M/S. Lakshminarayana Mining Company vs State Of Karnataka Rep By Its Secretary on 24 April, 2009

[Cites 6, Cited by 0]

Karnataka High Court

M/S. Lakshminarayana Mining Company vs State Of Karnataka Rep By Its Secretary on 24 April, 2009

Bench: V.G.Sabhahit

 

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24"' DAY OF APRIL, 2009

PRESENT

THE I-i0N'BLE MR. P.D. DINAKARAN, CHIEF Jt:s.frtes'__'  " 

AND

THE I-ION'BLE MRJUSTICE ViéiVSABIL&_HITiiV:_" 

Writ Petition No.4o72 of 2oo§~11<m_§MM4s.}._t - . «. " 

Between:

M / s Lakshrninarayana Mining:--Compar'1y -  
Registered Partnership Firm V  5  . V" 2. n "
Represented by its Partner _  ; ;

Sri G. Prashanth Narayan   V

S/o D.N Gopa1Krishna.: '  1' "  _   
Aged about 37 years     " _  
No.100, SannidhiRoad__  " .j '1   .

Basavanagudi
Bangalore "
.. Petitioner

(By Sri D.L.N.Rao,i«--$ienior Adx:o'c:-ire
for Smt An1_11'ad_ha, Advocate )'

Andi  -

1 .  of V j.

 *  Rep. by' --i.ts'--Secrefary",[::
 "'E)"epartme~nt of Forezst, Ecology and
7_Env~ironmeiit, M S' Building
" ~ Arnbedkaf Road,
. .Banfga;orc..550"oo:

 i ' V  The" Forester
'VN;--E.B Division,

  ' at . _ Sanéiur' Range, Bellary

 



3. The Range Forest Officer
Sandur Range, Sandur,
Bellary district

4. The Deputy Conservator of Forests
Bellary Division, Bellary

5. The Director of Mines 85 Geology
Department of Mines 85 Geology

Khanija Bhavan, V Floor,  _

Race Course Road, Bangalore 560 00 

6. The Deputy Director of Mines and Gcologys
Department of Mines and Geology  _ A   pp 

Hospet "  up 
" V  _  ..Respondents

(Sri Udaya Holla, Advoc'ate'--Gen_era1 i it along with Sri B.Veerappa}_.Qovtu. '>dvocat{e ) Writ petitior1'~.ai'ilei:_iy,yV 226 85 22'? of the Constitution of Indiapiprayiifig to~.quash_the FIR dated 4.2.2009 ﬁled by Respondent No.2 ion--~5v.i2i.2'009»...in-- the Court of JMFC, Sandur;

and etc., 0' . . ..

This writ petition corniisg for preliminary hearing this day, the Court delivered the.fo1lowing:~ ﬁvbemsnr _ :i'~v.,_;(}'.ieliyered by P.D.I)inakaran, C.J.) p_iiiiiWhetherA.ai:the report of the Lokgayukta could be the regisitering the First Information Report dated 4.2.2009 'i._a'gain_istipthevpetitioner and to pass an order dated 5.2.2009 seizing f7W 2é_' I' E the iron ore alleged to have illegally mined in the forest area as well as the tools, vehicies and machinery used for such illegal raining; and whether such FIR and the order of seizure can be H exercising the power of judicial review under Articlei.__i22.6ﬁ.:oif Constitution of India, are the questions >"'that"' arise"

consideration in the present writ petition. 2} The petitioner was originall}i_g1'anted 'a. rniriingilease on 21.5. 1963 bearing M.L.No.123;::fOr ore period of twenty years over an extent of Range, Sandur taluk, Bellary'i;';3;istrict._, v;gl1ich"=w:as_i"suhsequently renewed further for a period é9,4~.2005 with effect from 21.5.2003; atiuthe the area granted for mining purpose was reduced and 70.41 hectares was surrendered' tog which was handed over to the on 15; iéfévooo.

J.

