Hanumanthappa, J. - (1.) this appeal is directed against the order passed by our brother Justice murlidher rao in writ petition No. 14657 of 1989 on 3-5-1990.
(2.) 'via tuta, via inua'. Opt repeated path is good path is an old saying. By adopting this procedure we eould have easily disposed of the matter without straining ourselves unduly. But having regard to the importance of the case coupled with the facts that laxity in arguments had led to incorrect position of law. We strove our best to dwell deeply and explore the proper law to be applied. It may be sheer accident that in a case relating to mining lease, we had ourselves to do a bit of mining arid exploration. With this prefatory note, we set out the matrix of facts.
(3.) the respondent herein filed an application on 4-7-1980 requesting the appellants to grant quarry lease in respect of pink granite in survey nos. 20 and 21 of kudagali village of kanakapura taluk measuring about 300 acres. On receipt of the said application the respondent was asked to appear before the competent authority on 18-9-1980. As no action was taken on the basis of the application dated 4-7-1980 within 3 months in view of Rule 9(2) of the Karnataka minor minerals concession rules, 1969 (hereinafter referred to as the rules) the respondent believed that his application was deemed to have been rejected, because Rule 9 of the rules reads as follows: "9. Grant of quarrying lease. (1) on receipt of an application under Rule 4 the competent officer, on making such enquiries as he deems fit, may sanction the gram of quarrying lease to the applicant or refuse to sanction it; (2) when a quarrying lease is granted under sub-rule (1) the formal lease shall be executed within three months of the order sanctioning the lease or within such further period as the competent officer may allow in this behalf and if no such lease is executed within the aforesaid period, the order sanctioning the lease shall be deemed to have been revoked. (3) the competent officer shall forward to the controlling officer one copy of the quarrying lease as soon as the lease is executed." hence, he preferred a revision petition before the controlling officer under Rule 61 of the rules. On 19-12-1980 the said revision petition was allowed directing the appellants to consider his application for lease. On 4-12-1980 the tahsildar, kanakapura, issued 'no objection certificate' to grant quarry lease as requested by the respondent. On 6-1-1981 a notification in qls / 491 / mtj / 1080 - 81 / 9115 was is- sued by appellants granting an area of 100 acres for quarrying. The said notification was produced as Annexure-A to the writ petition. Among many conditions mentioned in the said notification, 2 conditions, viz., conditions nos. (d) and (i), read as follows: " the grant of the above lease is subject to the terms and conditions mentioned hereunder. (a) .. .. (b) .. .. (c) .. .. (d) the quarrying lease shall be subject to the Provisions of rules in chapter ii of the k.m.a. rules, 1969; (e) (h) (g) (h) (i) the area mentioned above is subject to verification after actual survey and demarcation. (j) .. On 6-6-1981, a corrigendum was issued by appellant-1 as per Annexure-B lo the writ petition informing that the area sanctioned earlier under the notification dated 6-1-1981 should be read as per revised sketch enclosed lo the corrigendum. On 3-7-1981 a report was sent by the senior geologist to appellant-2 informing that the respondent at the time of survey and demarcation desired to have an area of 50 acres/hccts. Only. The said report dated 3-7-1981 is extracted hereunder: government ok Karnataka office of the senior geologist, department of mines and geology, "Bangalore division", No. 12, 'amara', 13th cross, 1 hh main, malleswaram, Bangalore-3. Dated: 3-7-1981. To the deputy director, plans, department of mines and geology, Bangalore-1. Sub.: application dated 4-7- 1980 from sri.s.a. rashecd for a quarry lease for pink granite over an area of 300 acres/hects. In s. No. As per sketch of kudagali village, kanakapura taluk. Bangalore district for a period of 10 years. Rcf.: h.o. notification No. Ols / 401 / tnn / 1980 - 81 / 9009, dated 6-1-1981. In the notification under reference, the applicant was sanctioned a quarrying lease for pink granite over an extent of 100 acres/hects. In h.s. No. 20 of kudagali village, kanakapura taluk, Bangalore district. The grantee, at the time of survey and demarcation desired to have an area over an extent of 50 acres / hccts. Only. The area so desired is well within the area notified/applied and was duly demarcated on ground. The relevant survey and demarcation report along with the sketch and consent letter is enclosed herewith. The area so demarcated may pleas be conceeded and necessary corrigendum may be issued. The cost on survey and demarcation is Rs. 40/-. Yours faithfully, sd/- senior geologist. Copy to Sri g.a. rasheed, No. 360, p.p. block, bannimantapa extension, Mysore district for information with a request to approach the deputy director, plans, department of mines and geology, Bangalore-1 for execution of the lease. Sd/- senior geologist." on 21-7-1981, the respondent submitted a representation as per Annexure-D to the writ petition to appellate-1 requesting that the lease may be executed and also mentioning that the sketch enclosed to the notification did not disclose the entire land requested by him. As no action was taken on his representation dated 21-7-1981, he thought that in view of Rule 9(2) of the rules his representation deemed to have been rejected. Thereafter he presented another revision petition on 26-7-1981 requesting to extend the period to execute the lease deed. There was no action taken, he presented the writ petition before this court in the middle of 1989 for the following reliefs: " wherefore it is prayed that this Hon'ble court may be pleased to: (i) issue a writ or mandamus or any other appropriate writ or direction as deemed fit, directing the