M/S. Ramgad Minerals And Mining Pvt Ltd vs M/S. Muneer Enterprises on 26 August, 2009

[Cites 4, Cited by 0]

Karnataka High Court

M/S. Ramgad Minerals And Mining Pvt Ltd vs M/S. Muneer Enterprises on 26 August, 2009

Equivalent citations: 2010 (1) AIR KANT HCR 575, 2010 A I H C 1526, AIR 2010 (NOC) (SUPP) 1014 (KAR.), (2010) 4 KANT LJ 448

Bench: V.G.Sabhahit

 Andn  

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 25%: DAY OF AUGUST, 200.9 A

PRESENT

THE HON'BLE MR. P.D. DINAKARA1-I,»VctIr111:gi2?}m9s+rtCE1:.  it

AND
THE HON'BLE MR.JUsTICEfv.,,G. AHsABHAmT,""  

WRIT APPEAL No.5377 of zoeéjiera Mnztsnz/xi}
WRIT PETITION No. 2.373;; ogzoostem MMSI

WRIT APPEAL No.5377 of 2004 1;  _   H H

Between:

M / s. RaIngadi'Mineré..1_s and Miniing P_vt"Ltd.,

Nehru Co--0pe.rative,Co3ony,_   ' '

Hospet -- 583 203, _    

Now Represented ,by its" Dii'ect.oi;~,

Sri Shrenik_B,a1dota      ...APPELLAN'{'

[}3ji.Sri AKi'ishnan"t'Venugo'f5ai, Sr. Counsel for M.M.Swamy for
" '   ' ' '' Appeilant]

 x V ' M / S. Muneer' Enterprises,
 Mine Ownefs, Masjid--e--i1ahi Compound,
!'.FVS Compleaé, First Floor,

 Hafnpi Road, I-{ospet »-~ 583 201,

  f{~':pPe'sen'ted by its Partner,
'   Aieem S. Ahmed.

 to

The State of Karnataka

  its Secretary to Government,

.~ Department of Mines (SS1 and Marketing),
Department of Commerce and Industries,
M.S. Building, Bangalore--560 001

,4:  

 



4

Writ Appeal along with Writ Petition having been heard and
reserved, coming on for pronouncement of Judgment this day,
the Court delivered the fo|iowing:- 

JUDGMENT

CORE ISSUES:

1) Whether the renewal favour of the original lease holder, {iii/s.l.D:vaylnlia~ if 4.

Cements (Bharat) LimitedV}*«..vg:onyy effect from 25.1.1983 lw.ithleut' ohtai~ning prior permission under Sectéonlof Act is illegal and volegwlnlllayelleylieule rehder the mining lease-V nloh-obtaining prior approval'::-four'? lease in a forest '_Llnt}._.erV olflllthe FC Act would only rendelt. the:'rene'wal*-avoidable and whether the same u'ca_n -be -culiedelay Central Government by anV"exV-:po_st facto order under Section the transfer of mining lease by the ._oSrigivn.ai'tlelase holder {M/s.Dalmia Cements

7.('Bharat)"}_l..imited} in favour of the appellant if 'u_jhe"l'ei-n_ suffers from any legal infirmity? _ A Whether the in---principle I Stage transfer "--l.:granted under Section 2 of the FC Act ex--post V " facto can regularise illegality as of non-obtaining

-""}v-€""«.

Leer 9 lease bearing No.2339 came to be executed and registered as document No.77S;

(vii) that M/s.Ramghad Minerals (Dalmia),,,.,t_h"ett'g-'am. third respondent in the writ petition had lodged complaint stating that petitioner,'iha.d"«en"cro-achedt._":' upon the leased area in their p_oss_ession,_~_3andV therefore, boundary of the peti'tio'ner's m-inlinglleaseﬂ area should be surveyedby both xoff_iciais_o'f the Mines and Geology and and a report should complaint would be__ to stop the mining operation"'Vi:y._:thet"pe.tivtio'ner and therefore, the petitioner iprepared for-at joint survey of his area by both "the Dep'artrnentis and actually requested the V.3._[)i'rect:oriAof_:V--..Mines and Geology to make ar.*.an'gVen"1e'rit.s_ f{j'r"l.'making a joint survey of its area M' and subseq.u'e'ntly, both the officiais of the Mines and ﬁepartment and the Forest Department rnet 4'_'_,t'~on..VV263.2003 and after discussing the matter, Vi :'_4:"p*r'*'epared the minutes dated 27.3.2003 and came to lithe conclusion that the original survey and demarcation report made at the time of the grant of 12 shouid take immediate steps to stop work in the mines and take suitable steps regarding compliance of provisions of the FC Act and every States"--._ Government should promptiy ensure total cessati_on':'3:

of all such activities forthwith;