13.! factual matrix of the case are that the VViygirnpugned'"i-ron__' ore 'inining is located within the forest area and the governed by the provisions of the Forest (Conservation) short 'the FC Act') requiring the prior approval of the iiCe:ntr.ai..i(}overnment under Section 2 of the FC Act for diversion of _,,..»..a the forest land for r1on--forest activity, viz. mining purpose, which had also been granted by the Central Government; that pursuant to prior approval of the Karnataka Forest Departm_ertt;'ltl'the K Petitioner has entered into an agreement respor1dent--Deputy Conservator of Forestsjiithat the a subsisting lease as on date; that the viola«tioi*1_ of the _cor;ditio1is* the lease agreement were complainetﬁagainst Vtheljand the same was recorded in thepgrepo«rit""ofi_:the'-»Lokayilkta.-Wand that based on such allegation, the' registered First Information Report dated offences.

petitioner g (1) bothurthe litnp'ti,gneti.:proceedings «FIR dated the seizure order dated 5.2.2009 V. to belllanashed, as the same are only the report of the Lokayukta which A is yet be accepted by the Government;

ii i T{ii.} the Lokayukta report cannot be put against the petitioner, as the petitioner was not given any opportunity of being heard before the Lokayukta;

(iii) assuming the respondents propose to__=t.a3§e' 5' action based on the Lokayuktagpreportglthe:2¥'dV ' respondent ought to have given arnopporttinityi to the petitioner to explain.__ its case' against ]the_ ﬁndings in the Lokayukta {iv} assuming the respondents;h.ai}'ejfgotpofwer to initiate action aga'i'11s.tf t1*ie_'*, under section4..€i2Aiofitliei' Act, 1963 (for"sh'ort', thiemsame ought not to have been ieie'i<erc"is_e.Ei--._aI?bitrari1y, illegally and unreasonablyiagainstithe petitioner.

5.1),E':er contra," Mr' Udaya Holla, learned Advocate General, subrnits that Lolqayukta report being a report submitted by a the basis for ﬁling an FIR and the same Vﬁgcannot bei"'disregarded. The learned Advocate General brought to notice that before preparing the Satellite imagery, the survey sketch of the boundaries and along with other documents and other necessary input have been given to the Karnataka State Remote Sensing Organisation for preparing Satellite imagery..g'7'rIg'he learned Advocate General, based on the instruction$....fr'oi1i:1*rlithe'3 Principal Chief Conservator of Forests, submits imagery and the sketch prepared thereonfionitheﬂ basis is one of the technical tools for identiﬁcation*~_of encr.:xachrnenit'*avt". macro level. However, the actual bountlaries of the --leaseidvoiu't area would be determined at the micro level"'byi_the"ground'survey. 5.2) It is further contended fact that the petitioner was not he.ard the cannot be a ground to contend that {no 1egalVactioin~can_:.be_ initiated by ﬁling a FIR against the persons illegality. The Lokayukta report need not itself be" Conclusive evidence for initiating action by way against the persons who had committed illegality, but sti'1l_co__u.ld"'b:e for setting the law in motion by ﬁling FIR Vf.:agai_nst illegal in the forest area and to seize the illegally S iron orcand tools, rnachineries and vehicles used for such S'-»._i"il1egal Filing an FIR is only an initiation of action against itheV.pe_t_iitioner and the respondent is yet to investigate into the <'""".?»"=2t 5 ' '\.

matter and therefore the petitioner is not entitled to seek quashing of the FIR on an imaginary ground that the respondent do not propose to investigate the matter or that the respondents'-.ha,ve already investigated, but have not found any evidence_;_againfst: _ petitioner. Therefore, the prayer to quash the FIR is 5.3) The learned Advocate General furtheriiicointegnds neither the ﬁling an application for of Iforevst-.Tra.nsit Pass "

('FTP', for short) nor issuance__of no'r._issuance,ofithe Way Permits under Rules 146 and" Forest Rules by itself would not be agigrouqd report. The alleged inﬁrmity and the Satellite report also cannot.ihe'ia.ground~to'reject the Lokayukta report or to quash the dated the seizure order dated 5.2.2009, as"t}:le iresipondenvauthority is still continuing . ......

