Karnataka High Court
Shantha Exports Private Limited, ... vs The Director, Department Of Mines And ... on 5 June, 2002
Equivalent citations: 2002(50)BLJR2551, ILR2002KAR3960, 2002(4)KARLJ506, AIR 2002 (NOC) 244 (KAR), 2002 AIR - KANT. H. C. R. 2056, (2002) 4 KANT LJ 506, 2002 BLJR 3 2551
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT N.S. Veerabhadraiah, J.
1. This appeal is directed against the orders passed on I.A. No. 1 in O.S No. 36 of 2001, on the file of the Vacation Judge (Principal Civil Judge (Senior Division), Bangalore Rural District, Bangalore, dated 26-5-2001. rejecting the application for grant of temporary injunction.
2. The plaintiff, M/s. Shantha Exports Private Limited is a Private Limited Company registered under the Companies Act carrying on the business activities in granites throughout the State of Karnataka. Likewise, the plaintiff applied for issue of licence to conduct the quarrying operation of multi colour granite blocks deposited in Survey No. 67 of Kebbehalli Village, Kanakapura Taluk. The authorities of Department of Mines and Geology inspected the suit schedule property. The same was considered by the committee constituted under Rule 11 of the Karnataka Minor Mineral Concession Rules for which Forest Secretary was also a party and thereafter a notification was issued by the Department of Mines and Geology for inspection of the property in question. After inspection, a lease agreement came to be executed with effect from 1-9-1999 for the period of 10 years between the plaintiff and the Government of Karnataka, represented by the Department of Mines and Geology. The schedule property measuring 10 acres is a Government gomal land in which Forest Department has no right or control. However, the defendants 4 to 6 are unlawfully interfering with the quarrying operations of the plaintiff claiming that the suit schedule property is also a forest land. The claim of the defendants 4 to 6 is without any justification. As per the entries in the revenue records, the suit property remained as a revenue land, which was mainly used for grazing of cattle, and thereby it was classified as a gomal land.
3. The plaintiff filed a Writ Petition No. 32978 of 1999 before this Court for a mandamus to direct the respondents not to interfere with the rights of the plaintiff and to carry on quarrying operation in the suit schedule property. An order was passed in the said writ petition directing the appropriate committee to examine the matter afresh, after local inspection and to take a decision within a period of two months. The plaintiff made representation to the Competent Authority for conducting survey of the entire extent of land in the presence of the various officials to earmark the boundaries of the schedule property. The Assistant Director of Land Records issued notice to the concerned authorities for conducting survey. The Government wrote a letter dated 4-10-2000 directing the authorities to demark the area. The Deputy Commissioner, Bangalore Rural District addressed a letter dated 16-10-2000 to the Assistant Director of Land Records for conducting "durasthi work". It is in pursuance of it, a map was prepared demarcating the suit schedule property by letters A, B and C, the area which was leased in favour of the plaintiff, showing the same as gomal land and that a mutation has also taken place. It clearly establishes the fact that the defendants/authorities after examining the records satisfying themselves stated that the suit schedule property is a gomal land and the property was leased in favour of the plaintiff/company. Therefore, the obstruction by the defendants 4 to 6 is untenable. In spite of repeated requests and representations, the Forest Department went on obstructing the mining activities. Therefore, the plaintiff filed the suit for the relief of permanent injunction with an application for temporary injunction to restrain the defendants/authorities from interfering with the suit schedule property.
4. That apart, till the pending disposal of I.A. No. 1, the defendants are restrained from disturbing the plaintiffs peaceful possession and enjoyment of the suit land.
After this interim order, defendants 2 and 3 represented by the Additional Government Pleader filed the written statement stating that as per Government notification dated 10-3-1926 duly published on 18-3-1926, an extent of 125 acres in this survey number was declared as forest area, but the Forest Department held the actual area was of 137 acres 12 guntas i.e., 12 acres 12 guntas excess. The area in Survey No. 249 was fixed as 125 acres belonging to the Forest Department. The second defendant after verification of the spot countersigned the measurement and the same tallies with the report submitted by the Director of Land Records. These defendants are not the proper parties. Therefore, prayed to dismiss the suit.
