Karnataka High Court
Smt K B Leelambika vs State Of Karnataka on 4 February, 2014
Bench: Chief Justice, B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF FEBRUARY 2014
: PRESENT :
HON'BLE MR. D.H.WAGHELA, CHIEF JUSTICE
AND
HON'BLE MRS. JUSTICE B.V.NAGARATHNA
WRIT PETITION No. 816 / 2013 C/W
WRIT PETITION Nos. 4974, 15400 & 38100 / 2013 (GM-MMS)
IN W.P.NO. 816 / 2013 :
BETWEEN
SMT. K B LEELAMBIKA
D/O BASANNA, SRI VIGNESHWARA,
8TH CROSS, S.S.PURA, TUMKUR-572 101.
... PETITIONER
( BY SRI L M CHIDANANDAYYA, ADVOCATE. )
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF FOREST ENVIRONMENT
AND ECOLOGY, VIKASA SOUDHA,
BANGALORE- 560 001.
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
COMMERCE & INDUSTRIES DEPARTMENT
(SSI, MINES & TEXTILES), VIKASA SOUDHA,
BANGALORE- 560 001.
3. PRINCIPAL CONSERVATOR OF FOREST
ARANYA BHAVANA, MALLESWARA,
BANGALORE-560 003.
2
4. DEPUTY CONSERVATOR OF FOREST
TUMKUR DISTRICT, TUMKUR-572 101.
5. ASST. CONSERVATOR OF FOREST
TUMKUR DISTRICT, TUMKUR-572 101.
6. RANGE FOREST OFFICER
TUMKUR RANGE, TUMKUR-572 101.
7. THE DIRECTOR
DEPARTMENT OF MINES & GEOLOGY,
KHANIJA BHAVANA, BANGALORE-560 001.
8. DEPUTY DIRECTOR
DEPARTMENT OF MINES & GEOLOGY
TUMKUR-572 101.
9. DEPUTY COMMISSIONER
TUMKUR DISTICT, TUMKUR-572 101.
... RESPONDENTS
( BY SRI NARENDAR.G, A.G.A. )
WRIT PETITION FILED PRAYING TO QUASH THE
COMMUNICATION VIDE ANNEXURE-A DATED 26.9.2012
ISSUED BY R-4 AND COMMUNICATION VIDE ANNEXURE-A1
DATED 31.12.2012 ISSUED BY R-7, DIRECT R-2 AND R-7 TO
CONSIDER THE APPLICATION DATED 29.11.2010 VIDE
ANNEXURE-L FILED BY THE PETITIONER SEEKING RENEWAL
OF QL NO.484 WITHOUT INSISTING UPON THE PETITIONER
TO PRODUCE THE PERMISSION UNDER SECTION 2 OF THE
FOREST CONSERVATION ACT, ETC.
3
IN W.P.NO. 4974 / 2013 :
BETWEEN
SRI VIGNESHWARA GRANITE INDUSTRY,
A PROPRIETORY CONCERN, REPRESENTED
BY ITS PROPRIETOR: SRI S.G.CHANDRAMOULI,
S/O GANGADHARASWAMY, AGED 48 YEARS,
HAVING ITS OFFICE AT PLOT NO. 134,
2ND PHASE, OPP: CENTRAL WAREHOUSE,
ANTHRASANAHALLI INDUSTRIAL AREA,
TUMKUR - 572 106.
... PETITIONER
( BY SRI L M CHIDANANDAYYA, ADVOCATE. )
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF FOREST ENVIRONMENT
AND ECOLOGY, VIKASA SOUDHA,
BANGALORE- 560 001.
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
COMMERCE & INDUSTRIES DEPARTMENT
(SSI, MINES & TEXTILES), VIKASA SOUDHA,
BANGALORE- 560 001.
3. PRINCIPAL CONSERVATOR OF FOREST
ARANYA BHAVANA, MALLESWARA,
BANGALORE-560 003.
4. DEPUTY CONSERVATOR OF FOREST
TUMKUR DISTRICT, TUMKUR-572 106.