Advocate General, however, submits that 1"eSp0I"i<d€I'1Vl:S' areready to give notice to the petitioner before iﬁeld survey and inspection in the presence of the petitioner and ii3'o,ntro_ll«er of Mines, Indian Bureau of Mines, Bangalore, along with the nominee, not below the rank of the Deputy Director, by the Director General, Survey of India. The learned Advocate General also fairly submits that there cannot be any permit the petitioner to continue the mining operati.on:.i_i.in' the undisputed area and to return the seized ma'chi'nerie--s__Vforgsuch purpose, but without prejudice, to th'e.'ri.ght 1"o-,re"stb*.. authorities taking action to seize and 'conﬁscate'* the'itoo1s",.:vehicles and machineries, subject to thefindings itlriuegioint ins'pe'ction and further investigation into the matter madefini the presence of the petitioner, Controller. of, Bureau of Mines, Bangalore, along " thefDi.rector General, Survey of India, a Deputy Director, after giving notice to the S.5)1earnéd,Advoc§ite General further submits that the seizcedvii be returned to the petitioner provided the petitioner-"give's.'an undertaking to handmover the possession of the inipugned"'«too1,s','vehicles and machinery as and when required by '-._"oo'u:t' for ..the trial as weil as for "'th'e"~..re'spondent"for further investigation or by the jurisdictional seizure and conﬁscation 57 proceedings that might be initiated by the authorities concerned under the provisions of the Forest Act, if necessary, in future'

6) in View of the above rival contentions, the "fo}§'owi1ig:_i"t_ questions, which are similar to those raised i:i''''Wﬂ1fit,'iPetition' '* No.3812 of 2009 disposed of on consideration in this petition:

{I} Whether the report of ieanivifbe the basis for dated 4.2.2009 and the...:.ord.§v.t-A' dated [II] this Court to exercise the power under Article 226 to-f theu" of India to quash the " first inrgrmdtidn Report dated 4.2.2009?

the second respondent is errigoivtered to seize the machinery, V " r 4_ eqtiipment, iron ore and vehicles belonging to it "the petitioner, by an order dated 5.2.2009, (IV) 7.1.

7.2) out-1't'thee.$}ery"é:;;tm§'qttestt.§'t1;"'ih an identical facts and circumstancesxof the ease;.iVthi.si'i'{io3.;rt, by order dated 13.4.2009 10 for having committed illegal mining operation in the forest area?

Whether the authorities of the Department are empowered to take against violations of the eotidi'tio:ts .efiiV:thc_"~7 lease agreenient?

Issue No.1:

Whether the repor:t"a_f the. can vheithe basis for the impugned dated» and the order of'seizure"datsti 5.2:;ef?,009'?[ it passed in Writ Petition 2009 held as hereunder:

' "6, 1)"1ssi;£e No.~I__ 'thereport of the Lokayukta can be '"'--._the* for the impugned FIR dated 3.2.200-9'iand the order of seizure dated 3.2.2o:}9.:> .6.2) Of "course, if is seriously contended by Mr Vzjayashankar, learned senior counset appearing for the

-- petitioner that it would be very unsafe for the respondents ..orfor the jurisdictional Magistrate much less to this Court to r""""-\ . /'\ "»._ I} act upon and/ or to initiate, to investigate, to prosecute or to pass any orders based upon the Lokayukta Report which is 7 yet to be accepted by the Government; or based upon th'e"* Satellite maps enclosed along with the Lokayukta ;eg5e'n~ V' ' and relied upon by the respondents herein identiﬁ,_gingiV.the_i."~ in impugned areas as encroached areas byth-e. pet-itionergas V such report or the maps cannot be a conclusive 'evidence'' against the petitioner as they were not parties yt'c'_;_:the° Lokayukta proceedings nor they given a_ny_noticer_or"

