Anuprasad Vs. the Secretary, Government of Karnataka (Mines Ssi and Textiles), Industries Commerce Department and ors. - Court Judgment

Excerpt:
- [ k.n. keshavanarayana, j.] indian electricity act, 1910 - sections 39 and 44 - offences under - tampering electric meter - complaint - charges - order of acquittal on technical grounds -finding of the trial judge that the prosecution launched on the basis of the complaint lodged by p.w.4 who was not an authorised person in terms of section 50 of the act -scope of section 50 of the act - held, the prosecution launched on the basis of the complaint lodged by the official of the electricity board, who was working in the vigilance squad and who detected theft of electrical energy, was in fact a prosecution launched at the instance of the state or electricity board. - the prosecution launched at the instance of any official of the electricity board who detected the theft of electrical energy was in reality a prosecution launched at the instance of the electric supply company within the meaning of section 50 of the act - further held, in the case on hand also, p.w.4 is an employee of the k.p.t.c.l. working as an assistant executive engineer in the vigilance squad. - the prosecution launched on the basis of the complaint lodged by p.w.4 was in reality a prosecution launched at the instance of the k.p.t.c.l. therefore, the prosecution launched in this case was at the instance of one of the persons named in section 50 of the act, as such, it was competent. - under these circumstances, the court below is not justified in holding that the prosecution was not competent, therefore, the acquittal recorded on that basis is illegal and is liable to be set aside. - on facts, held, the learned trial judge accepted the evidence of p.w.s 1 to 4 and the finding recorded is justified - there are no grounds to differ from the said finding. in fact, the respondent/accused has not questioned the correctness of the said finding. - since the amendment of section 39 was subsequent to the detection of the offence in this case and also subsequent to filing of the charge sheet, the amended section cannot be applied to the case on hand. under these circumstances, the respondent/accused is required to be sentenced in terms of the unlamented section 39 of the act. - sentence is modified in terms unlamented section 39 of the act - indian electricity act, 1910 - section 50 - the phrase "at the instance" referred in the provision - discussed. (paras 12,13,14,15,16,18,19) criminal appeal is allowed.ordera.s. bopanna, j.1. the petitioner herein is calling in question the letter dated 15-6-2009 and the order dated 26-6-2009, which are impugned at annexures-a and b to the petition.2. the brief facts are that the petitioner claims that he is one of the aspirants to offer his bid when the quarry of ordinary sand in block no. 3 of the river bed of the cauvery river is to be auctioned. the grievance of the petitioner is that the respondent 3 who had been granted quarrying lease on 1-2-2007 has been permitted extension despite expiry of lease period on 30-11-2008. in this regard, it is the contention of the petitioner that there is no power available to respondents 1 and 2 to extend the lease in view of the rule 21 of the karnataka minor mineral concession rules, 1994 (for short, the 'rules'). reliance is also placed on the order dated 17-7-2009 passed in w.p. no. 19678 of 2009 to contend that the hon'ble division bench of this court has already held that such extension cannot be granted and the same would be contrary to the rules.3. the respondents however seek to justify their action. more particularly, the third respondent would contend that an application dated 27-11-2008 was made indicating the circumstances under which the sand quarrying could not be carried out during the period for which the licence had been granted as he had been prevented by natural causes inasmuch as he had no approach road to the spot wherein the quarrying was to be undertaken. therefore, the respondents 1 and 2 have considered the request of the third respondent. in that view, since the extension has been made, it is contended that the same does not call for interference.4. heard the learned counsel for the parties and perused the entire petition papers including the records received from the office of the respondents 1 and 2.5. in the light of the rival contentions advanced with regard to the correctness or otherwise of the extension which has been made at the outset, sub-rule (2-b) of rule 21 of the rules would clearly indicate that the quarrying of ordinary sand is to be permitted after auctioning the same. to that extent, the decision relied on by the learned counsel for the petitioner would be applicable to the circumstance where extension is considered. however, under the proviso, it is indicated that the extension could be made in a circumstance where the auction could not be conducted and in the manner stated therein. in the instant case, though the position is not exactly so, but the question would be when the original lease period itself has not been spent by the third respondent, whether the said period could be granted to the petitioner for completion of the same prior to auctioning of the same. on this aspect of the matter, the competent authority would have to apply his mind to the facts and circumstances of the case where an extension is sought only to the extent of completing the original licence period.6. in the present facts, it is seen that the communication dated 15-6-2009 has been addressed to the second respondent by the secretary on behalf of the government. therefore, at the outset, it would indicate that the order impugned at annexure-b has not come into existence by way of independent application of mind by the competent authority. therefore, without expressing any view as to whether the third respondent has made out a case for extension of the lease so as to complete the original period itself, the present extension which has been granted which is a result of the direction issued by the respondent 1 cannot be sustained for improper exercise of power.7. accordingly, the order dated 29-6-2009 at annexure-b cannot be sustained and the same stands quashed. the matter stands remitted to the competent authority to reconsider the matter afresh keeping in view all circumstances as put forth by the parties and thereafter consider the request of the third respondent keeping in view the rules governing the same and pass fresh orders in accordance with law as expeditiously as possible.to the said extent, rule issued is made absolute in part and the petition stands disposed of with no order as to costs.

