Karnataka High Court
M/S. Chowgle And Company vs State Of Karnataka on 24 April, 2009
Author: V.G.Sabhahit
Bench: V.G.Sabhahit
IN THE HIGH COURT or KARNATAKA AT BANGALORE
DATED Tl'-IIS THE 24TH DAY or APRIL, 2009
PRESENT
TI-IE I-ION'BLE MR. 9.1). JJINAKARAN, CHIEF JUSTICE': ~
AND i i i
TI-IE HON'BLE MR.JUs'r1c1: V.G. sA3HA_H1'1f_j V
wnrr plgrrrxon No.-4231 of mg -- *
Between: V4 1 it
M/s. Chowgie and Company
Marmugao Harbour
Goa f
By its GPA Holder Mr. Sanjeev Krgrfiar f
S /0 Sri Hiralal Bhagat ' w '
Aged about 36 years
Residing at Hospet
'V ...Petitioner
[By SI$2'D.L.N'..Ra=o, Sr, Advocate
'4 fol'?'_$mti_v:Annradha)v '
And:
1. State of Karnataka _ ' -
Rep by its Principal Secretary
Departmentsbof Forest and'"Ec'o1ogy and Environment
A ' M.S. 'Bufldinig, Dr." 'Ambedkar Veedi
Banga}o1"e_~" 560 _UOx1' = .
The Forester ' it
' " N.E.B. Divisior: A
Sandur Range '
~ 'Bellary
Forest Officer
'S'é1nd'.§1r, Beilary District
Sandur' Range
2
4. The Deputy Conservator of Forests
Bellary Division
Bellary
5. The Director of Mines and Geology
Department of Mines and Geology
"Khanija Bhavan", 5th Floor
Race Course Road
Bangalore -- 560 001 ..
6. The Deputy Director of Mines and Geology
Department of Mines Geology 3
Hospet V _:
V * Respondents
(by Sri Udaya Holla, Advocate. General ' along with ._Vee_'rappa',' GA) '~- _ This writ petition is filed under-'V'Aritic1es and 227 of the Constitution of India praying to .*qua.sh the "»firstiv_inforrr1ation report dt. 3.2.2009 bearing Foc_..Na,_1'31/2008439 filed lbyr the 2% respondent dt 3.2.2009 in the Court' Jl§~fi+'C, Sandur, vid.er.AnneX'ure~M; and etc. This writ petition" hearing this day, the Court de1iverecl"the' io1.1§wingi-§¢'* _ _ V lfflgigguenr lDe_livered__ hy:_VP;IS{'Dinakaran, C.J .)
1) lithe«_report of the Lokayukta could be the basis for'regi5.tering"'the First Information Report dated 3.2.2009 __against't.he--.rpetitio'aeir=.and to pass an order dated 3.2.2009 seizing i7;;'he iron ore alliegehcillto have illegally mined in the forest area as well 4: t'oo1.s, vehicles and machinery used for such illegal mining; such FIR and the order of seizure can be quashed by the power of judicial review under Article 226 of the Constitution of India, are the questions that arise for our consideration in the present writ petition.