(xii) that pursuant to the :vsaid'"o~rder Hon'ble Supreme Court, Deputy:4*Co'n_servator"ofit K Forest, Beliary, by his coirnrﬁon 17.1.1997 issued notice' to.Vri'i\?'E/s:;i;>aVi'in._iAa Cernenvts (Bharat) Limited who hasVb.e'enl'v'girante_d-- lease (renewal) in theforestlA_area.:'..to'«.sto'p..Vw'o:if*i<ing of the mines with._ a 'if. they continue to do so, it would amouint to of the court;

__{"('>'{iii.) that of the said specific direction to'stop_vithe..'mining work as prior permission under lSecti.on had not been obtained as per the deci'sion€:.of'"" the Hon'ble Supreme Court in itit'C'-44"'V,.C.oda'varman's case, M/s.Daimia Cements (Bharat) C LiVm'i'té'd has stopped mining operations as the State C "Government had not obtained prior approval of the Central Government under Section 2 of the FC Act and subsequently also they did not take any steps / (W 3 %~ 14 directed by the second respondent and the Deputy Director of Mines and Geology, Hospet has issued a certificate on 31.1.2002 that M/s.Da|mia Cements"V-2:'-_:7. (Bharat) Limited has paid Rs.22,332/-, the baflanceii of the dues as per audit report arid"'there".¢weréhoit dues in respect of the above said Eea'sei'----_r2 (xvi) that M/s.Daimia'-.:'Cements.'--{yShaur~at)"' Limited filed O.S.No.53V/i-1.993 in"th.e:'r:o't2..rt of "th'eich}ii Judge and JMFC._,*H_ospet."addinVst_it_|fiVe.'Vwvrzitspietitioner for permanent-.:. that the covered by its be dismissed for non-

prosecution it __iA:('>'<'vii.i) that.._VV:M/s:Daimia Cements ( Bharat) i.irni,tied_since"~..,had aiways created trouble to the petit.id«her-l""*yiy.iih77;tvv.P.i\io.31690/2003 with ulterior V . mot'i'yes;«.V:th'o"ugh it had ceased to work in the area the lease, the petitioner fiied W..VP.:\iio.6304/98 before this court which was 2 'disposed of on 26.6.2001;

(xviii) that in writ petition No.6304/1998, M/s.Dalrnia Cements (Bharat) Limited contended NV'-.

g _-- \'=-.

.1-.sa.i«=~~~~ 15 that it was no longer interested in working in the mines situated in the iand adjoining the petitioner's land and therefore, no boundary dispute as such existed between respondent No.1 herein--writ*~:.f""--V."'v petitioner in Writ petition No.3169o/2003 an--:1: L Dalmia Cements (Bharat) Limitedvand-theT_4'said petition No.6304/1998 was disposed iivbyiiise-'tti',ngV aside the order passed by of"M__in'es:

same was found to be illegal, re~se.rjv.i:€giylibertyto the appropriate authority to' take' . iiin.V:a'ccordance with law;

(>Ei_x)*--th.af*'rerie.wa«E.:_"'of' the mining lease in favour of Ni/s.%Daln:ia4' (Bharat) Ltd. without obta..ir3i::ingi'~priorV'a'p.pro:ya.i under Section 2 of FC Act is iillefg-al, yAoid--ab~+i_nitio and non-est and there was no su--b"g-istitigiiiiiease"held by the company- M/s.Dalmia

--V Cem.ents"V:(.Bh"arat) Limited in ML 2010 as the lease if"ii:-tiadiibeevn" surrendered and lease deed book has also "surrendered to the competent authority and 'therefore,lease in favour of M/s.Dalmia Cements (Bharat) Limited had become nonexistent in the eye of law and area covered by ML No.2G10 had to be K 17 respondent through the Director of Mines and Geology seeking permission to transfer of miningﬁv. lease in favour of the third respondent, and the Government without applying its mind has the order on 16.3.2002 granting"'sa'nction transfer of the mining lease No.Ml.__ by it M/s.Daimia Cements (Bharat)'-atimitedvh for 'iron over an extent of 819:.acres.<'('33'1'.S'Se._hectare's)'"in Jaisinghpur village, Sand'Lirt_'TaiuiE,;:'Belliary.v"Di_strict in favour of the thiiti anwd~~l,o:n_ uthefstrength of such illegal '~no_n¥eix'istent.iiease, the third respond:ent_ ivventf»-_io'n »gg"corn--pIaining to the Forest Departmeintaas well 'Directorate of Mines and Geoioglv o.n falslerallegations that the area covered by :Ais.:i5e.ivng trespassed by the petitioner and th.e"'s.aild"'co_nduct"of the respondent resulted in sheer V _ harassme:nt'vto the petitioner;

re .-.__(x$<'iii) that the third respondent in the writ it3petiltion-appellant herein sent a complaint to the T Director of Mines and Geology alleging that certain A. things which are not known to the petitioner, because a copy of the compiaint has not been sent é/ 19 (xxv) that being aggrieved by the order of transfer of mining lease i\lo.2010 in favour of the third respondent, the endorsement dated 16.3.2002.

and order dated 27.5.2003, wherein it has ordered to conduct a survey and demarcation,'vof:.th:e::

boundary between mining lease 2339) and that of the _third 4ér'e_s'p-ondent~lfil'/sf;

Ramghad Minerals and Mining (MLl:sior2oio)V3V and required a report the of the second respondent, herein (writ :2: 'Writ Petition No. 3 1 690/ referred to a bove.

