Telangana High Court
M/S. Balaji Metal And Sand Manufacturer ... vs The Asst. Director Of Mines And Geology ... on 2 March, 2022
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No.5786 and 12395 of 2021
COMMON ORDER:
The petitioner and the issue involved in both the writ petitions is common. Therefore, they are clubbed together and disposed of together by this common order.
The petitioner is one M/s.Balaji Metal and Sand Manufacturer (P) Ltd., has filed W.P.No.5786 of 2021 assailing the proceedings of the respondent No.1 i.e., the District Forest Officer, Kamareddy, vide proceedings in show- cause notice in Rc.No.4437/2020/S5, dated 06.01.2021 directing the petitioner to stop the mining activity in the subject land, and consequently, sought for a direction to the respondents to permit the petitioner-company to carry on its business in the quarry lease area in terms of the work order and lease deed, dated 16.02.2016.
Subsequently, the very same petitioner-company filed W.P.No.12395 of 2021 assailing the letter of the Assistant Director of Mines and Geology, Kamareddy, vide letter No.2422/QL/2015, dated 31.12.2020, directing the 2 AAR,J W.P.Nos.5786 and 12395 of 2021 petitioner-company to stop the entire quarrying operations in the quarry lease area.
The case of the petitioner-company is that the Deputy Director of Mines and Geology, Nizamabad vide proceedings No.2159/QL/2015, dated 28.12.2014 granted quarry lease in favour of the company for excavation of Mineral - Building Stone and Road Metal in an extent of 8-165 Hectares in Sy.No.240 of Santhaipet Village, Tadwai Mandal, Nizamabad District for a period of 15 years. By virtue of the same, the Assistant Director of Mines and Geology, Nizamabad, after execution of Lease Deed in Form-G, was pleased to issue Work Order vide proceedings No.2422/QL/2015, dated 16.02.2016. The validity of the lease is till 15.02.2031. For the purpose of carrying out the mining operations, the petitioner-company has obtained all necessary permission/clearances from various departments, purchased the adjacent patta land and installed transformer. The company started commercial activity excavating the mines in accordance with the provisions of the Mines and Minerals (Development & Regulation) Act, 1957 (in short 'Act') and the Rules made there under, by investing huge amount of 3 AAR,J W.P.Nos.5786 and 12395 of 2021 Rs.5.00 crores. While so, the Forest Divisional Officer, Kamareddy, by show-cause notice, dated 06.01.2021, directed the petitioner-company to stop further quarrying operations till the Eco Sensitive Zone (ESZ) demarcation is completed. The company was further informed that the quarry lease area held by the company falls within the jurisdiction of ESZ of Pocharam Wild Life Sanctuary as per Gazette Notification and as per Wild Life Act, 1972. Further, the company was required to show cause as to why it should not be prosecuted in Court of law for violations of provisions of Wild Life Act, 1972, Bio-diversity Act, 2002. In response to the said show-cause notice, the company submitted a reply, dated 25.01.2021, to the Forest Divisional Officer, followed by representation, dated 12.02.2021 to the Monitoring Committee under sub-section (3) of Section 3 of the Environment (Protection) Act, 1986, headed by the District Collector, Kamareddy, and the District Collector, Nizamabad, with a request to permit the quarrying and crushing activity as it is catering to the domestic needs of local residents. Challenging the said show-cause notice, dated 06.01.2021, the company has filed W.P.No.5786 of 2021. Thereafter, the petitioner-company has challenged the proceedings of the 4 AAR,J W.P.Nos.5786 and 12395 of 2021 Assistant Director of Mines and Geology, Kamareddy, vide letter No.2422/QL/2015, dated 31.12.2020, directing the petitioner-company to stop the entire quarrying operations in the quarry lease area.
Heard the learned counsel for the petitioner-company, the learned Government Pleader for Mines and Geology, the learned Government Pleader for Revenue, the learned Government Pleader for Forests, and Sri Zakir Ali Danish, the learned Standing Counsel for the Telangana State Northern Power Distribution Company Limited, for the respondents. Perused the material available on record.
While admitting W.P.No.5786 of 2021 on 15.03.2021, this Court has granted interim suspension of the show-cause notice, dated 06.01.2021, issued by the Forest Divisional Officer, Kamareddy.
