M/S.Sri. Shanthipriya Minerals (P) Ltd vs State Of Karnataka on 25 June, 2009

[Cites 6, Cited by 0]

Karnataka High Court

M/S.Sri. Shanthipriya Minerals (P) Ltd vs State Of Karnataka on 25 June, 2009

1) Whether the report of the Lokayukta . basis for registering the First Inforrnation 19.02.2009 against the petitioner and to 19.02.2009 seizing the iron ore allegedgg to here in the forest area as Well as the tools, ipvehircles and.1_na,o§hinery used for such illegal miningljand0W1fi--e1.he1".i.i:s1,ichV FER and the order of seizure the power of judicial revieyv .Articie'«22'6__ of the Constitution of India, are the questionsi that our consideration in the present "petition". ~ V :2)' is a registered Company under the iixct, 1956. Originally, the Government of

-..i.i'_Mysore executed a mining lease to an extent of 200 Acres ':~.l.l(80.9i'2v}:1et;tares) in R.M. Block, Sandur, Bellary District, in . 'ii.ia§§ﬁrgg'.%o£ K.C. Thimma Reddy, for a period ending upto 094.308.1976. The said mining lease came to be renewed on J/,.. ._ ?"w...

20.03.1991 by virtue of mining lease No.2119 for a period of ten years. Subsequently, the said mining lease was transferred from K.C. Thirnma Reddy in favour offthe petitioner on 29.11.1991.

3) The undisputed factual rnatripxmof the*c'ae:éj*'arei:t}w:a'tit '"9 the impugned iron ore mining is 1ocated_wi?_thiri the forest and the same is governed by the'~.p.rovis~ions, oi",:t11ev...Foresti (Conservation) Act, 1980 (for short__'_the:_F--C_ Act')~--rec1uiring the prior approval of the CentralC2overn:mentijVun'd--er Section 2 of the FC Actﬂfor oifthe. forest land for non--forest activity, viz. which had also been granted by the Central "Government; that pursuant to prior approval of I{ar'n.atal_raA,.P'.orest Department, the petitionerhas entered into the fourth respondent-The Deputy i'v:',gConservator Forests, Beliary Division; that the petitioner _ .fafteri.,:obtainin"g the lease and also after having complied with '*.'=..tiiej,'_. mandatory provisions, has been conducting mining ' operations in its leased area and within the area demarcated gm 5 by the Department of Mines and Geology; that the peti'tio_'ne'1--f_ has a subsisting lease as on date; that the violation * conditions of the lease agreement were't>vc0.rnp.laiinied.-Toagainst it the petitioner and the same was recorded the Lokayukta and that based on su<::_:h~.0_alleigatio'n,Aii respondent registered First Inforrfration Rieport/E dated 19.02.2009 for alleged forestiiloffenoesiii}

4) In this behalf of the petitioner that:

(i} the __ -irinipugned"«v:0i_'proceedings--FIR dated 2009i A " "seizure order' dated g119.o2';'2009Vereiileeie to be quashed, as the is i'or11yV___based upon the report of the which is yet to be accepted by tl1e"'e(}ovVern'ment;

V . (ii) the boltayukta report cannot be put against V the petitioner, as the petitioner was not it jifggiveri any opportunity of being heard before th L k kt ;

e o ayu a ._

(iii) assuming the respondents propose to action based on the Lokayukta report,__-the 'i"

second respondent ought to have given_:ian opportunity to the petitioner toreggplain -i.t_s*_ V case against the ﬁndings iniithé.Lokay'u,kta. «. V' report;

(iv) assuming the respondentsri1*iaiie__got'power:

to initiate action A.:petitioner under section 62.4': ithie Forest Act, 'iA<:t?_l,«iit11e same ought exercised arbiitra:i'i1_i3i/i,iibgillegailgif it unreasonably againstiptldet -- i 5.1) Per contra, iear1i,ed«.:_iGoVernment Advocate submits that,the,_':pI}o1;ay1iktairepnrtv being a report submitted by a Statutory can be the basis for ﬁling an FIR and the iciannoti disregarded. The learned Government _i_if_Apd'Vocate brought to our notice that before preparing the ii._i_iSateiI'itejiiiiagery, the Lokayukta Team has conducted ground it iiigsurvieyiigiand prepared survey sketch of the boundaries and 'i with other documents and other necessary input have 7 been given to the Karnataka State Remote Organisation for preparing Satellite imagery. .