2) The State Government initially granted mining...iease'over' an area of 459.63 hectares in favour of M/ s. if Mining Company in respect of iron ore on for.ia" of twenty years under the provisions Of"._'MiI}CS aud"~MineraIsl'~ (Development and Regulation) Act, Mineral; Clloinceslsion Rules, 1960. Vide notifivcation the State Government grated sanction forrlease in favour of the petitioner fI'0.I:I1~:iWE}"S. Company. Accordingly, M /53. mtlompany executed transfer deeld __ in' favour of the petitioner transferring the mining 'l._ea:se*.i :_l'l'hle"pletitioner applied for renewal of the mining please confining its request for renewal asper themadvise of the Forest Department. The State lla~ftie.1' consideration of the application of the 7 _ S"petitioner,_"granted 4:'.li;'}'A1K€ same. The mining lease was renewed for 3. periorjwd of twenty years on 19.4.2007 by the State ll'-ti}overnine_nt' bearing Ml... No.25-46 for 100 hectares. { E _i°tha_t:
4
3) The undisputed factual matrix of the case are that the impugned iron ore mining is located within the forest area anclthe same is governed by the provisions of the Forest Act, 1980 (for short 'the FC Act') requiring the prior. apiitvoya-iiiioi the "
Central Government under Section 2 of the A;cti'fori.dive'rs'ioAnof the forest land for non--forest activi1:y,.'_vi2:. nzining p1cp.1rpose,i. which had also been granted by the Centraliittovernme11ti:'th'at pursuant to prior approval of the l{:a1*natal{a:_liloresta.Departrnent, the petitioner has entered into the fourth respondent--I)eputy C:ons.eprvato__r the petitioner has a subsisting leaseias theiviolatioin of the conditions of the lease agreernientiivitveiefpcorrtplainediiiiagainst the petitioner and the same of the Lokayukta and that based on such all'egation;v._ the Second respondent registered First In.forr_natiorii'<Report dateti'3..i.2..2009 for alleged forest offences. it is contended on behalf of the petitioner 3(1) the impugned proceedings --FIR dated V. _ 93.2.2009 and the seizure. order dated 3.2.2009 are liable to be quashed, as the same are only (111) based upon the report of the Lokayukta which is yet to be accepted by the Government;
the Lokayukta report cannot be put againstithei' ff '7' petitioner, as the petitioner was not giVe'r1----iany"'V. ' opportunity of being heard :_:=before_1 Lokayukta;
assuming the re:_sponder1__ts:A'~:p1"Qp0sei action based on Lokaytiiktalpilprcpport, the second responderizt fgiiven an opporttirlzitygtto __th.e"pe1ti_tionerf.to' explain its case against. theilgoklayukta report;
» assuzning the "respondents have got power to ; initiate action against the petitioner under oiwthe Karnataka Forest Act, 1963 it l&{foi*:"ws.hoft-,_l'the KF Act'), the same ought not to have exercised arbitrarily, illegally and Linreasonably against the petitioner.
6 5.1) Per contra, Mr Udaya Holla, learned Advocate General, submits that the Lokayukta report being a report submitted by a Statutory Authority can be the basis for filing an FIR and theeisame cannot be disregarded. The learned Advocate General our notice that before preparing the Satellite....infraegery, _t}ie"
Lokayukta Team has conducted ground survey sketch of the boundaries and a1ong'----wiith other; d:o'cun1en"ts and other necessary input have beenigiven to the _Karr-1atiakaiiState Remote Sensing Organisation. Satellite irnagery. The learned Advocate General, based in from the Principal Chief Conservator of Fore.sts«,eiisujbniits' that the Satellite imagery and Ztheiiisketch fiigepgrea'-the£eo'n"'on the basis of the ops is one of the technical Stools 'ifo_ri'i'i-dentification of encroachment at macro level. }~Iowe\*.er',v the._ac~tual"boundaries of the leased out area vvould_be :djei3ter:r1ined atthe..micro level by the ground survey. contended that the mere fact that the iiV.__iij:5e'ti.tioner'--wasv_vnotiheard by the Lokayukta cannot be a ground to " thatznnoilegal action can be initiated by filing a FIR against who had committed illegality. The Lokayukta report noit by itself be conclusive evidence for initiating action by C way of filing FIR against the persons who had committed illegality, but still could be a basiszfor setting the law in motion by against illegal mining in the forest area and to seize _the"ill_e-gallyi _ mined iron ore and tools, machineries and vehicle's~iused, for such '' illegal mining. Filing an FIR is only an inzitiationfjvof-reaction"against j the petitioner and the respondent,is.'_yet to iilwestigatsiyintoliithe matter and therefore the petitioner is niotllentitled'to:"seekflt;;§uashing of the FER on an imaginary'groundlnthavtithliei'lfesponiderlt do not propose to investigate the .--'theA-i.:le_s.pondents have already investigated,;"biit.Vgliave=A__not iound:"a:nyV_.eyfidence against the petitioner. Therefore, t-he tlfle' FIR is premature. 5.3) 1earniei£--~.A"dvocats.___C}eneral further contends that neither the filingwan»appli_cation."fortissuance of Forest Transit Pass ('F'I'P', for short) nor is.st1ance' of the FTP nor issuance of the Way 146 siicl 149 of the Karnataka Forest Rules by itself fii.-ground to reject the Lokayukta report. The iV'rall'eged infi__rmi_ty hetiyeen the field map sketch and the Satellite '' cannot be a ground to reject the Lokayukta report or to FIR dated 3.2.2009 and the seizure order dated 3.2.2009, as the second respondent-authority is still continuing investigation.