That the respondents 4 to 6 filed a detailed written statement inter alia as follows:
That the suit property bearing Survey No. 67 was long back notified as forest land of Bettadahalliwade 'A' Block of Kanakapura Taluk. The lease in favour of the plaintiff is in contravention of the Forest (Conservation) Act, 1980, and the same is without the approval of the Government of India. The Government of Mysore vide notification dated 10-3-1926 notified the forest boundaries in Survey No. 67 of Kebbehalli Village, Kanakapura Taluk, constituting the reserved forest Bettadahalliwade 'A' Block. The boundaries and description of the forest area is clearly and distinctly defined. The forest area was also surveyed and demarcated in the year 1994 as per the orders passed in Writ Petition No. 22444 of 1992 by this Court and a Commissioner was appointed. As per the report, an area of 137 acres 12 guntas is falling in Survey No. 67 of Kebbehalli Village which is a part of Bettadahalliwade 'A' Block. The Commerce and Industries Department have granted quarry lease over an extent of 10 acres in Survey No. 67 of Kebbehalli Village vide notification dated 23-7-1999. The same was objected to by these defendants 4 to 6. The plaintiff preferred Writ Petition No. 32978 of 1999 before this Court to restrain the defendants from interfering with the quarrying activities. The said Writ Petition No. 32978 of 1999 was disposed off with certain directions. While the matter was pending consideration by the Government, the plaintiff filed the present suit by suppressing the material facts. In fact, the suit schedule property is a forest land. Therefore, the lease itself is bad as it is without the approval of the Central Government. The plaintiff has no cause of action. At no point of time, the suit schedule property was treated as a gomal land and denied all other averments, which are inconsistent with the written statement and prayed to dismiss the suit.
The learned Vacation Judge after hearing both sides by an order dated 26-5-2001 vacated the order of injunction by dismissing LA. No. 1 and allowing I.A. No. 3 filed in miscellaneous petition. It is this order, which is now questioned by the plaintiff in the present appeal.
5. The learned Senior Counsel Shri R.N. Narasimha Murthy for the appellant vehemently contended that in a suit for injunction what is required to be considered is whether there is (i) a prima facie case in favour of the plaintiff? (ii) the balance of convenience is in favour of the plaintiff and in the event if an order of injunction is not granted whether the plaintiff will be put into irreparable loss? It is contended that the suit property measuring 10 acres was leased in favour of the plaintiff by an agreement dated 1-9-1999 for a period of 10 years. The plaintiff has also deposited the required amount of Rs. 50,000/-. After all the formalities, while the plaintiff, M/s. Shantha Exports Private Limited having invested crores' of rupees and carrying on with the quarrying operation the defendants 4 to 6 put forth their claim stating that it is a forest land. This itself shows that it is an afterthought. The Forest Department having participated in the earlier proceedings in the meetings of the Committee and having kept quiet, it cannot be permitted to contend that the suit property is a forest land. It is clear from the earlier report that the portion demarcated as A, B and C in the map clearly identified as a gomal land. Therefore, the Forest Department, i.e., defendants 4 to 6 does not have any right, title and interest whatsoever. Even otherwise if it is found that it is a forest land according to defendants 4 to 6, their remedy is elsewhere for cancellation of the lease. Unless and until the lease is cancelled, the possession of the plaintiff is required to be protected. Therefore, he contended that the impugned order of the learned Trial Judge is not sustainable. Further, contended that the Trial Court has not considered and appreciated the facts properly. The question whether it is a forest land or gomal land is a matter to be considered at the time of trial. Till such time, the possession of the plaintiff has to be protected by restraining the defendants from interfering with the suit property. The mutation entry shows that it is a gomal land. When once the revenue records show that it is a gomal land, the principles laid down in the case of T.N. Godavarman Thirumulkapad v. Union of India and Ors., , are not applicable to the facts of the case. It is also sought to be contended that when the Government itself has leased the property, it cannot obstruct the possession of the plaintiff without cancelling the lease. On this ground, prays to allow the appeal by setting aside the order of the Vacation Judge,
