Karnataka High Court
The State Of Karnataka vs M/S Mspl Limited on 6 March, 2013
Bench: K.L.Manjunath, Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 6TH DAY OF MARCH 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT APPEAL NO.1359 OF 2012 (GM-FOR)
AND
WRIT APPEAL NO.2907 OF 2012
BETWEEN:
1. The State of Karnataka
Represented by the Secretary
To Government,
Department of Forest,
M.S.Building,
Dr.Ambedkar Veedhi,
Bangalore - 560 001.
2. The Principal Chief Conservator
Of Forests
Government of Karnataka
II Floor, Aranya Bhavan,
18th Cross, Malleshwaram,
Bangalore - 560 003.
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3. The Deputy Conservator of Forests
Chitradurga Forest Area,
Chitradurga District,
Chitradurga.
4. The Assistant Conservator of Forests
Chitradurga Forest Area,
Chitradurga District,
Chitradurga.
5. The Range Forest Officer
Regional Range,
Chitradurga.
6. State of Karnataka
Represented by Secretary to Government
Department of Revenue,
Multistoried Building,
Dr.Ambedkar Veedhi,
Bangalore - 560 001.
7. The Deputy Commissioner
Chitradurga District,
Chitradurga.
8. The Assistant Commissioner
Revenue Sub Division,
Chitradurga District,
Chitradurga. ... APPELLANTS
(By Sri A.Keshava Reddy, AGA)
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AND:
1. M/s.MSPL Limited
A Company incorporated under the
Companies Act, 1956,
Having its Corporate Office at
Baladota Enclave,
Abheraj Baladota Road,
Hospet, Bellary District,
Represented by its Executive Director
Sri Meda Venkataiah.
2. M/s.Ramgad Minerals and Mining Limited
A Company incorporated under the
Companies Act, 1956,
Having its Registered Office at
"Baldota Bhavan",
No.117, Maharshi Karve Road,
Mumbai - 400 020.
And having its
Corporate Office at:
Baldota Enclave,
Abheraj Baldota Road,
Near Sri Sai Baba Temple,
Hospet - 583 201
Karnataka,
Represented by its Executive Director
Sri Meda Venkataiah.
3. M/s.Karnataka Renewable Energy
Development Limited,
No.39, "Shanthigruha",
Bharath Scouts & Guides Building,
Palace Road, Bangalore - 560 001
Represented by its Director.
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4. M/s.Vestas Wind Technology
India Private Limited,
Formerly known as and called as
M/s.Neg Micon (India) Private Limited,
A company incorporated under
The provisions of the Companies Act, 1956,
Having its Office at No.298,
Old Mahabalipuram Road,
Sholinganallu, Chennai,
Represented by its Director. ...RESPONDENTS
(By Sri S.Srinivas Murthy, Advocate for R1 & R2
Sri G.S.Kannur, Advocate for R3
R4-Notice to dispensed with)
*****
These Writ Appeals are filed under Section 4 of the
Karnataka High Court Act praying to set aside the order
passed in the Writ petition No.46599-600/11 dated
23.12.2011.
These Writ Appeals coming on for orders this day,
K.L.Manjunath J., delivered the following:-
JUDGMENT
Though the matter is listed for orders by consent the appeals are taken up for final hearing.
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2. Notice to respondent No.4 is dispensed with because respondent No.4 was respondent No.10 before the learned Single Judge. Respondent No.10 had not represented before the learned Single Judge. The writ petitioners who were respondents 1 & 2 herein are not seeking any relief against the respondent and on the contrary the writ petition is filed for the benefit of respondent No.3 also.
3. The appellants are challenging the legality and the correctness of the order passed by the learned Single Judge in writ petitions Nos.46599- 46600/2011 dated 23rd December, 2011. The aforesaid writ petitions were filed by the writ petitioners for the following reliefs:-
" (i) Quash the proceedings initiated by the Respondent Nos.4 and 5, pending on the file of the Principal Civil Judge and JMFC in Chditradurga in FOC No.9/2010 now numbered as CC NO.989/2011 vide Annexure-R. 6
(ii) Direct the Respondents 3 to 5 to allow the Respondent No.10 and Petitioners to run and operate the 15 wind mills situated in the schedule property in terms of the permission granted by the State & Revenue Department;
(iii) Direct the Respondent No.1 & 2 to drop the proceedings in terms of the reply dated 31.08.2011 vide Annexure U1 & U2."
It is the case of the writ petitioners that the petitioners have established 12 wind mills in Sy.No.97 measuring 11 acres 25 guntas, 12 acres 33 guntas in Sy.No.98 in all 24 acres 18 guntas situated Guddaragwannahalli in Chitradurga Taluk and District which are leased by the Government under lease deed dated 7-5-2007 and also in an area measuring 23 acres 15 guntas in Sy.No.110 of the same village where three wind mills have been established.