5. Respofiirientl petition No.31690/2003 -- appellant hieztein ﬁled statement to the Writ petition writ petition is not maintainable

-V either in'Vl.aw"or on facts and the same is liable to be 3' lifdisrnissed in limine;

"(ii) that the relief sought for in the writ "petition challenging the order of transfer of lease in favour of the third respondent and also the direction 24 for renewal which is pending consideration and in H view of the said order of transfer, third responde_ntV_:"-.._,_i'~..

has been in possession of the extent of area 'V' to earlier lessee- M/s.DaImia Cements "

Limited, and the said compa_ny:;"'rhradﬁ' surrendered the iease at any'iV_p*o_i.nt ol'.time a'pdljth.ew request for surrender was onlytua..:prQ_p0Sa'i same was yet to State

(xv) place without 'proposal much before 7the--.'the.ino.tice period and as such the same'isiyali_d;"'* it ,,._§"('>'V<vii.) thai:'iniere returning the lease deed book along with.%a,:"proposal to surrender the iease would inot"i...am'ou'nvt__ tioiiactual surrender until the State V . Gove'rnnv*£e.n't"accepts the same by passing the order .i,'.f:ai't€:r.4_con'iplying with the necessary requirements iike . smey and demarcation etc., (xvii) that in the absence of any order passed in that behalf accepting the termination, the application of the writ petitioner was stili pending 5/;1£?4'i'":

E 'M; 3 WWMVMW fourth (-iv) ythaltﬁe/s.parmia Cements (Bharat) Limited it approval of the Centrai Government . Act in respect of the area in question; that on a proposai forwarded by the sciovernment of Karnataka dated 30.12.1991 for 27 (xxiii) that the Director of Mines and Geology is competent and is duty bound to conduct the survey in order to settle the disputes between thew.»-__ adjacent lease holders and therefore, the prayerpppfor' quashing the endorsement cannot be grantedfanédiwpit5."= therefore, the third respondent sou:g'ht--.for of the writ petition.

6. The fourth respondent in t'he:'v.r1jit ;')'e*;iytiloi:'1~U;t1ion of India ﬂied objections staterr£e.1_'ttco2tte;1Ii.i12.g:.H~. _

(i) that the writA....pet§tion:.pe'rtai'n'si.(,"to locus standi of _tubew'Vissue of a boundary dispuiteﬁwith

(ii) that tyhelrninviing.iea.seVl\lo.2O1O obtained by the.':th'i'r!:lé Vres'poinidentAA_is notwatyvalid one; i ca~use of action is shown against renewal of mining lease i\!o.201O in favour of :2' 7-'~.__"i»ntention__to surrender the lease due to severe labour 29 the third respondent without a valid FC Act Clearance with respect to the area in question; 2

(ix) that it is the Forest Department {T to be in physical possession of the _su,rrende're'd*'-:E.a_:j:d;::: '- till the said land is rediverted uncler forestry purposes; and V l V .

(x) that the third =d_oes.'not:v'iAAha:tie any stake in the land in "q.iV:i'esti«on not have any approval 1.ind.er_ FC Vt~h_ere"iéoreymoclcupation of the area by iileﬁal.

7. 'refoinder to the objections statement filed the averring:

:.('i) the' objections statement filed by the 'JV."thirties'respondent made a false statement that (Bharat) Limited had given twelve notice to State expressing their y."pAroble--ms;

(ii) that it is impossible for the petitioner to.

encroach upon and work in the area granted in favour of the third respondent as immediately after the survey of northern boundary of the area covered in / 31 it agreed in principle for approval for renewal of mining tease over an extent of 201.50 Ha. in its favour.

8.1 The learned Single Judge after hearing the Senior counsel appearing for the petitioner ,the learned' . counsel appearing for Respondent No.3,-V the ii Respondent No.4 and the learned I-*IC;GP and 2, by order dated 10.1 1.2004'i11.e'1dV_%that' the petitioner S i' had locus standi to file the Writ"'*petiti'on asi"l'J1l./s~.iDalrr1ia Cements (Bharat) nearly 197 Ha of their rniningtareaiDepartment and atleast the available miningljarea been notiﬁed by the State Go.Vernme1r_itifor grant lease as required under Rule 59A'=_oVf.i t'n.e_ that the general public could have T=.p_particiipate.d applications for grant of the mining lease. Sincezthéehpietitioner was deprived of this opportunity, cheiisfan 'aggrieved person and therefore, he has locus standi * i'_to_r11ain'tain the petition.