6. On the other hand, the learned Advocate General Shri A.N. Jayaram contended that the impugned order does not suffer from any infirmity. The Trial Judge has exercised proper discretion. In case if the order of the Trial Court is capricious and unreasonable, it requires to be interfered with. Whereas in the case on hand, it is clear from the Gazette notification dated 10-3-1926 that the suit schedule property and the entire land in Survey No. 67 has been notified as a forest land. When once it is notified as forest land, until and unless it is denotified for any other purpose, it is not open for the plaintiff to contend that it is a gomal land. Absolutely there is nothing on record to show that the forest land in Survey No. 67 inclusive of the suit schedule property has been denotified at any time either under the Mysore Forest Act, 1900 or subsequently after the amendment of Forest Act. When the land in question has not been denotified for any other purpose it cannot be presumed that it is a gomal land. Therefore, the lease of the property is bad for want of sanction by the Central Government under the provisions of the Karnataka Forests (Conservation) Act, 1980. The learned Advocate General filed the affidavit of Shri Hari Kumar Jha, respondent 4 and also filed proceedings of the meeting held in the chambers of the Additional Chief Secretary to Government on 15-6-2001 regarding the grant of land for mining purpose to M/s. Shantha Exports Private Limited, Bangalore, consisting of the various heads of the departments. After a detailed discussion and examination of the documents, it was concluded that 10 acres plot was leased for quarrying in favour of M/s. Shantha Exports Private Limited, phoded in Survey No. 67 of Kebbehalli Village, Kanakapura Taluk, which falls within the notified forest area of Bet-tadahalliwade 'A' Block. The learned Advocate General contended that in pursuance of the directions issued in the Writ Petition No. 32378 of 1999 by this Court, the matter was considered and held that the suit schedule land is a part and parcel of the forest land.
Therefore, justified the impugned order. Accordingly prayed to dismiss the appeal.
7. In the light of the submissions, the point for consideration that arises in this appeal is:
"Whether the impugned order is capricious and unreasonable, suffers from infirmity? If so liable to be interfered with?"
8. That by a Gazette notification dated 10th March, 1926 published in the Mysore Gazette on 18th March, 1926, an extent of 1,083 acres 22 guntas in Blocks 'A', 'B' and 'C' of Bettadahalliwade was declared as a State Forest land as per Section 17 of the Mysore Forest Regulations (XI of 1900). The subject-matter which we are now concerned is Survey No. 67, situated in Block 'A' of the said notification, wherein the suit schedule property is a part and parcel of Survey No, 67 of Kebbehalli Village, Kanakapura Taluk. It is the claim of the plaintiff that insofar as an extent of 10 acres described in the suit schedule property is a Government gomal land for which the plaintiff applied for grant of licence with the Department of Mines and Geology for quarrying of granites deposited in the said land. It is the further case of the plaintiff that after a formal inspection of the land by the Department of Mines and Geology and also on the basis of the report of the Under Secretary, Revenue Department dated 4-10-2000, it was found that the suit land is a gomal, therefore, recommended for grant of licence. It is on the basis of the said recommendation, the Director of Mines and Geology executed a quarrying lease agreement in favour of M/s. Shantha Exports (Private) Limited, whereas it is the definite case of the defendants 4 to 6 that the suit schedule property is the forest land and at no point of time, it is denoti-fied for any other purpose much less as a gomal land. At this stage, it is relevant to mention the observation made in the Writ Petition No. 32978 of 1999, passed by this Court on 5-10-1999 which reads as follows:
"On the contrary, if the land forms part of the notified area, the authorities would consider the question as to whether it is barren land and as to whether the lands could be leased to the petitioner as well. If it is found forest area, then no question of lease arises. It is submitted that the grant of lease would be considered by invoking Rule 11 of the Karnataka Minor Minerals Concession Rules, 1994. Rule 11 contemplates constitution of a committee to examine the grant of lease which committee shall consist of Secretary to Government, Commerce and Industries Department, who shall be the Chairman. The Secretary to the Government, Finance Department, the Secretary to the Government, Revenue Department, the Secretary to Government, Forest, Ecology and Environment Department, the Department of Mines and Geology, who shall be the Member Secretary. They examine the claim for grant of such land to an applicant. The learned Counsel contends that even if it is a forest land provided the land is vacant and there are no trees growth standing there the committee can consider the grant of lease. Of course this aspect also will be considered by the authorities who will decide the issue after local inspection and measurement in pursuance to the directions given herein. A decision shall be taken in this behalf within a period of two months from today in view of the circumstances that lease was supposed to have commenced from 1-9-1999. That certainly does not mean that the petitioner is permitted to carry on quarrying operation in the land referred to above pending consideration as directed. Writ petition is disposed off".