5.4) The learned Advocate General, however, the respondents are ready to give notice to the petiti'o,ner_i'before such field survey and inspection in the presence of t;he,:pe_titioner"1 and Controller of Mines, Indian Bureau of Bangalore~, with the nominee, not below the the by the Director General, Survey ~._of India'! learned eefildvocate General also fairly submits thath objection to permit the petitioner.--toolperation in the undisputed area for such purpose, to the right of the forest authorities taking confiscate the tools, vehicles and machineries, to iindings of the joint inspection and further matter to be made in the presence of the petieticnler, :"--Con:troiler of Mines, Indian Bureau of Mines, n'BVan.galore',«__alo__s1g the nominee of the Director General, Survey ""o'fdIndia,pwhoyis not below the rank of a Deputy Director, after
--noti.ce to the petitioner.
V»/'"":
9
5.5) The learned Advocate General further submits that the seized articles wouid be returned to the petitioner providued_ith_e petitioner gives an undertaking to hand--over the posse_sj'sion.e'_c--f: M impugned tools, vehicles and machinery as and when. "
the respondent for further investigationihor jii.ri~sdic'tion.aplp Court for the trial _as well as for_ seizure" andcV»"iconfiscation proceedings that might be initiated concerned under the provisions of the Forest Act, in fiitiire.
6) In View oféthe a1:;oiié'» the following questions, which:__ in Writ Petition No.38}2 of J2'OQvv9'V"~ti:l'.5li?!Q$t%i.ii._:'iCli¥"O'1ii.:::,l.JfV;3:§4.V2009, arise for gm con siderationgin ' ' (I) W'hethuer'*vt}reVrepsort of the Lokayukta can be hasis the impugned FIR dated the order of seizure dated A 3.,3.*::.oTo§?
it V' ttéliiil Whether it is proper for this Court to exercise the power of judicial review under Article 226 10 of the Constitution of india to quash the First Information Report dated 3.2.2009?
(III) Whether the second respondent 'V' empowered to seize the ma'ehine2:y;» equipment, iron ore and vehicle,js A the petitioner, by an<o1*«der dated for having committeiiyii iilegel' lrininifiéag operation in the forest " ~._ _' » 0 " « _ _ (IV) Whether the au'thori.tVie3ag1 Forest Depart11i.e::r%f'da;i-e. "e:nsgpVowered' towtake action agai'nst.A:"z(ioféftions9 'th'eeee-eonditions of the geese " 0 7.1. "
_ Whether Vthereport of the Lokayukta can be the for the«impugr1ed FIR dated 3.2.2009 and A r , the o1'der. of seizure dated 3.2.2009? the same question, in identicai facts and _eircumstari'ces"'*V.of.the case, this Court, by order dated 13.4.2009
4. in Writv0013'etition No.3812 of 2009 held as hereunder: 11
"6. 1) Issue No.1 Whether the report of the Lokayulcta can be the basis for the impugned FIR dated 3.2.2009 and the order of seizure dated 3.2.2009? -- i 6.2) Of course, it is seriously contended" ' Vijayashankar, learned senior counsel appearing for petitioner that it would be very unsafe for the irespor1de~n_ts.. "
or for the jurisdictional Magistrate'inu..ch less to to"
act upon and/ or to initiate, to invesitigate, to prosecute OT':r'.'O pass any orders based uponythe Lokayulttakeportiiwhichvvis yet to be accepted by the 'Go'Jerriment;.oi=_'based upon the Satellite maps enclosed along withiitlie report and relied upon ubyiithe re;sg§5i:dén:.