8.2 The learned Single Judge further held that the renewal of lease in favour of M/s.Dalmia Cements [Bharat) 7-'~.__i"Karnatal<a* by its Secretary to Government, 34 and to grant him the iicence to operate 819.20 acres of the forest mining area in Jaisingpur village covered byiithe erstwhile mining iease ML 2010. n it

11. The petitioner in Writ petition contends: i V V i it

(i) that he is a mining contraictor-V..endi grant of lease of 819,20 acres""go.f'forest"'l--a.fiQlVA..iin iaisinghpur village, Taluk, Bel lary Distr i1Ti--i:eii«i ts (Bhara t) Limited stepsviito surrender the same iangd" petitioner in W.P.No.31iS9.Q/'2dVi§3'.iiih.a'd':i:_iia|so similarly applied for .--v».g_Vgrari:gt~i.:. ax lea'se_.....Qfv the same area and the aptpi*icatiori~s'are pending;

(ii) and second respondents-State of giiibeiparftment of Mines and Director of Mines and geology without considering the petitioner's and the other pending applications, arbitrarily, illegally and surreptitiously transferred the surrendered lease of M/s.Da|mia Cements (Bharat) Limited to Ramghad it have fiied statement of objections averting: 35

Minerals and Mining Pvt.Ltd., a party not eligible to____ the same, particularly vis--a-vis the petitioner;

(iii) that the said proceeding was challenged it W.P.No.31690/2003 (By Muneer::'Einiterprises)'f the said writ petition was allowed"bi/.V_prdeirii.'idated V 10.11.2004 and appeal filed the 0 in the said writ petitioaiis pe'n'dinngj42consideration'iin W.A.No.5377/2004 and iigilig';1i1i't:€:tdi:i gig/.'.i~q'.,ori|y with regard to canceliaiizionl: maintain statusquo iithevrefore, there is no to consider the pending V"min'ing and

(iv) he filed rei/ision before the third respondent was,%d4gis--m_issed by order dated 2.5.2005 and t'iiere_fore,:iii"_th_e'i~;wVrit petition is filed seeking for the . above refenie'd reliefs.

Xif1'2V.:iiiﬁespondents 1 and 2 in Writ petition No.23'782 of " (i) that it is true that petitioner had applied for grant of mining lease in respect of 819.20 acres of the / ' ' , A herein; V 43

(ix) that the learned Single Judge erred in Proceeding on the basis that a portion of the leased area measuring 1955 Ha. had been surrendered.~«~~.by.':'__'_rig' M/s.Dalmia Cements (Bharat) Limited which__gi's"..;als1o"~vi i not based upon the material on 'ainldi that renewal of lease in favour ofglthe ap:p'ell'an't without prior permission undelr'-S'ection '2._V_c_ji'~l.=V-C would be void and th':at.__thei"trans_fe'r~..effected"by_ M/s.Dalmia Cements vAi--'n~.'>favour of the appellant he'r"egin'*is illegalfvo<id"'abri.ii_il§io and non- est and,.con.se~c§ue'in:tly set-.:aséidev..th'e order directing measurementvo'f'tb~oundVarry"*«of' the area leased in favour of_u°the..viir'it4V'rpeti:tioner and the appellant (xV)"thVat:_ ha'vin'g__regard to the provisions of Section 2 Rules framed thereunder, the 'VVfindin'g..o'l'.yVth'e'V learned Single Judge is contrary to the xv'lijmiateryialwon record and therefore, arbitrary and ~ uapieio be set aside;

that the only mode by which M/s.Dalmia Cements (Bharat) Limited could have determined the lease or surrendered the lease is contained in Rule x /' »%Vff l.

46 that renewal of mining lease in respect of land in forest area without obtaining prior permission from the central Government under Section 2 of could be illegal, void ab-initio and non--est % would become non--existent c;anno't'..a't._ sustained and the same is liable to be._se--t_ aside}; " "

(xiv) that even where mining a'ct:lvity was._ca'rr"i'edV"onV without obtaining licencfe~~..or _w'ith'ostlt o'btaining""prVior permission under Section Hon'ble Supreme Court hasnot::_held.:'thatﬁthe- default on the part of the i_lés_sée"'-tar ithﬁeéovyernmetnt in obtaining .4'.

prior pelrmissionl' l'!"':'(:"«,.gf'1:';v"€,HvE":~,._'C"€['I"1'.l'.al Government under Section 2 o1"*..the.v only prohibit the lessee fromk;arry*ing o'u"t--..nVo.n_7f-orest operation in forest area ilnctudingy mz"n,iVn*g__of iron ore and other minerals; Question as to whether it is mandatory g to obtazin*V.pri'o.r permission of the Central Government 'éVVV":jundie.r& Act before renewal of the lease was manldatory and such action would render the renewal "void was in a fluid stage and in Godavarman's case A (AIR 1997 SC 1228) it has been specifically laid down that such transfer should be void; however, in ccccccc 71.-