opportunity to ﬁle their objections to report or the ops sketches, while regtsteringblthe impugned FIR elated 3.2.2009 and passing the order' of seizuvre 3.2.2009. 6.3) We are, but, --ulna_ble appjieciatéi'thatV' the Vlokayukta report cannot aigbasis. forizinitiatingg lanywlawﬁtl action against those' are' unlawﬁxl acts in an illegal m.anr'ze.r.:Cinelgshould.not forgetrthlvat the oﬂice of the Lokayultta is held'-bye._aforrnelr"Judge of the Apex Court. It is difficult toassume that the said high authority would give' _Vlreport=_ any material whatsoever. ThereJ{'ore,e..we areunable to digest the contention that the Lokayuktyav. report cannot' be a basis for even to initiate an action ag,ainst=,an illegal act. However, on the ground that didrnot have an opportunity of being heard before the.l,oRayukta nor before initiating an action by the f second respondent herein based on the Lokayukta report or u vyhltheylsketches enclosed thereto, we do not intend to take any 'against the petitioner in this regard as it would be ' otherunse opposed to the principles of natural justice. 6.4} Of course, it is a settled law that exercise of administrative powers will stand vitiated if there is a manifest error of record or exercise of power is arbitrary or such power had been exercised on non-consideration or, nonwapplication of mind to relevant factors or for compliance of the principles of natural justice. But theifactsil Va that the petitioner was not given an oppor'tun_it"y"before"'.. ' initiating an action based on the Lokayutka' 'rep'o_rt'1or the. sketches enclosed to the report by itself icaninot" be a'grour_id.. "

to quash the FIR dated 3.2.2009-and the seizui'e:l'ord8_rh dated 3.2.2009, as the report oftheizoikayuktais_p'rcs-unied to be made based on materials tolbe substantiated by the prosecution at appropr£ate'l__stage; "'herefQre, it may not be proper for this court to facie stage, no case was 'rnade cut. it "

6. 5} Similarly.sglQiiiiis ll-Eu)' that"tth-elelectronic evidence is admissible -inlgeiiidence. also be not proper for this court to jump'--into' :conclzts'ion:~"that the respondents are not entitled ltoplace lrelianceitpon the satellite imagery, as the electronic evidence is "admissible in evidence; but the 'vsarrie. ihas=.to"--b.e substantiated by the respondents in the trial" before'~the_ lcotnpetent court and the petitioner is also bentitledx t0:l'rebut.:'tl'ie same so that the rule of law would prevail. to contend that it would not be safe for j the respondents to initiate lawful action based on the Vllokayuktai report or the satellite sketches enclosed V"-titereulgith against the unlawful acts alleged to have been * committed by the petitioner by illegal mining operation * ~»encroaching into the forest area in violation of the 13 conditions of the lease agreement entered by the petitioner with the respondentsforest authorities, lacks legal sanctity; because this is not a case where the responden.ts"r .. '' propose to shut down an activity which is carried on by'"the.i -. 'T ' petitioners lawfully, but unfortunately, it is the casellofg theﬁ. in ii respondents, of course based on the ._repo:{'t the Lokayukta, that the petitioner has all'egedlyiAgj,=iolatedl the maintenance of ecology and environment; and wher_e_»upon'~ the observance of the laws 'enacted to protect environment and ecology is sought to'be'ensured;- ,_ T '

6. 6) When the Lokay-ulfta ﬁnd_s.ifau'lt.tlagainst the executives for their failure to to protect the environment ecology, theglpetitionerpprojects the grievance against edcecutives dcii1'ig upon the Lokayukta report!",such_--circurnstances, in our considercd"opinion, =execu'tives should have a free hand to proceed with ﬁi_rther into the matter to do their duty conferred by people, particularly when faced with._ m,.o'nejj~power and manpower. Otherwise,' the respect for law and people would be lost. i 6.?) According to the respondents, the petitioner has s-encroachedgintoforest area which is outside the leased out area. Advocate General invited our attention thatilhuiheni theflleased out area has been superimposed on _V*the satevllite map, the encroachment of the forest area clearly established; and that the satellite imagery obtained from the Karnataka State Remote Sensing Application Centre, which is a nodal agency for the entire 14 State with regard to GPS and remote sensing, would prima facie show that the petitioner had encroached upon the forest area, outside the leased out area which is an offence by itself and the authorities are dutyebound to prevent such iilegal encroachment and mining operations apar't_-frorii seizing the machineries and to conﬁscate the , appropriate proceedings.