§" 'hereinhideritifying the impugned areas;-__as Ee'ncro.a'che:'ul thepetitioner, as such report or conclusive evidence against .»the~ = as"--.itne_,1iJ ibvevre. hot parties to the Lokayulcta proceedings'Vnor._they were given any notice or opportunity tofile t.heirA:_obie'otion.s«to the Lokayukta report or the GPS sketch_es,. while the impugned FIR dated 3.2.2909 and passingvthe border of seizure dated 3.2.2009. .A 6.3) We areiybut, unable to appreciate that the Lokayukta r-report' basis for initiating any lawful action against those who are involved in unlawful acts in an illegal rncinne:'." One should not forget that the office of the "Lolcayuikta held by a former Judge of the Apex Court. It is to assume or presume that the said high authority w_ou'ld: give a report without any material whatsoever. by WT_herefore, we are unable to digest the contention that the 12 Lokayukta report cannot be a basis for even to initiate an action against an illegal act. However, on the ground that the petitioner did not have an opportunity of being heard''w .' before the Lolcayukta nor before initiating an action byfllthe-« -- 'T ' second respondent herein based on the Lolcayukta report in the sketches enclosed thereto, we do not intend totalce'any it view against the petitioner in this regard as would"'be'7'*-t otherwise opposed to the principles of naturalj_ustice.g'V."_; A i " ' 6.4) Of course, it is a settledV'Vi'c»l.a"w that' exercise 'of administrative powers will...stand-"vitiated-,.fl' there-.,is..Va manifest error of record or cafpoweri isarbitrarg or such power had been exercised non.>co'ris:ideration or non-application _of.Im~ind for non--
compliance of But the fact that the petitioner' not':e':',V'\fven..:iankzopportunity before initiating an 'L-okagutka report or the sketches' enclosed«"'fiO«V_I_hef rep_ort..by-- itself cannot be a ground to quash"'the- FIR' and the seizure order dated 3. as re_port:_uofthe Lokayukta is presumed to be made based materials that are to be substantiated i V. by the prosecution atvappropriate stage. Therefore, it may not be properfoi~ this court to conclude that at prima facie "stag'e, «no-gage was"'made out.
6. S)"'Similarlg;; it is settled law that the electronic evidence Wis admissible in evidence. It may also be not proper for this 'rcouirt-to jump into the conclusion that the respondents are i n.ot'entitled to place reliance upon the satellite imagery, as on electronic evidence is admissible in evidence; but the 13 same has to be substantiated by the respondents in the trial before the competent court and the petitioner is also entitled to rebut the same so that the rule of law woul::_l"--r ."
prevail. Therefore, to contend that it would not be safe:Hfor'~«i --- 'T V the respondents to initiate lawfiil action based in Lokayukta report or the satellite sketches henclosued therewith against the unlawful acts allegedtrtoivhaue committed by the petitioner by illegal 'min-ing operationi' encroaching into the forest area"~..in violation of conditions of the lease agreement enit'e.red.uby the petitioner with the respondentsforest authorit-ies, lacksvtlegval sanctity; because this is not' a ,case_wh:vere"t@,respondents propose to shut down an activity-.which_i§.;[arried'--o'n by the petitioners lawfi4~lly_:»._,bia:t unfortunately,"itfisthe case of the respondents,:_. on :ift.he report of the Lolcayukta, that petitio.ne.r_' haisihallegedly violated the maintenance 'of and whereupon the observance V --- enacted to protect the environment and eco_log«y'--is sought to be ensured.
" When' the Vhlghokauyukta finds fault against the he --executive.sfor--theirfailure' to implement such laws to protect "environ!ricant'v and ecology, the petitioner projects the ihgrievancev :"aga-;'.rist~" the executives for acting upon the Lokayukta But, under such circumstances, in our j considered' opinion, the executives should have a free hand Ito proceed "with investigation further into the matter to do conferred by law and by people, particularly faced with money-power and manpower.
= mctherwise, the respect for law and people would be lost. Wit;
wk} 3' .'..