respondents to execute the lease deed in favour of the petitioner, pursuant to grant of lease as per annexures "a" and "b" in the interest of justice. (ii) issue such other appropriate writ or direction as deemed fit under the circumstances of the case in the interest of justice." earlier to these proceedings, Rule 3-a of the rules in respect of black granite came to be amended. It reads thus: "3-a. A lease of quarries in respect of black granite to government corporation, etc. (1) notwithstanding anything to the contrary contained in these rules, no lease for quarrying black granite shall be granted to private persons. (2) the state government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the state government: provided that in respect of any land belonging to any private person, the consent of such person shall be obtained for such quarrying or granting of lease." this was "further amended with effect from 2-7-1981 making it applicable to pink granite also. The appellants who were the respondents in the writ petition filed their objections objecting to allow the writ petition on the following grounds: a) that the writ petition was highly belated; b) in view of Rule 3-a there is a total ban to grant lease in respect of pink granite to private persons; (c) within 3 months from the date of grant no lease deed was executed and, therefore, the grant was deemed to have been revoked, the relevant paras of the slatemcnt of objections are 2, 4, 5 and 6 which are extracted hereundcr: " the writ pelition is liable to be dismissed for inordinate delay and laches in approaching this honourable court. There is no convincing explanation by the petitioner in explaining the delay. On this ground alone, the writ petition is liable to be rejected. Even in the notification dated 6-1-1981, the petitioner was granted quarrying lease of 100 acres and has not acted in terms of that notification. Therefore, he is not entitled for any relief by this hon'blc court. The petitioner cannot refer the judgment in writ petition No. 29210 of 1981. The principles staled in that writ petition cannot be extended to the petitioner in view of subsequent development in the case. In the mean lime, the minor mineral concession rules were amended by notification dated 23-6-1981. Thereby, Rule 3(a) was further amended by adding pink granite also. Therefore, there is total prohibition for quarrying of pink granite in favour of private persons. Therefore, the petitioner was not entitled to execute the lease deed. However, the petitioner has also not made any demand there after. He has kept quiet all along and has filed this writ petition after a lapse of nearly 8 years from 1981. The petitioner is not entitled for the reliefs as there is prohibition under the amended Rule 3(a) of the kmmc rules and this amendment was upheld by this honourable court as reported in 1981(2) kar. L.j. 595 and the honourable Supreme Court in civil appeal No. 3130 of 1985 and further the similar rules of tamil nadu stale have also been upheld by the Supreme Court in a case reported in AIR 1981 Supreme Court 711. Since the petitioner has not challenged the Provisions of the amended rules, he cannot be given any relief in this writ petition and he also cannot be treated as existing lease holder. The petitioner has not made any representation on 21-7-1981. The petitioner has not executed the lease deed within 3 months from the date of the notification dated 6-1-1981. The Annexure-A is deemed to have been revoked and he cannot execute the lease deed now after a lapse of 8 years. Further the amended Rule 3(a) also prohibits the lease of pink granite to private persons. However, the learned single judge without taking into consideration. (i) the prohibition imposed by way of amendment to Rule 3-a of the rules to grant lease in favour of private persons; ii) the inordinate delay in filing the writ petition; iii) Rule 9(2} of the rules allowed the writ petition. The learned single judge placed reliance on the earlier decision of this court in writ petition No. 29210 of 1981 decided on 4-7-1983 (m/s. Oriental select granites (?) Limited v the state of kamataka and others) wherein a division bench of the court had held thus: " the contention of the petitioner, however, is that the order regarding grant of lease having been passed on the 8th of june, 1981 long before Rule 3-a was amended, the said amendment not having been given retrospective effect, the petitioner is entitled to secure the lease deed in accordance with the order of grant made before the amendment came into force. Such a contention found favour with the learned single judge in writ pelilion No. 11643 of 1979, which is clear from the order made in civil petition No. 272 of 1980 decided on the 10th of november, 1980 by Justice swami. The learned single judge has taken the view that amended Rule 3-a not having been given retrospective effect, if there is an order for grant made prior to such amendment, the grantee is entitled to secure the execution of the lease deed from the concerned authorities. The decision of the learned single judge virtually stands affirmed as an appeal preferred against the said decision, namely, writ appeal No. 430 of 1983, was dismissed at the stage of admission. It is, therefore, clear that the view taken by the learned single judge stands affirmed by a division bench decision of this court in writ appeal No. 430 of 1983." the learned single judge also placed reliance on some more decisions of this court, viz., writ petition No. 17865 of 1984; writ appeal No. 1255 of 1986 connected with writ appeal No. 945 of 1986 and thus came to the conclusion that Rule 3-a which came into force on 2-7-1981 had no effect to the lease earlier granted. Accordingly, he allowed the writ petition and directed the appellants to execute the lease deed in favour of the respondent for 300 acres in survey nos. 20 and 21 of kudagali village for quarrying granites fixing the time for compliance 4 weeks.;