The learned counsel for the petitioner-company has submitted that the impugned notice, dated 31.12.2020, issued by the Assistant Director of Mines and Geology, which is the subject matter of W.P.No.12395 of 2021, is without issuing any prior show cause notice or hearing the petitioner 5 AAR,J W.P.Nos.5786 and 12395 of 2021 and therefore, it is against the principle of audi alteram partem, illegal, bad, arbitrary exercise of power not vested with the authority. That the impugned notice is issued without application of mind based on the letter written by the Divisional Forest Officer. That the authority, without verifying the true facts, has simply followed the instructions issued by the Divisional Forest Officer and therefore the impugned notice is liable to be set aside. Further, the notice, dated 31.12.2020, refers to two letters, dated 21.05.2019 and 04.12.2019 of the Forest Range Officer, Kamareddy, and also the letter dated 29.12.2020 of the Divisional Forest Officer, Kamareddy. That before passing the impugned order, the material relied by them ought to have served on the petitioner-company, in which event, the petitioner would have known the reasons for asking him to stop the quarrying operations. It is submitted that the notification issued by the Ministry of Environment, dated 26.05.2017, can only be prospective in nature and will not be applicable to the petitioner quarry lease issued prior to the date of the said notification. Further, it is stated that the petitioner-company was granted the quarry lease much before the date of final notification issued by the Ministry of Environment and 6 AAR,J W.P.Nos.5786 and 12395 of 2021 Forests and Climate Change, dated 26.05.2017, and therefore, the objection of the forest officials that the quarrying activity cannot be permitted within the ESZ cannot be sustained. Moreover, the letter, dated 09.12.2020, addressed by the Principal Chief Conservator of Forests, to the Director of Mines and Geology, Hyderabad, clearly states that a distance of 7.5 meters radius should be maintained as safety zone area while granting the mining lease as per Forest Conservation Rules. In the present case, the quarry lease area is situated at a distance of more than 20 meters at some place and more than 50 meters at other places from the declared boundary of the Reserve Forest and therefore, there is no necessity for the petitioner-company to obtain 'NOC' from the Forest Department.
That insofar as the letter, dated 06.01.2021, of the Divisional Forest Officer-R.1, which is the subject matter of W.P.No.5786 of 2021, is concerned, the learned counsel has stated that the letter directing the petitioner to stop the mining activity is one without jurisdiction and contrary to the principles of natural justice. That the authorities on one hand state that the demarcation of ESZ is still to be 7 AAR,J W.P.Nos.5786 and 12395 of 2021 completed and on the other hand directs the petitioner to stop the mining activity without there being any legal basis. That as long as the mining lease executed in favour of the petitioner is subsisting, the authorities cannot direct the petitioner to stop the mining activity.
Adverting to the counter affidavit filed by the Assistant Director of Mines and Geology, Kamareddy, the learned Government Pleader for Mines and Geology, while admitting the grant of quarry lease and the execution of Lease Deed in favour of the petitioner-company, which is valid till 15.02.2031, has contended that the Forest Range Officer, Kamareddy, vide letter No.RC.38/KMR/2018, dated 21.05.2019, has informed that initial draft notification was issued on 01.12.2015 notifying the ESZ, which includes Santaipet Village, Tadwai Mandal and the present mining area in Sy.No.240 of Santaipet Village is falling very near to compartments 661 & 662 of Santaipet Beat of Pocharam Wildlife Sanctuary. As the mining activities and stone quarry are prohibited in the ESZ of the Pocharam Wildlife Sanctuary, which was notified under Gazette No.2542, dated 01.12.2015, the petitioner was directed to stop mining activity till the ESZ 8 AAR,J W.P.Nos.5786 and 12395 of 2021 demarcation is completed in the field and the clarification received from the Mines and Geology Department.
Learned Government Pleader for Forests, while reiterating the averments made in the counter affidavit, has submitted that by overlapping of the maps of the mining area on Google Earth with the boundaries demarcated for ESZ as shown, in the Gazette, Forest Boundary, actual mining area boundary, revenue map with the survey report, it was found that the mining area is at a distance of 22 meters from the Sanctuary Boundary and within ESZ area. Further, on 23.04.2021, the Forest and Revenue officials have conducted a joint survey of the location of the petitioner wherein it was concluded that the stone crusher of the petitioner Company completely falls in ESZ and is located within 22 meters from the Santhaipet Forest Beat Boundary. Therefore, relying on the orders of the Hon'ble Supreme Court in T.N.Godavarman Thirumalpad v. Union of India [WP (C) No.202 of 1995] the authorities have issued the impugned show cause notice dated 06.01.2021 to the petitioner asking to stop the mining activity. Learned Government Pleader has contended that the authorities have strictly followed the provisions of law holding 9 AAR,J W.P.Nos.5786 and 12395 of 2021 the field in case of the petitioner, there are no merits in the writ petition and the same is liable to be dismissed.
The only important point that has to be considered in the present writ petition is as to whether the notification dated 01.12.2015 is applicable to the facts of the present case and if the same is applicable whether it will operate prospectively or retrospectively.