Government Advocate, based on the instructi.ons the it Principal Chief Conservator of Forests, thatl:'i:--héi1.c_' Satellite imagery and the sketch p--repa.1l"edl 'there:on{_'vonVV the basis of the GPS is one of the technicalvctools for "i«de_nti_fication of encroachment at macro. lilevel. 1I9I'o'v»reve_r, the actual boundaries of the leased out.'a1'ea:"Wou_ld deterrnined at the micro level by the T . it 5.2} It 'contended that the mere fact that the petitioner was "'-not Lokayukta cannot be a ground toﬁcontend lthaitl no: legal action can be initiated by ' ﬁling persons who had committed illegality. The need not by itself be conclusive vl'7_evid.ence initiating action by way of ﬁling FIR against the .1 .1l_§'eI'spns 'iwholllhad committed illegality, but still could be a ii'-ll'_v~basi's setting the law into motion by filing FIR against hall"-._illeglallrnining in the forest area and to seize the illegally {, ...... ._._,_N_?m\:

mined iron ore and tools, machineries and vehicles used for such illegal mining. Filing an FIR is only an initiatiorrof action against the petitioner and the respondent _ investigate into the matter and therefore the pet£--tiron~er"'is noted entitled to seek quashing of the FIR on at that the respondent do not propc;se..__to irivgstigatevvlthe.xriatterl or that the respondents have already-_inv_estigate_d', but have not found any evidence againt-it_tIie Therefore, the prayer to quash the FIR is premature l K 5.3) The "aG'oVeniment Advocate further contends thatneitherlthe' application for issuance of Forest Tra§1risi't.Pass"'(e'i?flf'I", for short) nor issuance of the FTP nor Way Permits under Rules 146 and 149 of the by itself would not be a ground to vfpreiect the" Lo'l§ay'dl<ta report. The alleged inﬁrmity between 4: luﬁeldetngapvllsketch and the Satellite report also cannot be a tojreject the Lokayukta report or to quash the FIR ' -.__dated"ii9.02.2O09 and the seizure order dated 19.02.2009 as r .

the second respondenvauthority is still continuing investigation.

5.4) The learned Government submits that the respondents are reaclfditoligivegn~ot--ic:e-.t0Vp:thVe_ petitioner before such ﬁeld survey an'c1Ailinspecti.c.n" in presence of the petitioner and Controllger of:

Bureau of Mines, Bangalore;V.«_ alo'ng:_ norninee, not below the rank of the Director General, Survey of" that' there cannot be any the petitioner to continue the mining area and to return the seized; "niachin'eri_esl for 'such purpose, but without plrejudicevilto of the forest authorities taking action to seize "a_n'{:l__«co'n'f_iscate" the tools, Vehicles and machineries, vfgsubject the ﬁndings of the joint inspection and further 4: .invevstigationVVinto the matter to be made in the presence of dill."V..theffpetitio'ner, Controller of Mines, Indian Bureau of Mines, i'l"»..__Bang'aIore, along with the nominee of the Director General, ',»¢Ir'"'ﬁ§l@I __ 10 Survey of India, who is not below the rank of a Director, after giving notice to the petitioner. 5.5) Learned Government Advocaterippfurther "'si1'ornits:,e_*i that the seized articles would be' r.eturried' 2 to the petitioneri provided the petitioner gives an to the possession of the machinery as and when required bythe respanden-tior".h.qrthe'r:.investigation or by the as well as for seizure and might be initiated by the the provisions of the Forest Act, if necessary-, inifeitiirei.

view.._of the'above rival contentions, the following queisutiorzs, 'wh.ic}1.."are" similar to those raised in Writ Petition 2QOh§'i.v_disposed of on 13.4.2009, arise for our .,i_cons'i.deration in this petition:

(Ii? Whether the report of the Lokayukta can be the basis for the impugned FIR dated ' ?\~.

33 19.02.2009 and the order of seizure dated"

19.02.2009? 0 '' (II) Whether it is proper for this exercise the power of review under Article 226 of the '2Coi1..st"itutin_r1--.o£ "

India to quash the:_"'First""..Ir1forn:etig.;1. Report dated 19.02.20029~?h' (111) Whether the vreeayoihdent is empowered to seizevﬁ the"~.V'rrt§c--hinery, equipmerit..VL:Vj'-- iron. Lore vehicles belorr.gix12_gV t9--':V'_Vthe._V-pietitiorier. by an order qateiae ..1}~9.0éf;V2009¢;--r so.' "herring committed illegal en21i:iirrg».vop_era;tion in the forest area?'_ = V .2 V'

7) decidin,g____th.e above mentioned questions, in Peti'tion._No.'3:8"12_ of 2009 disposed of on 13.4.2009, we * have 'as 0 f'6----.}) 0.-.;e... No.1 V A Whether the report of the ' 'Lokayukta can be the basis for the impugned Fm dated 03.02.2009 and the order of seizure dated 03.2.2009?