$.._,_..../< 47 the same case, Hon'ble Supreme Court by subsequent order dated March 14, 1997 has.--.__ directed the State Government to process pending applications for grant of prior perrrissionifgi'Tia"

from the Central Government undea"'Se-ction' 2_,;,o:f'VI.FCx' Act and has directed that it is open"to lessees',,to start mining operations after pe.rm__issioVn,:f'roVrn' the central Government_unde,r*€e'ction__2 of'th.e Act and the case of the A.s:q'uarely fall within the ambit' of theft"C;ioda'vavirman's.V"case and therefore, in. View 1141 '.of3the_ Constitution of India the land and binding upon the "re_sponVden'ts »*a:n_d4therefore, the transfer woul.ci%i,:n"ot~ be non-est or illegal and void ab--initio and would o_nl-Ay_be""~i,rregular and at the most prevent the lessee« out mining operation in the

-- forest area "till proper permission has been obtained Section 2 of the FC Act;

.'('xvi')' that in view of provisions of Rule 29, Rule 14, T 'Rule 19 and other provisions of the Rules, mere if statement alleged to have been made by the appellant that he had 197 Ha of land in the forest 5' «\-

50 (xix) that the observations made by the Hon'ble Supreme Court in the case of Nature i_overs;'"--._ Movement vs. State of Kerala and others SCC 373) would clearly show that Hon'b|e Supr_en1je~.:

Court has laid down that non--o'bt"ai'ning"«,of;«pVr'ior:Vv'57' in approval under the FC Act can re.gnularised"'by if K issuing ex-post facto order by"--Central Gov'erfnmV'en't'" it and to that extent the in~terest'of't.h4aVVV'é.a.;9pellan't"sl1'all be safe-guarded.

15. appearing for the writ in the writ appeal submitted: C C If C it C

(i) gtihat iguestion that arose for ifa'detel'r'rriif1atio'nékbeforemthe learned Single Judge was lease in favour of M/s.Dalmia it Cerr:-ents_v~(Bh'aArat) Limited was in existence on the of transfer and could be validly transferred and it of the categorical pronouncement made by Hon'ble Supreme Court that mining lease or renewal of mining lease in a forest area without prior permission under Section 2 of the FC Act is illegal and void ab--initio would ciearly show that 5'i M/s.Dalmia Cements (Bharat) Limited did not have any existing lease on the date of transfer as the renewal of lease of M/s.Daimia Cements (Bharat):T¥c Limited on 2.3.1986 with effect from 25.1.1983:.~wasV~':'__'__i:4"..' without obtaining prior permission under Sec.ti_o:n~~..2 the FC Act and therefore iliegai, non--est and therefore, therewas no existing.-".l.iea'se which could be transferred by"V"i'lVi/s,Dairn'ia_ lcemelratsm (Bharat) Limited in favviour o_fi"th'ei':'aggbellant this appeah regarding writ petitioner-first respondent'intheVV'a_opeaii':aos also the contention that ___the Vpijiovr"tiermVi's's-iongurider Section 2 of the FC Act cainhe reg.uia:r§*sed by passing an ex-post facto order bythe Cen'tra'l'g:=.Government were not argued before

-V the i.earneVd.'SVingie Judge and what was urged before in gfthierioiearnled Single }udge was that the in-principle I Sitagenapproval granted under Section 2 of the FC "Act itself would ex-post facto regularise the lease in favour of M/s.Dalmia Cements (Bharat) Limited and the arguments submitted by the iearned Senior ,»»~_-~i,,\3 52 counsel for the appellant regarding locus standi of the first respondent-the writ petitioner and'-3.1"'-V suppression of the fact is a new argument wizich A argued for the first time in this ap_r:;ea.l._and'_4' 4' argument was not advanced before-i:_'lt'he :'iea'rn:ed Single Judge and therefore, can_n'o.t%be entenai'n.ed5;_:'"*

(iii) that there is no merit ini.the"1vco'n.tentionof learned Senior counsel""for-~t'i1€Vthat writ petitioner had "a4i_so.__take'n"a'd:§1anta:'ge of ex~post facto orderi. Jlootlained prior approval. FC Act before renewaiof '

(iv) that the" reﬁewagoﬂiease in favour of the writ petiti«ener~ wasV"rnad__e___after obtaining the approval under SVAecti*o:n"'-V2 of the FC Act and hence, the cH;uest.ion"'ofg--._ex§p'ost facto regularisation would not

-V arise; .

if *t._!1at'M/s Daimia Cements (Bharat) Limited itself

-- hadlladmitted that it had surrendered 197 Ha. of land "tothe Forest Department and that it had determined the lease and surrendered the balance extent of land by letter dated 27.3.2001 ar3d,,W._iinn" view of the