6.8) Once there is prima evidence show that 'the? petitioner had encroached upon_""the forest land operating its activity outside the of theieased our area, learned Advocate ._C.}eneral' that" the respondents have no optionrotcept. tofinitia'te"cﬁrninal action against the petitioner by iminerals mined outside leased out_::;ar~ea,*~.i'azhichit'is a forest produce, together4w5ith_--_'_the jto_ol~:s_,. machineriesiiand vehicles used in the"eo,mVrnission=of'the--offenceand also to conﬁscate the same in _appropriate proceedings.

6. 9} On "then other Vijayashankar, learned senior cougnselijor, the petitioner strongly contends that there " '~ is 'apparent variaticniietween the ﬁeld sketch enclosed with _the Agreements dated 7.8.1997 and 24.11.2008 e-entered .betiueeri.Vthe petitioner and the forest department and the imagery relied upon in the Lokayukta report, which the basis for the impugned FL'? and the '"a__V"seizure.. order dated 3.2.2009 and both do not tally with _ each" other even to the naked eye and therefore, there is no _ encroachment at all.

.. i f if};

15 6.10) It is for that reason, the learned Advocate General, placing reliance on the averments made in the statement of objections, submits that the appropriate authority wouldV"=""

conduct a ﬁuther investigation in the matter and procee7dNin--«i _, " ' accordance with law. The learned Advocate General in agrees that while deciding the extent of encrvachr.-fient,' 'Gaffer giving notice to the petitioner, an in'spec_tion3 conducted in presence of the Petitioner, Gontraller of bilbjfinégl :

Indian Bureau of Mines, Bangaloreiiand the ,nornine_e below the rank of the Deputy Directoigby the. ibirectogr General, Survey of India. submission, the contention of the learned for the petitioner that the proceedings .i;itiatesﬁ)r hon§c'ei,npliance of Rule 62--A and §52~'~BL_'r3f the as the respondents are yet cornplete the 'investigation. 6.11) holdthat the Lokayukta report and the Asafiellite.sketch.._relied on in the Lokayukta report can be the the impugned FIR and passing theuiordergof dated 3.2.2009. "

the"'se.id.«vrati0, Issue N03 is answered in the positjvetii "

8):. am 'ﬁoifli Whether it is proper for this Court to exercise ii * it-'the power of judicial review under Article 226 of .»~""""w?, <:' gt 16 the Constitution of India to quash the First Information Report dated 4.2.2009?

8.2. With regard to the very same question, order dated 13.4.2009 passed in Writ Petition hto.":>;s1:':;yof":2,Qo9;,_ "' held thus:

"7. 1. Issue No.11:

Whether it is propet_..JIVi"i(:5r'i__tFzis Courtto exercise the powergunderi of the V Constitution of Ind'id.c_'Ato'ii'~--ti;e lfirst Infonnation Report ddted.3;A2.V2QD9? " V " be 7.2) The remeu» under Article 226 of the Constitutibkn f:'iIitdia',tVS- akinto the inherent power conferred under fiectiongg of the Code of Criminat Procedurei' a It is that even though such inherent poufers conferred on...tihe High Court are very wide, V the pienitudnethe power requires great caution in its . exercise dud the Courtsmrnust be very careful to see that its decision" of such inherent power is based on held by the Apex Court in the case of INDER Mo.t:iA¢1?at'iGosWA1uI AND ANOTHER v. STATE or _ '.V_UTrAxA}¢cHAL AND omens reported in (2oo7)12 scc because the inherent powers conferred on this Court has tovbye sparingly exercised (i) to give effect to an order under ' the Code; (ii) to prevent abuse of process of Court; and (iii) V' 'toiotherwise secure the ends of justice, but in any event not 17 to encourage violations of the provisions of any statutes in force much any conditions of agreement thereunder which empowers the competent authority to take appropriate' "

action against the law breakers and those who violatejthe' '"~ conditions of agreement.