5. ASST. CONSERVATOR OF FOREST
TUMKUR DISTRICT, TUMKUR-572 106.
6. RANGE FOREST OFFICER
TUMKUR RANGE, TUMKUR-572 106.
4
7. THE DIRECTOR
DEPARTMENT OF MINES & GEOLOGY,
KHANIJA BHAVANA, BANGALORE-560 001.
8. DEPUTY DIRECTOR
DEPARTMENT OF MINES & GEOLOGY
TUMKUR-572 106.
9. DEPUTY COMMISSIONER
TUMKUR DISTICT, TUMKUR-572 106.
10. ASST. COMMISSIONER,
TUMKUR SUB-DIVISION, TUMKUR-572 106.
11. TAHASILDAR,
TUMKUR TALUK, TUMKUR-572 106.
... RESPONDENTS
( BY SRI NARENDAR.G, A.G.A. )
WRIT PETITION FILED PRAYING TO QUASH THE
COMMUNICATION VIDE ANNEXURE-A DATED
20.7.2012/10.8.2012 ISSUED BY R-4, DIRECT R-2 AND R-7 TO
CONSIDER THE APPLICATION FILED BY THE PETITIONER FOR
QUARRYING LEASE DATED 12.10.2011 IN RESPECT OF THE
SCHEDULE PROPERTY WITHOUT INSISTING UPON THE
PETITIONER TO PRODUCE THE PERMISSION UNDER SECTION
2 OF THE FOREST CONSERVATION ACT, ETC.
IN W.P.NO. 15400 / 2013 :
BETWEEN
SRI S.G.CHANRAMOULI,
AGE: 50 YEARS, S/O S.G.GANGADHARASWAMY,
5
"SRI VIGNESHWARA", 8TH CROSS,
S.S.PURA, TUMKUR.
... PETITIONER
( BY SRI L M CHIDANANDAYYA, ADVOCATE. )
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF FOREST ENVIRONMENT
AND ECOLOGY, VIKASA SOUDHA,
BANGALORE- 560 001.
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
COMMERCE & INDUSTRIES DEPARTMENT
(SSI, MINES & TEXTILES), VIKASA SOUDHA,
BANGALORE- 560 001.
3. PRINCIPAL CONSERVATOR OF FOREST
ARANYA BHAVANA, MALLESWARA,
BANGALORE-560 003.
4. DEPUTY CONSERVATOR OF FOREST
TUMKUR DISTRICT, TUMKUR-572 101.
5. ASST. CONSERVATOR OF FOREST
TUMKUR DISTRICT, TUMKUR-572 101.
6. RANGE FOREST OFFICER
TUMKUR RANGE, TUMKUR-572 101.
7. THE DIRECTOR
DEPARTMENT OF MINES & GEOLOGY,
KHANIJA BHAVANA, BANGALORE-560 001.
8. DEPUTY DIRECTOR
DEPARTMENT OF MINES & GEOLOGY
TUMKUR-572 101.
9. DEPUTY COMMISSIONER
TUMKUR DISTICT, TUMKUR-572 101.
6
12. ASST. COMMISSIONER,
TUMKUR SUB-DIVISION,
TUMKUR-572 101.
13. TAHASILDAR,
TUMKUR TALUK, TUMKUR-572 101.
... RESPONDENTS
( BY SRI NARENDAR.G, A.G.A. )
WRIT PETITION FILED PRAYING TO QUASH THE
COMMUNICATION VIDE ANNEXURE-A DATED 21/23.6.2012
ISSUED BY R-4 AND LETTER ANNEXURE-B DATED 10.7.2012
ISSUED BY R-8, DIRECT THE RESPONDENTS TO CONSIDER
THE APPLICATION FOR RENEWAL DATED 24.8.2011 FILED BY
THE PETITIONER SEEKING RENEWAL OF QL NO.605,
WITHOUT INSISTING UPON THE PETITIONER TO PRODUCE
THE PERMISSION UNDER SECTION 2 OF THE FOREST
CONSERVATION ACT, ETC.