-=2 -i' ﬁg"! AW, 56 (Bharat) Limited and transferred to the appellant and that the writ petitioner was not at all ready for.-~._ demarcating the boundary of the lease executed favour of the appeilant and the first respondent:-'wriitlgi petitioner as it is clear from the avermentsg [in the writ petition itself that writ petAi'tio:n_er'l was _re--a.d'-,! to submit for joint survey of leased of the writ petitioner---_and',.i-iv1,isg_iDai-rrria Cemerits (Bharat) Limited allegedlyl's..t}a:i1sfeir.re:d""--.to the appellant;

'(xi) that respondent had obtained' the 'under Section 2 of the FC Act beforei theV'reVi1ewai;of the iease was granted in itsgfavour a'n'd..V:therefore, writ petitioner did not stand 'Ath~e:'sa__me footing and had locus standi to chailieinge'«V"."tghe'i{"transfer made in favour of the .V appe4l'la.n't;!s'|'n'ce the land which was subject matter of favour of M/s.Dalmia Cements (Bharat)

-' had been surrendered and was available for "notification in which case, the writ petitioner who if was holding lease in respect of(l:be;'adjoining land ggéﬁgsi.

57 can ﬁle application for grant of mining lease in respect of the said area also;

(xii) that the in--principle I Stage permissi.on:VV"'ﬂ"~a..V"'l granted under Section 2 of the FC Act is oiily respect of 201.50 Ha. and not in vr'esp'ect_ Ha. and therefore, the entire extent"of»:'area ofv_..l.¢ase 0' 819.20 Ha. could not havei§e--e.n tV"ransre.rred"'-bi""

favour of the appellant;

(xiii) that in view of theiloibs¢.~y;ai;m;lllme by the Hon'b_|e Supreme:,,:C_'ourt;'_ whi_l'e rejectinvg Zthve Special Leave petition order passed by thisiﬁcourtlelon.'f1:9'.4l'.'20'06,' the appellant cannot take advantage' o'f_tne that is passed as in-

principle ii. stage approval under Section 2 of the FC aquestion of this court considering the dues-tiion'a{s_vlt_o'vvhiether Central Government can pass _ an e'x--p'ost""l'acto order so as to regularise the "2'v.lfelnevvalVV"'made without obtaining prior permission .0 uqlderil Section 2 of the FC Act cannot be decided by 0 this court, as this court clearly observed while passing the interim order on 19.4.2006 that the said question is to be decided by the Ceﬂngtral Government 0 0 58 and the same is confirmed by the Supreme Court and the special leave petition filed against the saidf'-.g order has been dismissed;

(xiv) that the question of central Gove_rrr;rien_t'~vl'4 % granting ex---post facto permission inliilregulyalrisi-ngthe._"' renewal which is illegal, void ab-initioﬁand n.cayn}?est would not arise, as a void orderwhich is i'lleg'a!; void ab-initio and non~est'~~..é_cann'ot" f--:'be::°'rectified "for regularised and therefore, by the learned Single§Ju'd;g§: is §__ustified;"~

(xv) that the c;!efi.n'.it'inn"ofj:t,he--. 'void' in Black's Law Dictyionarwﬁv pages 1573 and 1574 is defined as " null, i4'ri.effe.:ctual, nugatory, having no _..,.&legal«§;forc~e orlllbinding. effect enabling any law to suppoVrt.,VAthe*«purpose for which it was intended and t'.heV"facts"wihichfare void and incapable of ratification;

-V (xvi)""" thvat.'tVhe renewal of lease without obtaining it "fprior.yperrnission under Section 2 of the FC Act would réndeir the same void and no order of regularisation of such occupation or encroachment could be passed after FC Act came into force without obtaining prior approval of the Central Government in terms of 68 and necessary directions be issued to the Central Government to pass orders on the application of the appellant for granting permission under Section 2 of;t"~.g the FC Act so as to enable the appellant to carr),t...o'n.':'__'_:f;~ mining operations;

(v) that in any view of the mattergtlhelfmdi'ngg-iofl.th--euV._|"

learned Single Judge that renewal of"--.rnining lgea.se"in the forest area without obtai'n'isn:g prior"p_errniss.i1on under Section 2 of the VF-'fC~..l_l-\ct_<ismi_|'legal;'void ab¥in'itio and non-est and would rend_er'f'the l_easé.j'V_~d__e.ed non~ existent and the'rlef:ore,:=__co._uld': ,transferred to the appella-nt is iavv and decision of the Hon'ble Su'pre"m_ecourt*'in:'_"_.Godavarman's case~I and II ca..n.§noti'be susta.inVed_and is liable to be set aside; :thalT_tA«.the"~--.order of the learned Single Judge oifder, ordering joint survey of the land «Vlease4d.i'nJ favour of the appellant and the first Ru"ljrespoyndelnt, is also liable to be dismissed as the

--fj.sa--m'e"is passed as a consequence of declaration that the transfer in favour of the appellant was illegal, A void ab~initio and non-est and the writ petitioner {7"*' _ Rule 37 of the MC Rukes deals With transfer of iease hllaad the same reads as foliowsz 78 operations for a continuous period of more than two years.}