It is with this background, now it is to be examined whether the plaintiff is entitled for the relief of injunction. In case if the land in question were to be forest land, naturally the plaintiff will not be entitled to seek the relief of injunction.
9. In the case of T.N. Godavarman Thirumulkapad, supra, while considering Section 2 of the Forest (Conservation) Act (69 of 1980), at para 3 thus observed:
"Paragraph 3.--It has emerged at the hearing that there is a misconception in certain quarters about the true scope of the Forest (Conservation) Act, 1980 (for short the 'Act') and the meaning of the word 'forest' used therein. There is also a resulting misconception about the need of prior approval of the Central Government, as required by Section 2 of the Act, in respect of certain activities in the forest area, which are more often of a commercial nature. It is necessary to clarify that position".
At para 4 it is further observed as follows:
"Paragraph 4.--The Forest (Conservation) Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest" must be understood according to its dictionary meaning. This description covers all statutory recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 8(i) of the Forest (Conservation) Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government records irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act".
It is in order to avoid controversy regarding the nature of the land in question, it is directed to all the State Governments to constitute an Expert Committee and at paragraph 5 in the judgment supra observed as follows:
"Paragraph 5.--Each State Government should constitute within one month an Expert Committee to:
(i) identify areas which are "forests" irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land of such forest;
(ii) identify areas which were earlier forests but stand degraded, denuded or cleared; and
(iii) identify areas covered by plantation trees belonging to the Government and those belonging to private persons".
Thereby, it is clear that before leasing of the property that there should be a notification under the Forest Act, identifying the area which are forests. In the present case, there is a clear notification notifying an extent of 137 acres 12 guntas inclusive of other extent of lands as forest land. The said notification was published under the Mysore Forest Act, 1900. Sections 3 to 30 of the Mysore Forest Act, 1900 in fact are reproduced in the Karnataka Forest Act, 1963 after repealing of Mysore Forest Act, 1900. The notification issued was in accordance with Section 4 of the old Act, which reads as follows:
"Section 4.--Whenever it is proposed to constitute any land a State Forest, the (State Government) shall publish a notification in the Official Gazette--
(a) specifying as nearly as possible the situation and limits of such land;
(b) declaring that it is proposed to constitute such land a State Forest; and
(c) appointing an officer (hereinafter called "the Forest Settlement Officer") to inquire into and determine the existence, nature and extent of any rights claimed by, or alleged to exist in favour of any person in or over any land comprised within such limits, or to any forest produce of such land, and to deal with the same as provided in this chapter.
The officer appointed under Clause (c) of this section shall ordinar ily be a person other than a Forest Officer; but a Forest Officer may be appointed by the State Government to assist the Forest Settlement Officer in the enquiry prescribed by this chapter".