14 conclude that at prima facie stage, no case was made out.

6.5) Similarly, it is settled law that the electronic evidence is admissible in evidence. It may also be ;not« .. 5. » proper for this court to jump into the conclusion"thatf. the respondents are not entitled to place.relianceivupo;rt be the satellite imagery, as the electronic'eivtdencel admissible in evidence; but the samexhas to; be i' substantiated by the responden_ts*~in the trial_ the competent court and the petitioineris also "entitled to rebut the same so thatthe rule of law would prevail. Therefore, to contend that it.t.wouldi not_._be for the respondents to initiate alawful action based on the Lokayu}cta_ .,or'.,the,:satellite sketches enclosed therewith. against acts alleged to have been committed by the petitioner by illegal mining operationencroaehing into the forest area in violation ' th--e:'co.nditions of thellease agreement entered by the ipetitioneriiivith' ~-the respondents-forest authorities, 'lacks,'legal_"_sanetity; because this is not a case where the"-«.respvondents propose to shut down an activity lﬁgwhich "is'1carried on by the petitioners lawfully, but

2..ﬂ.uinjortunately, it is the case of the respondents, of be course based on the report of the Lokayukta, that the Petitioner has allegedly violated the maintenance of ecology and environment; and whereupon the E5 observance of the laws enacted to protect the environment and ecology is sought to be ensured. 6.6) When the Lolcayukta ﬁnds fault against the executives for their failure to implement such laws to protect the environment and ecology, the petitioner projects the grievance against the executives for acting' .. » upon the Lolcayukta report. But, under circumstances, in our consideredw' npini49n,'th,e it executives should have a free hand.__to:_proiceed with investigation ﬁtrther into the matter ire do theirlviuty "

conferred by law and by people,"*~particuwlarlyAgiizhénh"

faced with money-power manﬁpowerii.

Otherwise, the respect'_fo.r'%«.lau.fVA and" would be lost.

6.According°to respondents, the petitioner has encroached into the forest area which is outside .. .. _Athe..':leasbed out area;'v---Learned Advocate General invited attentionithat when the leased out area has been the satellite map, the encroachment of the forest 'area stands clearly established; and that the satellite imagery obtained from the Karnataka . ._mE3'tate Remote Sensing Application Centre, which is a b agency for the entire State with regard to GPS and remote sensing, would prima facie show that the it "petitioner had encroached upon the forest area, outside the leased out area which is an oﬁence by 16 itself and the authorities are duty-bound to prevent such illegal encroachment and mining operations apart from seizing the machineries and to conﬁscate the_"-i.'''-- '' same by appropriate proceedings.

6. 8} Once there is prima evide_nce__to shout)' the petitioner had encroached upon the forest operating its activity outside the limits of the leased ' out area, learned Advocate Geri-era.lg_Vcontends the respondents have no option except'-to initiate' action against the petitioner by seizeithe minerals mined outside the'i1eaeeei7eer ..t.t5F1,t'Ch is a forest produce, togetherA"ivi'th.:"& and vehicles used the Veorf1rnission_ offheojfence and also to _conl":vsca_te.A same in appropriate proceedings;-" A T 2

8. Sim_i1ar1$5, 'the iseezond question, viz. whether it is givrop-e'r.fo'i' Court to vlelsercise the power under Article 226 of India to quash the First Information it ';rVReport dated,.'_'19~.Q'.2009, we held as hereunder:

'' * --- "..7.,1_) Issue No.11".-

Whether it is proper for this Court to it .. .,V_e.;cercise the power under Article 226 of the g. .. E.' 17 Constitution of India to quash the First Information Report dated 03. 02.2009? 7.2) The power of judicial review unde.ryArtic;§e i the Constitution of India is akin to the inherent» conferred under Section 482 of the Codeof Criminal = ' Procedure. It is a settled lawit thic-Steven"

inherent powers conferred on the4ttHigl2.VVCourt' 'very wide, the very plenitude 'of requires yreat caution in its exercise aindgthe be very careﬁtl to see that its Zdecision " such inherent power" ';;;b.ased--. ortysound.:p'rinctptes as held by the Apex" the. of; INDER MOHAN Goswnmv _ ,_ STATE - or vTTAnANciiAL_--r.Anoo:fiieRs reported in (2ao7)12 SCC' 1, because -thetvltpuwers conferred on this Court has iito,t)ev.spariing_lytejeercised (i) to give eﬂect to an order. under. Cc-de; (ii) to prevent abuse of . proceﬁs of Court,' and m(iii) to otherwise secure the ends cfj'ustic'e, 'butts any event not to encourage violations of the piroiiisionss of any statutes in force much any conditions' tgﬂagreement thereunder which empowers iﬁthe competent authority to take appropriate action ii.j.axgaiinst the law breakers and those who violate the 0 conditions of agreement.