24. Ruie 28~A of the MC Ruies reads thus: __ _ 28-A. (1) Where a 3essee is un_able_to in the mining operations within a eperiodsoﬁf at from the date of execution of the-.__m'i'ning lea_::e; or' V discontinues mining operations Ahfort van 1 v~pe'r-iod' exceeding two years for reasons his control, he may submit an."a'ppii-catiVoia..¢to the"St'ate Government explaining same at least within six monthsfroem't.he._date_ itsllapse:

PROVIDED" h"as3_'not been revived under this provisilormifor n1'orev"than_:twice during the entire period of'lthelV|ea.sVe_.v (2) uE"ve_ry' aV_pdpti'cation'."under sub-ruIe(1) shall be accompanied by afee 'vofAl-'!s.§0l0/~.

A A The State "" "Government on receipt of an ":_app1|'i'eation_ rnade"'u_nder sub~rule(1) and on being satisfied aboutttheva'd.eqU.acv and genuineness of the reasons or non--x:_ommencenient of mining operations or '.discontinuance thereof taking into consideration the specified in the Explanation to rule 28, pass an i voroer_r_eviving the lease.) 81 PROVIDED that no such order shaii be made without giving the lessee a reasonable opportunity of stating his case.

26. Section 2 of the FC Act reads as follows:

2. Restriction on the dereservation of fcarestsg or use of forest land for non-forest plsrposk.-:,,'¥'ii. ' Notwithstanding anything contained ir;"any"ot.he_r the time being in force in a State, no Statei "(3ovei*nfn.r,snt. "

or other authority shali make, vexcept ﬁwitih thejpfrieryy approval of the Centrai Government,"' ~a_ny --"ord'er directing ~ , _ ,

(i) that any reserved' 'forest the meaning of the expressio_n i.."'V_resera'/ed'*fovr.est"

in any |aw_forD the time:beingLi'nf.i'force fiiznvthat State) or. a,ny5%p:orti~on« _th-e.reo__f, fshaii cease to be reserved;_..

(ii) 'that _any_iiforestjiland or any portion thereof may"i3'e used for any non--forest V. ' '.- . . . . . .. 'V forest iand or any portion '' thereof' be assigned by way of lease or otijérwise to any private person to any ., egauthority, corporation, agency or any other organization not owned, managed or controlied by Government;

(iv) that any forest iand or any portion thereof may be cleared of trees which have grown naturaliy in that iand or portion, for the purpose of using it for reafforestation. 86 State throughout the Country, without the prior approval of the Central Government, must cease forthwith. It is, A therefore, clear that the running of saw"-«',_:"

miils of any kind including_,veneer."or"4"3"

plywood mills, and mining of avny,_-mirielraplhl it are non-forest purposes 'and. areV,'.«".l..': C' therefore, not permissilalei'withohut~._prior; approval of the __Centrai__..u'Gove.rnment.,__, Accordingly, any a_cti,vity~~.._is,A'prima facie violation of the-

Forest Cons;e:\r.s/atioln V' 'Every State ,r_n_us.t prorrjipitayuensure total §:essatijgn"" or°~é_i:.: lis'ucr'i;, activities

28. In vievv"--«.,oi'v the lciirechtions issued by the Honfble Su_p'rer_ne in Goidav-e;rrnan's oase--1 referred to above, notioe Director of Mines and Geology to ':'VM.,i.s.pai:;:,j,;:ll c_é;:§:§z§is (Bharat) Limited on 1.2.1997, as

- -.fo'11QWs;

"Wour attention is invited to the order dt.12.12.96 Hon'b3e Supreme Court of India passed in if .._4"'W-.-E3.(CivE|) No.2G2/95 fiied by Sri.T.N.Godavarman :."Thirumu|i<pad vs. Union of India and others connected with W.P.No. (Civii) 171/96.

2. The Hon'b|e Supreme Court in its interim order dated 12.12.96 heid that mining activity (Operations) 92 the State Governments, notwithstanding any order or direction passed by a court, including a High Court or Tribunal, to the contrary". V 31.3 Mr.Krishnar1 Venugopai, learned appearing for the appellant also reliedigpon oi?' the Horfble Supreme Court in Godavar:ma1i_"st.i:ase_ 2003(1) SCALE (page--4) wherein Hponfbiet ASi,1jpre_Uibe'AC5o'uert. has observed as follows: V H :

"On consideration- Central Empowered Committee datedV-Decernberg'1iii,i,,~-E002, we issue the foJ|owi!°-Q'fr'fiiherldir¢I:t.ion's.r"'Viif' V

1) Mining be:.:_p_er.initteij in Forest Areas where svpecific'p'rio_r:'ap;3.rova£ under Section 2 of the Forest (f:~onservatioiifi)a_ll';?ix;:t,i»41980 has been accorded by the VVv'M.iVnistry._ " Eurivironment and Forest, V Govergninent oflndila. However, in view of this court's '""--ci.rae'ié._8ai,eci '1g4.2.2o'o'U""p'assed in I.A.|\Eo.5-48 no mining V"--..,aci:i\/ity, isvplpievrrnitted within areas which are notified as Sanetgary' Na.t_io'n;a'i"'.Park under Sections 18, 35 of the Wild Life '«{4_|':'F01;.EC1IlO:[.1)A' Act, 1972 or any sanctuary, National H ' 'Park or ..Game Reserve declared under any other Act or Ruie:».__mad'e thereunder even if prior approval have been A j'cbta.i_n,e'd from the MOEF under the FC Act in such an ._,.u""are:a".