Judgment:
ORDER

A.S. Bopanna, J.

1. The petitioner herein is calling in question the letter dated 15-6-2009 and the order dated 26-6-2009, which are impugned at Annexures-A and B to the petition.

2. The brief facts are that the petitioner claims that he is one of the aspirants to offer his bid when the quarry of ordinary sand in Block No. 3 of the river bed of the Cauvery river is to be auctioned. The grievance of the petitioner is that the respondent 3 who had been granted quarrying lease on 1-2-2007 has been permitted extension despite expiry of lease period on 30-11-2008. In this regard, it is the contention of the petitioner that there is no power available to respondents 1 and 2 to extend the lease in view of the Rule 21 of the Karnataka Minor Mineral Concession Rules, 1994 (for short, the 'Rules'). Reliance is also placed on the order dated 17-7-2009 passed in W.P. No. 19678 of 2009 to contend that the Hon'ble Division Bench of this Court has already held that such extension cannot be granted and the same would be contrary to the Rules.

3. The respondents however seek to justify their action. More particularly, the third respondent would contend that an application dated 27-11-2008 was made indicating the circumstances under which the sand quarrying could not be carried out during the period for which the licence had been granted as he had been prevented by natural causes inasmuch as he had no approach road to the spot wherein the quarrying was to be undertaken. Therefore, the respondents 1 and 2 have considered the request of the third respondent. In that view, since the extension has been made, it is contended that the same does not call for interference.

4. Heard the learned Counsel for the parties and perused the entire petition papers including the records received from the office of the respondents 1 and 2.

5. In the light of the rival contentions advanced with regard to the correctness or otherwise of the extension which has been made at the outset, Sub-rule (2-B) of Rule 21 of the Rules would clearly indicate that the quarrying of ordinary sand is to be permitted after auctioning the same. To that extent, the decision relied on by the learned Counsel for the petitioner would be applicable to the circumstance where extension is considered. However, under the proviso, it is indicated that the extension could be made in a circumstance where the auction could not be conducted and in the manner stated therein. In the instant case, though the position is not exactly so, but the question would be when the original lease period itself has not been spent by the third respondent, whether the said period could be granted to the petitioner for completion of the same prior to auctioning of the same. On this aspect of the matter, the Competent Authority would have to apply his mind to the facts and circumstances of the case where an extension is sought only to the extent of completing the original licence period.

6. In the present facts, it is seen that the communication dated 15-6-2009 has been addressed to the second respondent by the Secretary on behalf of the Government. Therefore, at the outset, it would indicate that the order impugned at Annexure-B has not come into existence by way of independent application of mind by the Competent Authority. Therefore, without expressing any view as to whether the third respondent has made out a case for extension of the lease so as to complete the original period itself, the present extension which has been granted which is a result of the direction issued by the respondent 1 cannot be sustained for improper exercise of power.

7. Accordingly, the order dated 29-6-2009 at Annexure-B cannot be sustained and the same stands quashed. The matter stands remitted to the Competent Authority to reconsider the matter afresh keeping in view all circumstances as put forth by the parties and thereafter consider the request of the third respondent keeping in view the Rules governing the same and pass fresh orders in accordance with law as expeditiously as possible.

To the said extent, Rule issued is made absolute in part and the petition stands disposed of with no order as to costs.