14
6. 7) According to the respondents, the petitioner has encroached into the forest area which is outside the leased out area. Learned Advocate General invited our attention that when the leased out area has been superimposed on the satellite map, the encroachment of the forest area" . stands clearly established; and that the satellite 'T ' obtained from the Karnataka State Remote Application Centre, which is a nodal ageincy , for the Ventire State with regard to GPS and remote sensing,, wouId.'prirna'= facie show that the petitioner had encroach_ed upon the' forest area, outside the leased out .ar'ea whichgis ano_ffen_c'e~ by itself and the authorities are dutyiboun.d to prevent such illegal encroachment and mininglulloperations apartfrom seizing the machineries and to '-coigfiesccitelii the. same by appropriate proceedings.
6.8) :V;Oncelitliere evidence to show that the petitionefi had 'encroache,dl'%upon the forest land and operating its activity o"u.tside*--.tthe limits of the leased out area, _ -learned fkdvocate. 'General contends that the " 2 ,_ respoiedents have nooption except to initiate criminal action petitioner by filing FIR' and seize the minerals irninedl o_u'tside' leased out area, which is a forest produce, with the tools, machineries and vehicles used*--in the. commission of the offence and also to confiscate "the same in appropriate proceedings.
" €;.<_3A)_f5 On the other hand, Mr. Vijagashankar, learned l senior counsel for the petitioner strongly contends that there it an apparent variation between the field sketch enclosed NW w.»m~"' ' 15 with the Agreements dated 7.8.1997 and 24.11.2008 entered between the petitioner and the forest department and the satellite imagery relied upon in the Lokayukta"'-.""'- 0' report, which is the basis for the impugned FIR andf_"the-«i..'_' » seizure order dated 3.2.2009 and both do not tally"-withgv. 0' each other even to the naked eye and therefore, there his-no encroachment at all.
6.10) It is for that reason, the learned Add-{locate Geinejal, placing reliance on the averments in the statemientiof objections, submits that the appropriateivauthority'would conduct a further investigation in thegmatter' proceed in accordance with law. The learned further agrees that while decidingithe ;encroa'.ohVment, after giving notice petitioner; and would be conducted in ipresence of the§Pe,titioner, "Controller of Mines, Indian '.M'l:i'.},f,.g_, the nominee not below the ranlc"iivQ,f' Director by the Director General, xflurveyi of of the above submission, the contention of the senior counsel for the petitioner that the proceedings vitiates for non--compliance of and 62--B"of'the KF Act do not arise, as the ';'espondents are 'yet to complete the investigation.
06.'! In circrumstances, we hold that the Lokayukta report at'1_d.Ii'!e3'; satellite sketch relied on in the Lokayukta Wreport be the basis for filing the impugned FIR and passing the order of seizure dated 3.2.2009. " 16
7.3. Applying the said ratio, Issue No.1 is answered in the positive. C
8.}. Issue Noll:
Whether it is proper for this.'Coi:irt«--Vto_p e'§é;er.eji'see._r'V the power of judiciai review Articie' of V" "
the Constitution of Indi_e*~.t.to quash. irstt. Information Report dated it "
8.2. with regard to the 'isameit qiievstioh, this Court, by order dated 13.4.2009..pessed,....ie"fivrii;ppiéetiiiieii'*Ve--§:-e';3812 of 2009, held thus:
":21. _I§_§L-£8-~Ng;;:f.T_ ' "
Whether it Court to exercise the power under Ar'ticieV_22a6.of\'the'Constitution of India to quash the First Information" Report dated 3.2.2009? V V, .5 C7". The peter offudiciaz review under Article 226 V ~,.-(f thei:.Constitution o_ifwIndia is akin to the inherent power section 482 of the Code of Criminal settled law that even though such inherent po~iv.e;r.sconferred on the High Court are very wide, _ rhthe very pienitude of the power requires great caution in its .t,iViexeer(;ise and the Courts must be very careful to see that its in exercise of such inherent power is based on V sound principles as held by the Apex Court in the case of C " INDER MOHAN GOSWAMI AND ANOTHER v. STATE OF gwfi--N e.»«~»- W I7 UTTARANCHAL AND OTHERS reported in (2007)12 SCC 1, because the inherent powers conferred on this Court has to be sparingly exercised (i) to give effect to an order under.' -V the Code; (ii) to prevent abuse of process of Court; andM(iiij« --- V to otherwise secure the ends of justice, but in any event' in to encourage violations of the provisions ofany statugtesiira V' force much any conditions of agreement thereunderiw'hich"' empowers the competent authority to ivtalice approggriatei' action against the law breakers those "who iviolate"'the"
conditions of agreement.