7.3) In any event, such powers should not be ~ i exercised to stifle a legitimate prosecution and therefore E8 the Courts should refrain from giving a prima--facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court. "

9. On Issue No.III -- Whether the 's"e-Corldﬂhrespohéentdsxl3 empowered to seize the machinery, eqixipineint, iron'~ore vehicies belonging to the petitioay:e*r,> an-..yoj1jde':fdated 19.2.2009, for having committed ililegeiii.rninihgrroperation in the forest area, We have held as lr1ei*e'i.tr.1.der_:V._i "yc'3."2")"' - _ enacted The Forest (Conservation) . V _ in' order to prevent deforestation which cauisesgyyiiecological imbalance and leadsto environmental deterioration. The deforestation &_ cau._=;e's widesprea'd«.c_on.cern. Section 2 of the FC Act the.jr'estriction on de-reservation of forest or for non--forest purposes and as per H the said no State Government or authority . V -- shall" matte," 'except with the prior approval of the u.""--._l:"C'entralz Government, any order directing (i) that the forest shall be ceased to be reserved; (ii) that * any forest land or any portion thereof may be used for any man forest purpose; (iii) that any forest land may be assigned by way of lease or otherwise to any 19 private person or to any authority, corporation, agency or any other organization not owned, managed_orl'~._"~.. controlled by State Government, and (iv) that any.jore.st:l' is land may be cleared of trees which ' naturally.

8. .3) After the FC Act came into force, no.,mi.ning. lease/ licence can be ranted in't-..he"--forest area-whtthout 9' .. g the prior approval of the__Central,..Governrnent, which_.is a condition precedent, be.causei_l_Sectio'n._ofthe FC Act starts with non--obstante'; viz., "Notwithstanding .oo.ntaine'd in any other law for;-..the?'titne"belng in a State..." Therefore, can be carried on in the forest i_area,., e;fc:eptV"«:vit.h,g "the prior approval of the Central "Govemrnent_.:_"~.which~,means, even the State Governmentg cannot carry._~7'on any such non--forest activig_fy"in the fa.«e§t'¢rel: without the prior approval of '*--the"~-C{en--t'ral Governrnent. The fact that the mining activity to non--forest purpose is beyond doubt. ' ' pTi'nerenewal ofa lease is really the grant of [Va fresh lease as held by the Apex Court in DELHI _ lyybetzpmemm AUTHORITY Vs. DURGA CHAND A [AIR 1973 SC 2609] and therefore such prior approval of the Central Government in terms of " "Section 2 of the FC Act would be required when mining ' /st' 5 .

20 lease granted before the commencement of the said Act is renewed after its coming into force. 8.5} As the impugned quarry is located forest area and the mining lease was granted";onligg". ii". subject to the approval of the Central Govem_men,tﬁanc£.:: . agreement entered with' the State'J»éo'vemrn_ent, respondentsforest authorities haiie Ito.' "

initiate action against the pers«ons violate }th.eH terms of the lease and condit:io:1.s of' ~.t_he ~v'leas§e agreement and the KFZ iézmpotoers'-A respondents authorities totseizie, forfeit the forest produce; tools, igehiclesiV_an,d énachineiies that are used for illegalremooal of:the'forestprofduce. Such an exercise of po;wer;'«in 'ou"r'-considered opinion, cannot be termed as arl)-itrary or u__n'1'easonable. "

10.v_»~'~;.:Fit1i*ther,V.ithiS__C0urt in Writ Petition No.60023 of 'dispose;i"ot" 1.4.2009, while considering the question :7"g_that whenevei'iaﬁyigiconditions of the iease agreement entered ininto.vbetweenﬂ7tne mining Iease holder and the Karnataka Ailﬁepartiment are alleged to have been violated, the ii.':j.--3.1._1__t'I'"1."<)riV'1;ies of the Karnataka Forest Department are ,, ..,__ 22 the Central Government, which is a condition precedent, because Section 2 of the Forest (Conservation) Act starts with non--obstante clause C V "Notwithstanding anything contained in C other law for the time being in force in Therefore, no non--forest activity can be cameo on the forest area, except with the prior.approivaliiQfA.the _ "