Admittedly, the basis for the issuance of the show cause notice dated 06.01.2021 is the Gazette notification dated 26.05.2017. The draft notification was issued on 23.11.2015 and the final notification was issued on 26.05.2017. It is pertinent to extract the relevant portion of both the notifications for better appreciation of the matters and to find out as to whether the notification is applicable to the petitioner or not.
Initially, the draft notification was issued on 23.11.2015 by the Ministry of Environment, Forest and Climate Change, New Delhi, vide Standing Order No.3223(E) calling for objections. The relevant portion of the said notification reads as under:
10 AAR,J W.P.Nos.5786 and 12395 of 2021
4. List of activities prohibited or to be regulated within the Eco-sensitive Zone:-
All activities in the Eco sensitive Zone shall be governed by the provisions of the Environment (Protection) Act, 1986 (29 of 1986) and the rules made thereunder, and be regulated in the manner specified in the Table below, namely:-
Sl. Activity Description
No
(1) (2) (3)
Prohibited Activities
1. Commercial (a) New and existing mining (minor and major minerals),
mining, stone quarrying shall be prohibited within the ESZ except for
stone domestic bona fide needs.
quarrying, (b) The mining operations shall be in accordance with the
crushing interim order of the Hon'ble Supreme Court dated 04th
units August, 2006, in the matter of T.N.Godavarman
Thirumulpad Vs. Union of India in W.P. (C) No.202 of 1995 and the order of the Hon'ble Supreme Court dated 21st April, 2014, in the matter of Goa Foundation Vs. Union of India in W.P. (C) No.435 of 2012.
(c) the existing projects which are falling within the zone area after completion of lease period shall not be renewed/extended for further period in Nizamabad District.
Whereas in Medak District of Eco sensitive Zone no mining activity is permitted.
(EMPHASIS ADDED) Thereafter, the final notification was published on 26.05.2017 by the Ministry of Environment, Forest and Climate Change, New Delhi, vide Standing Order No.1699(E). The relevant portion of the said notification is as under:
4. List of activities prohibited or to be regulated within Eco-sensitive Zone:-
All activities in Eco sensitive Zone shall be governed by the provisions of the Environment (Protection) Act, 1986 (29 of 1986) and the rules made there under 11 AAR,J W.P.Nos.5786 and 12395 of 2021 including the Coastal Regulation Zone (CRZ), 2011, and the Environmental Impact Assessment (EIA) Notification, 2006 and other applicable laws including the Forest (Conversation) Act, 1980 (69 of 1980), the Indian Forest Act, 1927 (16 of 1927), the Wildlife (Protection) Act, 1972 (53 of 1972), and amendments made thereto, and be regulated in the manner specified in Table below, namely:-
Sl. Activity Description
No
(1) (2) (3)
A. Prohibited Activities
1. Commercial (a) New (minor and major minerals), stone quarrying and
mining, crushing units shall be prohibited except for meeting the
stone domestic needs of bona fide local residents including digging
quarrying of earth for construction or repair of houses and for
and manufacture of country tiles or bricks for housing for
crushing personal consumption.
units (b) The mining operations shall be carried out in accordance
with the order of the Hon'ble Supreme Court dated 04th August, 2006, in the matter of T.N.Godavarman Thirumulpad Vs. UOI in W.P. (C) No.202 of 1995 and dated 21st April, 2014, in the matter of Goa Foundation Vs. UOI in W.P. (C) No.435 of 2012.
(EMPHASIS ADDED) As seen from the above table, the draft notification consists of the words 'new' and 'existing' to include both new and old quarrying activities whereas the final notification contains the word 'new' stone quarrying only and the word 'existing' has been removed. Therefore, the contention of the official respondents that all mining activities whether new or old are prohibited under the notification is without any legal 12 AAR,J W.P.Nos.5786 and 12395 of 2021 basis and contrary to the record. Even for the sake of argument if the contention of the respondents that the notification is valid and applicable to the land of the petitioner is to be accepted, it is settled that any Act, Rules, Notifications will operate only prospectively and not retrospectively.
The cardinal principle of law of Interpretation of Statutes, Rules etc., is that any Act, Rule or Notification or Amendments thereof shall apply prospectively unless otherwise specified.
The Hon'ble Supreme Court in G.J. Raja v. Tejraj Surana1, while interpreting as to whether Section 143-A of Employees' State Insurance Act, 1948 was applicable prospectively or retrospectively, has held as under:
"21. In our view, the applicability of Section 143-A of the Act must, therefore, be held to be prospective in nature and confined to cases where offences were committed after the introduction of Section 143-A, in order to force an accused to pay such interim compensation."