7.3) In any' event,_.i::3uch_ p;j)u:e'rs_"shouyld not be exercised to stifle a legitimate prosecution .--a.n"dA-therefore the Courts should refrain from pii'maifacie"decision in a case where theventirlefactséi' incoznplelteiiand hazy, more so, when the n'of':been..collected and produced before the --Cou_rt.' 7:44) the the learned Advocate General comes forwa-rdxto substantiate the complaint made against the petitiorterv"toT.the illegal mining operation " 2 y_carri_ed«;on__outside leased out area. Therefore, when the evidence yet to-._be collected and produced before the Court andghtherrespuorzdents are prepared to substantiate the illegal miningl'operationfby the petitioner, it may not be proper for V _ this Court to use the inherent power to stifle the legitimate V'prosecution'3 nor to give a prima--facie decision hastily. we are convinced that it may not be proper for this C'o_uri to quash the F.I.R. at this stage." 1 _, ;_..,m .... W,"
18
8.3. Following the said ratio, Issue No.11 is answered in the positive.
9. 1. Issue No.III:
Whether the 'second respondenthis emp'owe-red, to:
seize the machinery, equipnient,_lli'ron_,gore' vehicles belonging to the petitionesffby a'n_--.o'rde.r it dated 3.2.2009, for hayi11.g cofiirnittecii. mining operation in the fore'st_area?
9.2. In the similar facts circttnistafices of the case, while Considering the very same qi1esti_or1,V " order dated 13.4.2009 passed i;1*;2}:.%:" V2009, held thus:
43,1 it A g _ Whetheritrieseco.nd' 'respondejnt is empowered toliseize the niia'cnirae_ry',.equipment, iron ore and iiehicies t)elongi'rig:_l.to the petitioner, by an order datedV_i3.fi.2(V309, for having committed __.lan.---i'iEegal miningoperation in the forest area? _ _ enacted The Forest (Conservation) Act,' ';7~98(v)'iri',:--order to prevent deforestation which causes ecologica!.__'" imbalance and leads to environmental _ Hdeterioration. The deforestation causes widespread concern. l..fS'ection of the FC Act imposes the restriction on de~ _ _lreservation of forest or use of forest land for non--forest purposes and as per the said Section, no State Government (#3 c 'x *3' / \3 19 or authority shall make, except with the prior approval of the Central Government, any Order directing (i) that the reserved forest shall be ceased to be reserved; (ii) that any forest land' or any portion thereof may be used for any man ' purpose; (iii) that any forest land may be assigned__by._way'» in o lease or otherwise to an rivatew erson or to'-ariy"
P y _4 it '\.
authority, corporation, agency or any other:otrg.anii:ation"no't owned, managed or controlled by State Government, band (iv) that any forest land may be cleared of trees haves' grown naturally.
8.3) Afier the FC _ca_me{_ no mining lease/ licence can be granted in_the'_fcrest~.arearwithout the prior approval oflthe which is a condition preced.ent,;:}because 2 ih'e"Fc Act starts with non--obstante"clails'e vijéyeifflltiotibithstanding anything containcaltin '!aw_for'ia'1e. being in force in a Stbite..__.". There_fo_re,ino«.non--fcrest activity can be carried on in theiforesti area;'iAexcept:Vliwitl1 the prior approval of the Central Government,_ means, even the State Government cannot carry on any such non~forest activity in
-_the"forests.Aarea withoit't"'the prior approval of the Central 'C§overnrn,ent, fact that the mining activity amounts to i'71.onI:';'brest4patrpose--'is beyond doubt. renewal of a lease is really the grant of a ___V'-fresh lease as held by the Apex Court in DELHI 4 ..f1J:1;VELoP.MENT AUTHORITY Vs. DURGA CHAND ' traverse [AIR 1973 so 2509] and therefore such prior approval of the Central Government in terms of Section 2 of 21 whether the respondents are empowered to suspend the mining licence for violation of the conditions of the agreement entereiclgeiinto between the petitioner and forest department. In the u it is held thus:
"75. Issue No. II. _ y 1 A Whether the fourth respondent --.
