. The petition is allowed.
O R