7.3) In any event, such poufers not.::b'e, it exercised to stifle a legitimate prosecutionanasli therefore 'the, Courts should refrain from giving a:prima--fac.ieV'decisiion case where the entire facts are incomplete anti ~haI'zy,5 more so, when the evidence has not bee,n"collecte'cl_ and prociuceol before the Court.

7.4) In thee'-instartt" Advocate General comes to 5'-ubstantiate,:Vtlie"complaint made against the tenths. mining operation carried on__outsic?eV"th;e_;ileased Therefore, when the evidenceis yet coillecteti produced before the Court and the respondents a,re.pirepttrexcl_. to substantiate the illegal mining operation petitioner, it may not be proper for this Court to power to stifle the legitimate I " v. nor to x"gitxe., Ha primafacie decision hastily. Harm, we varegiconvinced that it may not be proper for this cm to R. at this stage."

-V 8.3.x" Foiviiowiltzg the said ratio, Issue No.H is answered in the 4, positive'; : 4_ or any portion thereof may be used for any non forest purpose; (iii) that any forest land may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organizatio.§tMno't..V_' ' owned, managed or controlled by State Govemment,__an.d (i-Q_]"~ I that any forest land may be cleared cf"t'rees ufhichlllhizvel' grown naturally.

8.3) After the FC Act cam'e--,_into jbrce,Vno'V:mif1ing lease/ licence can be granted in theVl'jTore.st area~.wi'th~o:ut prior approval of the Central Croverrtment, which-A isvija condition precedent, because:'Sect--ion%[_2v FC Act starts with nomobstante clause vt'2,f._,V_ "iNotiviVt?}tstanding_'anything contained in any-.oth_er in force in a State... "_ Tlierefore; no1no'n~_fore_st be carried on in the forest the approval of the Central 'Got-e_rnjmen't§f:.3 =.w'hich.' means}; even the State Govemrnent__ carry onony sitch non--forest activity in the forest>ar'ea approval of the Central Government:*--Tljhev._fact_ that mining activity amounts to nonfojreste. purpose. is 'beyond doubt.

A _ 8.etj~A.. The--~.renewal of a lease is really the grant of a

-fresh " ee.VV_ieezd by the Apex Court in DELHI bevsiopmemf' AUTHORITY Vs. ounce crmnv Kavsrsrt 1973 sc 2609] and therefore such prior VV"»approval.g:f the Central Government in terms of Section 2 of fpthel l"C Act would be required when mining lease granted _ beforejthe commencement of the said Act is renewed after its it so Hvccming into force. '2 20 8.5) As the impugned quarry is located in the forest area and the mining lease was granted only subject to the-'*.. approval of the Central Government and agreement entered with the State Government, the respondents--_fo'rvest'. . it authorities have every right to initiate action against the':

persons who violate the terms of the leaseand condit'i'ori_s. the lease agreement and the KF Act:alsoulempowers'-thee'gtit respondents authorities to seize, conﬁsAloa_te*-and forfeit" the it forest produce, tools, vehicles anailniachineriesl that for illegal removal of the forest proclueet" Such an ebtereisesof power, in our considered' .opiniort,"" __be terr'ned~'as arbitrary or unreasonable. ""n _ 7

9.3) Applying the'aboveAfeitielllsstle._Nol'§II...AisensWered in the afﬁrmative.

10.1. Issue. No; ..

Wheth'_eIt' V t1't¢""st'attt't;.otities of the Forest ; Departn1e.nt 'ere V' empowered to take action __lCagAains.tA violettionsvof the Conditions of the Eease V' 'V , agreentent?

t0.2';"'*rhts eistttt in Writ Petition No.60023 of 2009 disposed 'on 15* April,'«:_2009 had occasion to consider similar question, fwhether respondents are empowered to suspend the mining V' 'Vi-iscence for violation of the conditions of the agreement entered into 2} between the petitioner and forest department. in the said decision it is held thus:

"7.5. Issue No. II. & Whether the fourth respondent is empowered to suspend the mihning licence' " * invoking condition No.23 of the agree_rnert.tfor': V V the alleged violation of the condition lVos.8, * 13 and 18 of the agreementlldated 1§.-4.éo07:»f" A ' Parliament enacted the Forest" " (Conservat'ion)_ 1980 in order to prevent'..,(i6ﬁtrestaVticn'ivhich causes ecological imbalance and to.l:il'-eilvironmental deterioration. The" V_defores'tation. " clauses .,..y'u}t'despread concern. .S'ection{_"2 the ftpresltvll(Consernatiovn) Act, 1980 imposes the restr:"ctio'n'o__nt derevsérvation of forest or use of forest land pviposes. per Section 2 of the Forest (C}o_nse4rvationl:'Act, Government or authority shall make;exceptlévithlihelprior approval of the Central Government, ;in;_;_:lor;1ér directing (i) that the reserved forest shatliae ceased to 'be...res.erved,' (ii) that any forest land or thereof may be used for any non forest that forest land may be assigned by way of .lease vor--.V-othe-rnzise to any private person or to any authority,__'.corp'oration, agency or any other organization not _Wowned," rnanaged or controlled by State Government, and {iv} 'ltha&t any forest land may be cleared of trees which have gro:wn"naturally.

22 7.6} After the Forest (Conservation) Act, 1980 came into force, no mining lease/ licence can be granted in the forest area without the prior approval of the Central . Government, which is a condition precedent, becajuse--« Section 2 of the Forest (Conservation) Act starts with"-nor:-if». obstante clause viz., "Notwith.standing it contained in any other law for the ,bei.rigiin1foi~ce'~V in a State.." Therefore, no non--forest7._activity canf'be' carried on in the forest area, except, ioith the"prior_appro'i._2ai of the Central Government, which m'e.ans_,V everL'*.}ﬁ1e"iS'tate Government cannot carry onany 5-'uch'no'n--forest activitylin the forest area without the 'the Central Government. The fact thatthe_mining:.,activitiy":.ambunts to non--forest purposeiisbeyond dgoulﬁt. V,

7. 7} 'really the grant of a fresh lease by': the if Apex Court in DELHI DE VELCEPMENT }iE:.TTi--'I:llC)RI7'}<fl_ DURGA CI-{AND KAUS'ISH-- AIR 1 973 'SC 2509, therefore~--such prior approval of the Central C;'OlV}'6'?f?:L'lTL8?'l1i' of Section 2 of the Forest (Conservation) A'c.t,_l9E?0 would be required when mining V. -lease. granted-- before the commencement of the said Act is 'V , 'renezved, ,after its coming into force. '.:Tiie,.,1'impugned quarry is admittedly located in the forestllarea. Therefore, the mining lease granted to the "»petitionerV__in such forest area is subject to the conditions "imposed by the Central Government and State Government T i;uhite"exercising the power conferred under Section 2 of the wFc:irest (Conservation) Act, 1980. While thus exercising the .w""':7<§\\ 23 power conferred under Section 2 of the Forest {Conservation} Act, an agreement was entered into between the petitioner and the 41*: respondent on 19.4.2007 wherein » i"

the petitioner--company have specifically agreed to co_rriply--« " V with the conditions incorporated in the said agreeimentiiﬂ in Had the agreement not been executed,.:rnining lease', V' would not have been granted to theV=.,petitio;.,}2r.i1,. Condition No.23 of the said agreement, th.e'p_etitioner' has ' also agreed that the fourth respondent has the power.__:to'"

suspend the mining licence, if the conditions agreed to the petitioner while eX€CL€fi?'.ug" ._are violated. Therefore, as rightly pointeiaoutt by Advocate General, the fourth,._respondent_ empou'iered"'--.to- 'suspend the licence, If coznditions 'tt.tig'teett_'___:,fto by the petitioner/less-ee"' ..:Jiolat.ed,_ ibdepends upon the facts and circurristances the enforcing " V'