Mr. Krishnan Venugopai, learned senior counsel appearing for the appellant has also relied upon the order / 5' '~«--»-«%""

out afforestation hopefuily on an area greater to larger than the area on which the trees are to be cut. in this view of the matter, the permission to carry on the mining operations is granted".

31.5 Mr.Krishnan Venugopal, learned . appearing for the appellant has also invited otirl'attej12t'iCn_=to'-_ Hi' the decision of the Hon'b1e Suprerhe EMPLOYEES UNION (R) vs. or ENDIA 'tjriamks [(2002)2 SCC 333] wherein the HQn'h.l'e.St1_prenievCourt has not approved the observations _:I1a'd.e3'i:n San1atha's case and has observed as follows:

"while. vie-.V-«.have"«ViVst:ong' reservations with regard toithe coi'reetjn.ess=._a6f«the majority decision in Samatha ca'se,l...v ...... S V consideration of "the contentions of the 11earned~SVe--nior' for the parties referred to above in the vV'li_ght--Vof pppririciiples laid down by the I~ion'b1e Supreme ' the above referred cases, it is clear that Hon'ble 'Court while laying down that renewal of the mining if-leasewin the forest area without prior approval under Section the FC Act is void, did not express that the said renewal would be illegal and void ab--initio or non--est and lease ;~ra\ 105 would be operative only after the expiry of twelve months from the date of notice.

40.2 The notice issued by M/s.Da1mia (Bharat) Limited would also clearly show that 2 dated 27.12.2001 gave twelve mefitheipjgneeieie respondent with effect from l.4.2G'0.l andvvould from 1.4.2002 and only thereafter would come into effect and the _under the Rule would clearly show that only the notice period of twelve terminated and not on the of notice and mere fact that M/s.Dalmia had surrendered the Ieaseppdeedfor action in response to the letter of the'D1ireVc'tor and Geology which is prior to the expiry pf twelve.imonthsfnotiice and also the fact that he has paid the _ldues.Vwhich before the expiry of twelve months stand «igi«ve17Lfin'ii"the notice would not by itself mean that the 'V(}o_vernr;:1ent had accepted the termination notice before the of twelve months as there is no order passed by the Government accepting the surrender before the expiry of twelve months. 5' __ 107 M/s.Dalmia Cements (Bharat) Limited had stopped mining operations in the last week of January, 1997 as admitted in its termination notice dated 27.3.2001 that in view oijfthe provisions of Rule 28~A of the Rules the lease had A' 42.2 It is clear on scrutiny of the eontents''offpvrovis'ioIi.i: .4 '* it of Rule 28 and Rule 28--A of the Rules that the lapse of lease would be Rule only deals with the revival of the thieredis no order passed by the State Governrrii'ent'-- the lease in favour of M] s.Dalrniap had lapsed as required under 'Rules and since there was no order declarinig"--__that in favour of M /s.Dalmia Cements Limited had lapsed, question of making an app'licatio--n_ under Rule 28--A of the Rules would also not ari.se.V ' '' ﬂV42.3au .. clear from the perusal of the impugned «iorde2rfjthat'«--the" learned Single Judge has proceeded to quash order dated 27.5.2003 ordering joint survey as a._oonsequence of quashing of the order of transfer dated 1.6.3.2002; that the writ petitioner» first respondent herein 109

44. The Writ Petitioner in W.P.No.23782/2005 __v_vho has sought for consideration of his application for lease in respect of the area alleged to have been 1 V' by M/s.Dalmia Cements (Bharat) Liniite-dp is: 2 dismissed as we have held while aaseeeiagi the poirtts determination that M/s.Da1mia Cenierits (13ha:at.}Liai~ited'1iad not surrendered any portion theé.leased area aridtheiiarea is therefore not available for notiiicatiioiii :'or___i"o--r_';cVo_nsideration of the application lease petitioner in W.P.No.23782/20'OSﬁ,.a,rid" 'iW.§»;No.237s2 /2005 is liable to be iJ::f:~§p 3 V

45. Issue Nos.6 and 7 and pass the following : V"

ORDER pa) writ AopeaiiNo.5377/2004 is allowed; e..('i'ii.i)_..:jl3rder dated 10.12.2004 passed in 'T?..__w.5vRi.iNo.31690/2003 aiiowing the writ petition impugned in the writ appeal is set aside; 5:.

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