Central Government, which rneans, even the Government cannot carry on such' non=fores't activity in the forest area' withoutlltfixepriorapproval the Central Government." faiet} mining activity amounts A . _ to noAn..--fo.re.st ' V --- 'beyond doubt.

if. 7) _The'renewal la-l.€a.se is really the grant of a freshvxilease Vas:Apex Court in DELHI DEvELoPi&L21}f2",. Aurtroiaiiry Vs. DURGA CHAND V.'S'C $509, and therefore such prior . C -a_pproVva--l"of the CentralGovemment in terms of Section ofv,the__«'Forest. (Conservation) Act,1980 would be "reg"L.¢.iredV 'whe'n,.V"Vmining_ lease granted before the commencement of the said Act is renewed after its ' ncoming into force.

* 7. 8) The impugned quarry is admittedly located C the forest area. Therefore, the mining lease granted if "to the petitioner in such forest area is subject to the conditions imposed by the Central Qovemment and /'/VJ .

aw....w-«=-

25 the fourth respondent has jurisdiction to initiate action in that regard.

1 1) It is also not in dispute that the decisio_ris~--..renidered 0 in Writ Petition No.60o23 of 2009 disposed ;e'i'__erd1:.4e.,2soi09_i'] and Writ Petition No.3812 of 2009 .disposed-- of on"V--i.1-f3V'§4i}2G;O.9i A squarely apply to the facts of the prései1t_ casei. Foilovizing the said decisions and for the reasons'_:stateé...._'Eherein, we pass the following: H

(i) the sketches attached the the basis for the 5 respondents .*to."-prosecute the FIR dated g 5!531?}-,.02vi.2O0§and the Seizure order dated 0 ' e gie9,,'o2g;2bo9;

(ii! to quash the First Information V Report. dated 19.02.2009 is rejected, giving he liberty to the respondents to proceed in Gaccordance with law, subject to the orders hereunder;

"*"',i§ﬂ% (111) 26 Deputy Conservator of Forests, Bellary Division, Bellary~fourth Respondent, shal1~_"*ii. inspect and survey the impugned V' ' leased out to the petitioner, in the pre.s.en'c.eV of the petitioner, the Controller' of '~«Mines','i. Indian Bureau of Mines, _ with the nominee not belovv thie=-ra11k Deputy Director by theiiiliﬁirectorlGeneral,lf, Survey of India;" ,_ ﬁapepropriateii decision as to thealleged.jer:1croaChriient by the petitioner with "refere'1ice_ to I survey records .,C5'thé.rv relevant''''''' material av'aila--b1:é:, 'do'ciirnents"'produced in this regard. Ifencroachrnent of forest land is found., the "respondents are at liberty to ,assess"the'damages caused on account of illegal' 'mining outside the leased out A. tools, vehicles .. ymviningarea and recover the same from the ' ,pe'titioner';' respondents are directed to return the and machinery to the petitioner on the condition that the same shall be produced before the respondents/ jurisdictional Magistrate as and when (V) 27 required by law, subject to the ﬁnding in the inspection to be conducted by the--g""i"

fourth respondent in the presence of it ' petitioner and Controller of Mines, Bureau of Mines, Bangaloreryalong w-tith~:

nominee not below the _ "

Director by the Director General, iS'urve.y India, referred to above; l The ore which iisﬂ'alre_ad;_y ._by the authorities vvhich_i_s:i' alleged to been mined ojatsidje shall be in the thefore-stiauthorities and the at.' liberty to take apipropriawpidecisioriiri the matter subject to the inspection and .«}-«assessment. of the damages and to recover thzefsariievfrom the petitioner;

the ﬁnding arrived at by the fourth «i"respondent--Deputy Conservator of Forests, Beliary Division, and the ii""~{Contro}ler of Mines, Indian Bureau of it "Mines, Bangalore; petitioner shall rectify the violation by removing the overburden waste whatsoever within two weeks from 28 the date of such order passed by the fourth respondent and the Controller of Mines, Indian Bureau of Mines, Bangalore;

vii) The respondents are directediiito"perInit;'t.]fie'--_V petitioner to undertake Inining A. V' operation in the leased "ant area not disputed by the forest'=aiut1j1oritiesVV;:i ' I

12) Writ petition is according1y.'_idisposed_iof, No oosts. Sd/3 Chiet Justice .....

Fudge * e«iiaiI:-indgxr»-«wpypss /" No ° é . or ' ijweb' 5 ""Sr"3'ElS /N0

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