7. vlt'-is notin' Adisputei"t=hat the very area leased out to the petitioner is in .tztspt;te_".;:ntt there are civil litigations in this'r.egard between the petitioner and the i"--neighbou.ﬁng"l-mining'operators, of which, one of them is seized by 'thet.Hon_'ble Supreme Court, where the issue to 't-:t_u~;;¢_,,, respective leased out area is under consideravtion; 'As a result, the leased out area of the petitioner' itself is yet to be identiﬁed and demarcated. In _it.'2.at,_ view of the matter, the enforceability of condition 9, 13 and 18 referred to in observations 2 and 3 has ' become difficult, according to the petitioner. On the other if " -hand, the learned Advocate General comes forward to r"':'°x 2 /2 '=2 24 _ substantiate the complaint by giving an opportunity to the petitioner in the presence of the Controller of Mines, Indian Bureau of Mines, Bangalore, who by proceedings dated 30*"

April, 2007, fixed an extent of 40.15 hectares in which the overburden waste could be dumped during the lease period. It is under such circumstances, we are of the considered opinion that it would not be proper to suspend .' the mining operation without ample material to substantia'te--«i " V the violation ofcondition Nos. 8, 9, 13 and 13. OtheniJ£s_e, will amount to an arbitrary and unreasonable power conferred in condition of 23 of the agree}nent1dated'~» 192;: April, 2007 and will also amount to. iéiolationgthei' principles of natural justice, attracting Article Constitution of India. it i i' ' 'i V' Issue No.11 is answered a.ccordingly:"" . it 10.3) Following Issue No.IV is answered accordingly.

1} isgaiso not'Vi1i--------dispute that the decisions rendered in wriiseoviionlg1xio;5oo§'a.ot 2009 disposed of on 1.4.2009 and Writ disposed of on 13.4.2009 squarely apply _'"t.o_ éthehfactsof the present case.

12) Following the decisions dated 13.4.2009 in Writ Petition No.38l2 of 2009 and 1.4.2009 passed in 60023 of 2009, we-'pass the following:

0 R D E R

(i) Lokayukta report and the s_ket»ches'«"attae_i:ed'e thereto can be the basis for the téiif-,,,..

prosecute the FIR dated 4'.i2;«2009iianid theteseizurcm :3 order dated 5.2.2009;

(ii) the prayer to quash iithe'F"irsit ilnforimation Report dated 4.2.2009. is :;ejeetie}ci,.iggi$j:s.tj.gFlieetty to the respondents to ':f:,;p'roceed in iiiaecordance with law, subject.' to the iorfders. .he.ijetinder;

(iii) Deputy Ciloiatsﬁzrvatoih ii Forests, Bellary Division, AV "ée.1la"r3r--fonrthiiiiléespondent, shall inspegt and "thVe:vi_j.mpugned area leased out to the the presence of the petitioner, the Cofttroller of Mines, Indian Bureau of Mines, V. :»:Bhia«.ngalore, along with the nominee not below the rank of the Deputy Director by Q/tfq Director gffw I I 26 General, Survey of India, and take appropriate decision as to the alleged encroachment by thefj"

petitioner with reference to the survey records~«and..'__' " '' other relevant material available and doculmentS'~ produced in this regard. If any; encroachment forest land is found, the respondentsare ativ.iibe'1'tj{ to assess the damages Causedion account si:.chW illegal mining outsiclcdthe ;ieased' oi"u-t_ mining area and recover the same from ti1ei'petitione.ri; The .respon'de'n.ts' are directed the tools, vehicles' and petitioner on the condition shall be produced before the respondents/".j'uris--diictional Magistrate as and w;he11r_requiredlbiy law, subject to the ﬁnding in the to be conducted by the fourth the presence of the petitioner and C_ont_ro11er' of Mines, Indian Bureau of Mines, AA gBang_a:1ore, along with the nominee not below the * ..ra.nk of a Deputy Director by the Director General, Survey of India, referred to above;

28 leased out area which is not disputed by the forest authorities;

13. Writ petition is accordingly disposed of. N0 '. 'V'.

Index-£135 /    'V 1 In _
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