empowered to suspend _mining.. licencej A ' invoking condition No.23 of agreement_for--v-I the alleged violation.» the 'Nos.8, l9,' 13 and I 8 of the agreer}ieni--_da{ted ?
Parliament e'nacted,"the- l?orest:'*s,(Conservation) Act, 1980 in ordertoiiigipreizent deforestation' V-which causes ecological iSinbalance'3'..__ ar1;,»_§e.,,,_v leads to,' environmental deterioration. if ' .lde}"orestation _ "causes widespread concem.:'$ection file.Vl5ores't__i(C'onservation) Act, 1980 imposes restrictioniioin .de'reservation of forest or use of forestgelavnd for"non--for-estlpurpsoses. As per Section 2 of the
--' v. e_ Farest1,(Cjoneervation).«Act, no State Government or authority except with the prior approval of the Central any: order directing (i) that the reserved forest sltallitie be reserved; (ii) that any forest land or _ anyiportion ~tliereof may be used for any non forest {iii} that any forest land may be assigned by way lease or otherwise to any private person or to any if i ailthcrity, corporation, agency or any other organization not owned, managed or controlled by State Government, and fl?
22 {iv} that any forest land may be cleared of trees which have grown naturaliy.
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:"'-:ii"' Government, which is a condition precedent, because' Section 2 of the Forest (Conservation) Act starts u;ith'non~i.l.:"
obstante clause viz., "Notwithstanding 'ianytihing contained in any other law for the 'in V' in a State." Therefore, no non~forest*-- activity [ca-Li; A be carried on in the forest area, except_,_u)~f.th the prior-approizalill of the Central Government, which even' the State Government cannot carry 'any nonforest actiuityiin the forest area without the appiouainviiiofgvthe Central Government. The fact that.~thc_mining'aactivitg"'amounts to non--forest purpose'i<;_t§eyon.d doubt. = is really the grant of a fresh lease, as held"'.:byVi"the Apex Court in DELHI DEVE£:QPMENT,AU7:HOR.lTY 'Vs. DURGA CHAND KAUSISH. * v. A_ AIRVJx260Q,__therefore such prior approval of the :iC'en_tral Government in terms of Section 2 of the Forest ,_(Conserziation}4ViAct,_}I980 would be required when mining lease'Vgranteiii'-before the commencement of the said Act is renewed .ajter"its coming into force.