So also, Section 4 in the Karnataka Forest Act, 1963 reads as under:
"Section 4.--(1) Whenever it has been decided to constitute any land a reserved forest the State Government shall issue a notification--
(a) declaring that it has been decided to constitute such land a reserved forest;
(b) specifying, as nearly as possible, the situation and limits of such land; and
(c) appointing an officer (hereinafter called the "Forest Settlement Officer") to inquire into and determine the existence, nature and extent of any rights claimed by or alleged to exist in favour of any person in or over any land comprised within such limits or in or over any forest produce, and to deal with the same as provided in this chapter.
Explanation.--(1) For the purpose of Clause (b) it shall be sufficient to describe the limits of the forest by roads, rivers, bridges, or other well-known or readily intelligible boundaries.
(2) The officer appointed under Clause (c) of Sub-section (1) shall, be a person not holding any forest office except that of Forest Settlement Officer; but a Forest Officer may be appointed by the State Government to represent it in the inquiry under this chapter by the Forest Settlement Officer".
10. From the reading of the provisions of the old Act and the new Act, it makes clear that the State Government has declared Survey No. 67 as the forest land which measures about 137 acres 12 guntas is not in dispute and the same is clear by the notification dated 10-3-1926. After the said notification there is nothing on record to show that out of the forest land, that an extent of 12 acres 12 guntas was deforested much less for grazing of cattle as a gomal land.
11. Even under the Karnataka Forest Act, 1963, no such notification is issued or forthcoming to show that the suit schedule property has been denotified for the purpose of gomal. It is no doubt true that an entry in the mutation is admissible and the same has to be taken into consideration. But in the case on hand it is unfortunate as to how the mutation has taken place without a notification by the State Government denotifying the land as gomal. Therefore, no reliance can be placed insofar as entries found in the mutation extract, which has taken place at the whims and fancy of certain revenue officials.
12. Under Rule 8 of the Karnataka Minor Minerals Concession Rules, 1994, which reads as follows:
"Rule 8. Restrictions on grant or renewal of quarrying lease or licence--
(1) No quarrying lease or licence shall be granted to any person other than an Indian citizen except with the prior approval of the Central Government.
(2) No quarrying lease shall be granted in any forest land:
Provided that a lease in such land may be granted by the State Government in favour of any undertaking owned by the Central Government or State Government, after obtaining prior approval under the Forest (Conservation) Act, 1980.
(3) No quarrying lease shall be granted in respect of any land notified by the State Government as reserved for use by the State or Central Government, any body or Corporation owned or controlled by the State or Central Government or for any other public or special purposes.
(4) No quarrying lease or licence or renewal shall be granted in respect of any minor mineral to any person if such person has contravened the provisions of the Act or the Rules made thereunder.
(5) The Competent Authority shall before granting or renewing a lease, consult--
(i) in case of specified minor minerals, the Deputy Commissioner of the district concerned; and
(ii) in the case of non-specified minor minerals, the Tahsildar of the taluk concerned.
(6) The Deputy Commissioner or the Tahsildar, as the case may be, shall send his recommendation within ninety days from the date of receipt of communication from the Competent Authority:
Provided that if, no recommendation is received from the Deputy Commissioner or the Tahsildar, as the case may be, within ninety days from the date of receipt of communication from the Competent Authority, recommendation for grant or renewal of a quarrying lease shall be deemed to have been made by him".
"Rule 8-A, Availability of land belonging to the State Government to be notified for grant.--(1) No area belonging to the State Government.--
(a) which was previously held or is being held under a quarrying lease; or (b) the quarrying lease granted in respect of which has lapsed under Rule 6; (c) in respect of which a notification has been issued under Sub-rule (3) of Rule 8,
shall be available for grant unless the availability of the area for grant is notified in the Official Gazette and specifying the date (being the date not earlier than thirty days from the date of publication of such notification in the Official Gazette) from which such area shall be available for grant:
Provided that nothing in this rule shall apply to renewal of a quarrying lease in favour of the original lessee or his legal heirs, notwithstanding the fact that the lease has already expired:
Provided further that where an area is reserved for use by the State or Central Government company or any body or corporation owned or controlled by the State or Central Government, issue of such notification under this rule shall not be necessary before grant of quarrying lease in respect of such area.