4. According to the writ petitioners they have erected and established the wind mills in the area leased 7 to them and the land leased to them were not declared as reserve forest at any point of time and it is a revenue land. Based on the complaint lodged by the Range Forest Officer before the Principal Civil Judge & JMFC, Chitradurga, in CC 989/2011 some of the employees of respondent No.10 are being prosecuted. In addition to that, various departments have issued a notice's to the petitioners as per Annexure-U to the writ petition calling upon the petitioners to show cause as to why an action shall not be initiated against them on the ground that the wind mills established by the petitioners are situated in the reserve forest.
5. The writ petitioners have sent a detailed reply as per Annexures-U1 and U-2 contending that in view of the reply as per Annexure-U1 and U-2 the State of Karnataka, and the Principal Chief Conservator of Forests have to drop the proceedings and that the Assistant Conservator of Forests shall not interfere with the running of the wind mills by the writ petitioners and the 10th 8 respondent and to quash the proceedings initiated in C.C. 989/2001.
6. The matter was contested by the State of Karnataka on the ground that the wind mills established by the petitioners are situated in the reserve forest area and no such mills can be established or erected by the petitioners in the reserve forest area and requests the Court to dismiss the petition.
7. The learned Single Judge has disposed off the writ petition on the ground that the writ petitioners have made investment of Rs.55 Crores to establish the project with the permission of the State and if the petitioners are prevented from operating the wind turbines the electricity generated from the wind turbines would be deprived of to the State Government. Therefore it is for the State Government to negotiate with the petitioners and to take a final decision in the matter within a period of 30 days from 9 the date of the order. This order is called in question in these appeals. The learned Judge has also permitted to recommence the operation of the wind turbines by the petitioners through respondent No.10. This order is called in question.
8. According to the learned Government Advocate Mr.Keshava Reddy, is that the learned Single Judge without considering the contentions of the writ petitioners and the prayer made therein has passed the order which cannot be acted upon by the State Government. According to him, if the wind mills established by the petitioners are in the reserve forest area the State Government cannot permit the writ petitioners to run the wind mills in the reserve forest. In order to give an opportunity for the writ petitioners, show cause notice was issued and for which the reply has been sent by the writ petitioners vide Annexures-U1 and U-2 and what is challenged by the writ petitioners is to quash the show 10 cause notice. According to him a show cause notice cannot be quashed by any Court when the appellant is willing to hear the writ petitioners by providing a reasonable opportunity and to take action in accordance with law. He further submits that if a criminal case is initiated against the employees of the 10th respondent the same cannot be quashed by the petitioners as it is for the accused in the criminal case to challenge the same in the manner known to law. The petitioners could not have sought for such a prayer. In the circumstances he requests the court to set aside the order of the learned Single Judge by allowing the appeals.
9. Per contra, Sri Srinivasa Murthy, the learned counsel appearing for the respondents contends that the wind mills established by the writ petitioners does not fall within the reserve forest area and while granting the lease the opinion was also secured from Forest Department by the State. In view of the investment made by the 11 petitioners the petitioners cannot be prevented from running the wind mills and no action can be initiated by the forest Department. In the circumstances he requests the court to dismiss the appeal.
10. Having heard the learned counsel appearing for the parties what is to be considered in these appeals is whether any error is committed by the learned Single Judge in allowing the writ petitions?
11. The following facts are not in dispute in these appeals:-
That the writ petitioners are claiming the land based on the lease deeds executed by the State of Karnataka. It is also not in dispute that the lease was granted by the State to establish and run the wind mills and even if such a lease is granted the writ petitioners cannot be permitted to run the wind mills in a reserve 12 forest area. The petitioners are disputing the contentions of the Forest Department. If the Forest Department has issued a show cause notice to the writ petitioners calling upon them to show cause as to why action shall not be initiated on the ground that the wind mills established by the writ petitioners are situated in reserve forest area and when the reply has been given by the writ petitioners as per Annexure-U1 and U-2, when the forest Department is willing to give an opportunity of personal hearing the writ petitions filed by the petitioners are to be dismissed as premature and the learned Single Judge should not have entertained the same against the issuance of the show cause notice and similarly if a criminal case is registered against the employees of the 10th respondent and if initiation of the criminal case against them by the Forest Department is illegal it is for the accused in the criminal case to challenge the same in accordance with law. Without doing so the petitioners Company cannot request any court to quash the criminal proceedings which is not 13 filed against the petitioners. The learned Single Judge without considering these crucial points has erroneous allowed the writ petitions directing the Government to negotiate with the petitioners and take a final decision and such a finding has to be held as perverse and liable to be interfered with.
12. In the circumstances the writ appeals are allowed. The order of the learned Single Judge passed in the aforesaid two writ petitions on 23rd December,2011 is hereby quashed. The 2nd respondent - Principal Chief Conservator of Forests or anybody authorized by him under law shall hear the writ petitioners in detail and take action in accordance with law. Thereafter it is open for the petitioners to challenge the same in the manner known to law.
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13. The Government to take a decision within a period of 3 months from today till that time writ petitioners are permitted to run the wind mills.
Sd/-
JUDGE Sd/-
JUDGE Rsk/-