it * The impugned quarry is admittedly located in itheforest area. Therefore, the mining lease granted to the S petitioner in such forest area is subject to the conditions i it "irnposed by the Central Government and State Government 23 while exercising the power conferred under Section 2 of the Forest (Conservation) Act, 1980. While thus exercising the power conferred under Section 2 of the Forest (Conservation) Act, an agreement was entered into between, the petitioner and the 4th respondent on 19.4.2007 wherein the petitioner--company have specifically agreed to with the conditions incorporated in the said agreern:entf'~V., r Had the agreement not been executed, mining. lease' its_elf_y 'V would not have been granted to thei"petit_io"ner. hijrideri . Condition No.23 of the said agreement, the petitioner also agreed that the fourth respondent has the_ pozverilto suspend the mining licence,' if the,ccn.dition,s agreedto the petitioner while executing' agreieinentiiare violated. Therefore, as rightly pointed out Advocate General, the fourtl_l're_spondent empoweredto suspend the licence, _ conditions _Vagreea'"""to by the petitioner/lesseeifyarelifiviolatedt Biibitvivdepends upon the facts and circumstances each 'case as to the enforcing circumstances. _ 719}. It is not_vin'dispute that the very area leased out
-' V. to {petitioner is in dispute and there are civil litigations 1_oending..vin.,this"vregard between the petitioner and the rn.ini.n'g operators, of which, one of them is sewed by.thei.;E-lon'ble Supreme Court, where theg issue to 'V survey respective leased out area is under luconsiderat-ion. As a result, the leased out area of the petitioner itself is yet to be identified and demarcated. In * that' 'view of the matter, the enforceability of condition a ..Nos.8, 9, I3 and 18 referred to in observations 2 and 3 has 25
12) Following the decisions dated 13.4.2009 in Writ Petition No.3812 of 2009 and 1.4.2009 passed in 60023 of 2009, xye»..p'ass the following:
0 R D E R
(i) Lokayukta report and the thereto can be the basis for th'e.pre.spoindentis.t.o prosecute the FIR dated«--.._3.2.2'0.09 pand:""t.]§;re.v_pp Seizure order dated it
(ii) the prayer to Information Report dated 3.2.2009 giving liberty to4.:it1<.:..e 2- proceed in accordance §§iri.f.h.. laW,_ subject' towthe orders he-re'un_d"e-r; 2
(iii) Deputy V _.of Forests, Bellary Divisio_ni,_]3ie11iary::«foi:rth Respondent, shall 'gin-apecti anti survey the impugned area leased to the 'petitioner, in the presence of the =.pevtitio_'n.e:r',-._ the Controller of Mines, Indian o'fiV..Mines, Bangalore, along with the no_rnine~eAlnot below the rank of the Deputy Director by the Director General, Survey of it ..zIndia, and take appropriate decision as to the "alleged encroachment by the petitioner with reference to the survey records and other
(iv) 26 relevant material available and documents produced in this regard. If any encroachment of forest land is found, the respondents are at liberty to assess the damages caused o1~;.vi:"' account of such illegal mining outside'_-"theiii leased out mining area and recover the..sani1ve=_:' from the petitioner;
The respondents are directedwto'wreturnffiflfle i' tools, Vehicles and machinery to petitivonicriv on the condition that y_the»,__s'-arpne shall be? '.'VthE6V '3, ~ ,__ respondents / jurisdictional Magistrate iahdfirilienv iirequired produced befcirié;
by law, subject tofthe' 'the«,irispection to be c_oi1dt§cted fourth respondent in the hp': eS.:énceVu" the . petitioner and Controller of M,ine*s,' Indianpiiaulreau of Mines, Bangalore, along iwicthi the'=r10m'i~n_eei'i.not below the rank of _a_v Deputy' Dir'ectorVi"by the Director General, 'igsurvey of In"di.a__,___referred to above; it which is already seized by the '--._giauti1oj:itiesiV which is alleged to have been miried «ioutside the leased out area shall be in tlzewcustody of the forest authorities and the it «.,.authorities are at liberty to take appropriate "decision in the matter subject to the finding in 27 the inspection and assessment of the damages and to recover the same from the petitioner;
vi) Subject to the finding arrived at by the fourth respondent--Depu_ty Conservator of Forests,"
Bellary Division, and the Controller of Mi_1jes',' ' Indian Bureau of Mines, Bangalore; peti_tiicner::_f i"
shall rectify the violation hy""1"eIr1oVfing_Vif if overburden waste whatsoever weeks from the date of .s1,;_.ch ord_er-- passed 1 the fourth respondent an.d°~the Co-nhtxlollxer i Mines, Indian Bureau Vof..ii:i$/Einesg Banga.1Ao1je:;§ and
vii) The respondentsparedirectedi the petitioner the operation in the .1e'ag:.gd...,_5ut areawhich is not disputed by the forest a.uthoritie.sA;' ~ « .
12) Writjrpetitionuisdaccordingfy disposed of. No costs. sal-
Chiei Tustice Sdflgu Judge = '.V'fi:'.i't"*:;>: yEj§. t.,.Nj' X 1' ifi»'e.b"host 2» Y$,s'"/ NO V nk/,1;in'* "