(2) The State Government may, for reasons to be recorded in writing relax the provisions of Sub-rule (1) in any special case.
(3) Any application for grant of quarrying lease in respect of areas whose availability for grant is required to be notified under Sub-rule (1) shall, if.--
(a) no notification has been issued under that rule; or (b) whether any such notification has been issued, the period specified in the notification has not expired,
be deemed to be premature and shall not be entertained, and the application fee thereon, if any paid, shall be refunded".
13. Sub-rule (1) of Rule 8 of the Rules makes clear that for grant of quarrying lease, the approval of the Central Government is a must. Rule 8-A further makes clear that there should be a notification regarding the availability of the land for the purpose of grant of lease for quarrying. In the present case, neither the approval of the Central Government nor a notification is issued wherein the authorities concerned have exercised their power arbitrarily in entering into a lease agreement even without verifying the records. In the absence of such notification, the lease agreement itself is bad. It is unfortunate on the part of the Under Secretary namely, Shri H.S. Ganesh Murthy who had permitted for issue of lease by his letter dated 4-10-2000. It is not coming out as to on what basis, he has observed that the Forest Department is holding an excess land of 12 acres 12 guntas. It is also not forthcoming from the said letter addressed to the Deputy Commissioner as to how he came to the conclusion that it is a gomal land in the absence of any such notification by the State Government. This itself shows that there is a lack of co-ordination between the Department of Mines and Geology, Revenue Department as well as the Forest Department, resulting in unnecessary harassment to the parties concerned.
14. Section 2 of the Forest (Conservation) Act, 1980 reads thus:
"Section 2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose.--Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing--
(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for re-afforestation.
Explanation.--For the purpose of this section "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for.--
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;
(b) any purpose other than re-afforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, water holes, trench marks, boundary marks, pipelines or other like purposes".
Even for the purpose of deforestation of the land that a notification is required. Admittedly it is a forest land. It is only on the basis of the report of the Talisildar, a mutation took place showing it as a gomal land. This itself shows that there is no notification as such and that too for deforestation of the land, unless there being a notification, such a forest land cannot be dereserved for any other purpose. Even on this ground also, the entries found in the mutation appears to be not correct.
15. The similar question came up for consideration in the case of Golden Granites v. K.V. Shanmugam and Ors., AIR 1998 Mad. 150, at para 31 thus observed:
"A mere reading of Section 2 of the Act clearly shows that prior approval of the Central Government is mandatory as well as a pre-condition of the grant of lease of forest lands for non-forest purposes. That a mining lease is a non-forest purpose, admits of no doubt. The impugned order states that the grant would be subject to a special condition that the commencement of quarrying operation should be done only after obtaining concurrence of Government of India, Ministry of Environment and Forest, New Delhi. The said special condition on the face of it, is not in conformity with the requirement of Section 2 of the Act in that it totally fails to give effect to the word "prior" "approval" and stated that quarrying operations should be commenced only after concurrence of Government of India, thereby defeating the object of the word "prior" and making the same otiose and redundant. It is the golden principle of interpretation of law that the expressed intention of the statute must be given its full effect and that such an expressed intention should not be tinkered with, by introducing something which runs counter to the said intention. What has been done by the Government in the impugned Government order is to make the prior approval of the Central Government as a post-approval by the Central Government".
16. Applying the same principles to the facts of this case without there being an entry regarding the availability of the land for the purpose of lease and in the absence of the notification under the Mines Act as well as under the Forest Act denotifying the land as gomal, the authorities could not have entered into such lease agreement. It appears, the respondents have opened their eyes only after the direction was issued in the Writ Petition No. 32978 of 1999, dated 5-10-1999 by this Court. Later on a committee was constituted by the Government issuing a notification dated 8-5-2001 which consisting of 14 persons as follows:
1. Shri Dr. A. Ravindra, IAS, Additional Chief Secretary to Government, Bangalore.
In Chair
2. Shri N. Gokulram, IAS, Principal Secretary to Government, Forest, Ecology and Environment Department, Bangalore.
3. Shri R. Suresh, IAS, Secretary to Government, Commerce and Industries Department, Bangalore.
4. Shri Jagajit Lamba, IFS, Principal Chief Conservator of Forests, Bangalore.
5. Shri S.M. Chalawadi, IFS, Secretary to Government (Forest), Forest, Ecology and Environment Department, Bangalore.
6. Shri G.S. Narayanaswamy, IAS, Deputy Commissioner (Rural District), Bangalore.
7. Dr. M. Basappa Reddy, Director, Department of Mines and Geology, Bangalore.
8. Shri M. Munireddy, IFS, Conservator of Forests (Forest Conservation), Bangalore.
9. Shri Kanwarpal, IFS, Conservator of Forests, Bangalore Circle.
10. Shri M. Prabhakar, Deputy Secretary to Government, Revenue Department, Bangalore.
11. Shri N. Ramaswamy Reddy, Deputy Secretary to Government, Department of Commerce and Industries, Bangalore.
12. Shri Harikumar Jha, Deputy Conservator of Forests, (Rural) Division, Bangalore.
13. Shri N.C. Nagaraju, Deputy Director, Industries Department, Department of Commerce and Industries, Bangalore.
14. Shri H.M. Khyum Ali, Deputy Director (DMG), Department of Mines and Geology, Bangalore.
The said committee after a thorough discussion in the proceedings of the meeting held on 15-6-2001, observed at paragraph 4 as follows:
"After a detailed discussion on these issues and examination of documents produced, it was concluded that the 10 acres plot leased for quarrying in favour of M/s. Shantha Exports (Private) Limited and phoded in Survey No. 67 of Kebbehalli Village of Kanakapura Taluk falls within the notified forest area of Bettada-halliwade 'A' Block".
This makes clear that the land in question is attached to the Forest Department and thereby the Director of Mines and Geology has arbitrarily exercised his power in entering into the lease agreement dated 1-9-1999.
17. However, the learned Senior Counsel Shri R.N. Narasimha Mur-thy relied on the Circular No. RD 72 LGM 98, dated 24-4-1999. This refers to the leasing of the land for mining by the authorities, provided it is a gomal land. There cannot be any dispute insofar as the circular is concerned. But the land having remained as a forest land, the question of exercising discretion in favour of the plaintiff for grant of relief of injunction does not arise.
18. The learned Advocate General brought to the notice of the Court the earlier proceedings in the Writ Petition No. 22444 of 1992 in which a Commissioner was appointed. After inspection of the property in question by the Director of Survey, Settlement and Land Records, it is noticed that an area of 137 acres 12 guntas fall in the forest area according to the 1926 Government notification. Thus, the fact remains prima facie, the schedule property measuring 10 acres is comprised in the forest area. Therefore, the contention of the learned Counsel Shri R.N. Narasimha Murthy is without merits.
19. Analysing the facts of this case, on the basis of the documents produced by both the parties, prima facie it shows that the lease of the property in favour of the plaintiff is an arbitrary exercise of power resulting in this dispute in not following the procedure laid down under Rules 11 and 17 of the Karnataka Minor Minerals Concession Rules, 1994. Though it is clear from the records that it, remained as a forest land, it is wrongly described as a gomal land that too, only to an extent of 10 acres in the vast extent of land and recommended for the lease of the property. Such an illegal act committed by the officials recommending the same to the Government for grant of lease on the assumed facts that it is the gomal land cannot be legalised by granting an order of temporary injunction so as to permit the plaintiff to do an unlawful act and to enrich himself when it is clear from the documents that the suit land is the property of the Forest Department. Merely, because the plaintiff continued to be in possession of the suit schedule property by virtue of the interim injunction granted does not mean that the discre-tipn has to be exercised in his favour under the present set of facts so as to legalise an illegal act.
20. For the foregoing reasons, I do not find any merits in this appeal. Accordingly, the appeal is dismissed. The parties shall bear their own costs.