IN W.P.NO. 38100 / 2013 :
BETWEEN
SRI K.ANANTH RAJU,
S/O SRI A.L.KRISHNAIAH,
AGED ABOUT 30 YEARS,
R/A AREGUJJANAHALLI VILLAGE,
URDIGERE HOBLI, TUMKUR TALUK
& DISTICT.
... PETITIONER
( BY SRI L M CHIDANANDAYYA, ADVOCATE. )
7
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF FOREST ENVIRONMENT
AND ECOLOGY, VIKASA SOUDHA,
BANGALORE- 560 001.
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
COMMERCE & INDUSTRIES DEPARTMENT
(SSI, MINES & TEXTILES), VIKASA SOUDHA,
BANGALORE- 560 001.
3. PRINCIPAL CONSERVATOR OF FOREST
ARANYA BHAVANA, MALLESWARA,
BANGALORE-560 003.
4. DEPUTY CONSERVATOR OF FOREST
TUMKUR DISTRICT, TUMKUR-572 101.
5. ASST. CONSERVATOR OF FOREST
TUMKUR DISTRICT, TUMKUR-572 101.
6. RANGE FOREST OFFICER
TUMKUR RANGE, TUMKUR-572 101.
7. THE DIRECTOR
DEPARTMENT OF MINES & GEOLOGY,
KHANIJA BHAVANA, BANGALORE-560 001.
8. DEPUTY DIRECTOR
DEPARTMENT OF MINES & GEOLOGY
TUMKUR-572 101.
9. DEPUTY COMMISSIONER
TUMKUR DISTICT, TUMKUR-572 101.
10. ASST. COMMISSIONER,
TUMKUR SUB-DIVISION,
TUMKUR-572 101.
8
11. TAHASILDAR,
TUMKUR TALUK, TUMKUR-572 101.
... RESPONDENTS
( BY SRI NARENDAR.G, A.G.A. )
WRIT PETITION FILED PRAYING TO QUASH THE
COMMUNICATION VIDE ANNEXURE-A DATED 28.2.2012
ISSUED BY R-4 AND COMMUNICATION ANNEXURE-B DATED
31.1.2013 ISSUED BY R-2, DIRECT R-2 AND R-7 TO
CONSIDER THE APPLICATION FILED BY THE PETITIONER FOR
QUARRYING LEASE DATED 1.2.2010 VIDE ANNEXURE-E IN
RESPECT OF THE SCHEDULE PROPERTY WITHOUT INSISTING
UPON THE PETITIONER TO PRODUCE THE PERMISSION
UNDER SECTION 2 OF THE FOREST CONSERVATION ACT,
ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER
D.H.WAGHELA, CJ (ORAL) :
1. In all these petitions, common arguments have been addressed and the State Government has relied upon the affidavit of the Chief Conservator of Forest, Hassan Circle, filed in Writ Petition No. 816/2013, for final disposal of the petitions.9
2. In Writ Petition Nos. 816 and 15400/2013, the petitioners have sought quashing of the orders by which they are informed that, for the purpose of quarrying in the lands forming part of Sy.No.22 measuring 2 acres and 5 acres respectively, under the lease granted to the petitioners, permission from the Central Government under Section 2 of the Forest Conservation Act, 1980 ('the Act' for short) is required and hence, the petitioners to obtain necessary order from the Central Government under the Act. In the other two petitions viz., Writ Petition Nos. 4974 & 38100/2013, the petitioners' applications for quarrying lease in Sy.Nos. 22 and 68 respectively are not considered on the same ground of requirement of permission from the Central Government under the provisions of the Act.
3. The main common argument for the petitioners is that, the lands in question are not declared as forest land or reserved forest and hence, there could be no legal impediment for renewing or granting lease for quarrying 10 purpose in terms of the applications made by the respective petitioners.
4. Admittedly, the issue of period of lease is already resolved by other proceeding and the only issue surviving for consideration is as to whether permission of the Central Government is required under the Act for the purpose of carrying on quarrying on the lands comprised in Sy.No. 22 of Hodekallu Village in Tumkur Taluk and District and in Sy.No.68 of Aregujjanahalli Village in the same taluk and district.
5. According to the affidavit of the Chief Conservator of Forest, Hassan Circle, relied upon for the respondents, a map based on perambulation was prepared, using GPS instrument, by the Forest Department, to show the extent of the area having the characteristics of forest in the lands in question and it was found that, approximately 56.11 hectares of area was found to have the characteristics of forest. It is further stated on oath that the entire extent of land in Sy.No.22, i.e., C & D category land, was transferred 11 in favour of the Forest Department to establish Land Bank as per Government Order No. RD 106 LGP 88 dated 20.7.1994 with clear stipulations, inter alia, that in cases where forest lands were diverted for mining activities, C and D class lands, transferred to the Forest Department for the Land Bank, may be released and handed over to the Forest Department for raising compensatory afforestation.
Admittedly, no notification under Section 4 of the Karnataka Forest Act, 1963 has been issued in respect of the lands in question, but, the lands are to be surveyed for deciding on the issue. It is stated that, by virtue of the order dated 12.12.1996 of the Supreme Court in W.P.No. 202/1995, an Expert Committee was required to be constituted to identify the areas which are forests, irrespective of whether they are so notified, recognized or classified under any law, and irrespective of the ownership of the land of such forest.
6. It is further stated that, according to the working plan of the Reconstituted Expert Committee, the area which is 12 contemplated to be surveyed for submission of draft Section 4 notification is found partly to have the features and characteristics of forest in an area of 56.11 hectares in Sy.No.22 of Hodekallu Village. However, the extent of the lands covered by forest would be known only after statutory survey measurement. It is, however, generally submitted on behalf of the respondents, on the basis of the map showing the area which is presently having the characteristics of forest and the photographs of the area, that large tracts of the lands in question are covered by dense natural vegetation, while some parts have boulders of stone surrounded by small shrubs and other naturally grown trees.
7. Thus, in short, it is not possible to decide at this stage as to whether the lands claimed by the petitioners for the purpose of grant of lease for their quarrying operations are falling within the wider definition of "forest land", within the meaning of Section 2 of the Act. It is already decided by decision dated 25.10.2013 of the Division Bench of this 13 court in Writ Petition No. 10319/2013 that, upon a conjoint reading of the provisions of the Karnataka Forest Act, 1963 and the provisions of the Forest Conservation Act, 1980, prior approval of the Central Government is mandatory as well as a pre-condition for grant of lease of forest lands for non-forest purposes, including quarrying purposes. The expression "prior approval" would mean that, before a grant of lease is made, there should be previous approval of the Central Government and the provisions of Section 2 of the Act clearly places a restriction on the State Government or other authority to grant any part of the forest land or any portion thereof for non-forest purpose, except with the prior approval of the Central Government, which is condition precedent. Therefore, prima facie, it appears to be legal and correct for the State Government to inform the petitioners by the impugned order to obtain approval of the Central Government for conducting their non-forest activities in the lands in question.
14
8. However, in view of the facts stated on behalf of the respondents, to the effect that the lands in question are yet to be finally surveyed for determining the extent of the land which could be said to be the "forest land", it appears to be necessary and in the interest of justice that the respondents should examine the cases and claims of the petitioners for carrying on their non-forest activities after the survey is completed, and the features and characteristics of specific parts of the area are determined. It is stated by learned A.G.A., on instructions of the Chief Conservator of Forest concerned, that the survey may now be completed within a period of four months and thereafter, the applications of the petitioners may be re-examined in accordance with law and the result of such examination may be communicated to the petitioners in writing, as far as may be, within a period of six months from now.
9. Accordingly, the petitions are disposed in terms of the statement made on behalf of the respondents and without expressing any opinion on the factual issue as to whether 15 the lands in question are forest lands requiring clearance or prior approval of the Central Government in terms of Section 2 of the Act. It shall, however, be the duty of the respondents to preserve the present status of the land in question and protect it from being put to any non-forest purpose in the meantime. There is no order as to cost.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE ckc/-