1 2019 (19) SCC 469 13 AAR,J W.P.Nos.5786 and 12395 of 2021 In CIT V. Vatika Township (P) Ltd.2, the Hon'ble Supreme Court has held as under:
"28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Philips v. Eyre (1870) LR 6 QB 1, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law."
Similarly, the Hon'ble Supreme Court while considering the effect of modified application of the provisions of the Code, as a result of Section 20(4)(bb) of the Terrorist and 2 (2015) 1 SCC 1 14 AAR,J W.P.Nos.5786 and 12395 of 2021 Disruptive Activities (Prevention) Act, 1987, whereunder the period for filing challan or charge-sheet could get extended, has considered the issue about the retrospective operation of the provisions concerned in Hitendra Vishnu Thakur v. State of Maharashtra3 as under:
26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an amending Act and its retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whreas law relating to right of action and right of appeal even though remedial is substantive in nature.
3 (1994) 4 SCC 602 15 AAR,J W.P.Nos.5786 and 12395 of 2021
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not
generally speaking be applied retrospectively
where the result would be to create new
disabilities of obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication." Therefore, the only logical conclusion that can be gathered from the above is that the final notification is not applicable to the existing mining but only to new ones that are sought to be established after the date of final notification.
Moreover, as seen from the record, the petitioner Company has been granted quarry lease way back in the year 2014 for excavation of mineral in an extent of Acs.8-165 hectares in survey No.240 of Santhaipet Village for a period of 15 years and the validity of the said lease is till 15.02.2031. That as on date the lease granted in favour of the petitioner is still in subsistence. The lease was granted by the competent authority under the Act after obtaining all necessary 16 AAR,J W.P.Nos.5786 and 12395 of 2021 approvals and permissions from all the authorities envisaged in the Act. The area falling in survey No.240 is admittedly a Government land and the Revenue officials after demarcation of the land sought to be mined granted NOC and the mining authorities have given the necessary permissions and entered into a lease agreement which is subsisting till 2031. The other Government agencies like The District Town & Country Planning vide Lr.D.Dis.No.173/2019/ DTCPO/NZB, dated 13.06.2016, The Telangana State Pollution Control Board vide Order No.NZB-438/PCB/ZO/RCP/CFE/ 2016-1310 dated 01.07.2016, Northern Power Distribution Corporation of India vide Lr.No.EI/NZB/Tech/EI.EX. 650V- NZB/D.No.539/16 dated 30.07.2016, The Inspector of Factories, Nizamabad, vide Lr.No.C/129/2017, dated 21.03.2017, have all given their approvals/permissions/NOC for issuance of the Mining lease in favour of the petitioner and then only the Mining Lease was granted. Even the Forest Department by letter dated 09.12.2003 has clarified that the distance between the Forest boundary and mining area should be 7.5 meters. It is pertinent to note that the Mining lease issued in favour of the petitioner is still valid and subsisting and it is also not denied that the petitioner has 17 AAR,J W.P.Nos.5786 and 12395 of 2021 incurred huge expenditure for establishing the quarry, obtaining the lease, paying the seigniorage fee, etc. In view of the above factual scenario, the show cause notice dated 06.01.2021 issued by the Forest Divisional Officer, Kamareddy, directing the petitioner Company to stop the quarrying operations till the Eco Sensitive Zone (ESZ) demarcation is completed, cannot be countenanced for the simple reason that the lease deed executed in favour of the petitioner is still in subsistence. Even if the contention of the Forest Department that the notification issued by the Ministry of Environment dated 26.05.2017 prohibits any quarrying operation within ESZ is taken to be correct, unless the demarcation takes place, the direction of the respondent No.1 to stop the Mining activity is beyond his jurisdiction. The reliance of the respondents on the Google Earth Survey cannot be countenanced as the same has not been prescribed by any Act/Rules or procedure till date. Even the Joint Survey that the officials are stated to have conducted is not of much significance as it is not stated anywhere as to whether the same has been conducted in the presence of the petitioner duly putting him on notice. The stand of the respondents is very strange. On one hand they say that the 18 AAR,J W.P.Nos.5786 and 12395 of 2021 survey is conducted while on the other hand they say the demarcation is yet to take place as evidenced by the impugned order itself. Unless the demarcation of the ESZ takes place, that too in the presence of the petitioner and other interested parties, a show cause notice is issued to the petitioner calling for an explanation and then passing order after duly considering the explanation, the authorities cannot direct the petitioner to stop the quarrying operations which have been validly granted and still in subsistence.
Another contention raised by the respondents that the writ petition is not maintainable as against the show cause notice is concerned, even though the nomenclature of the said letter is mentioned as 'show cause notice', the contents in effect direct the petitioner to stop all mining activities till the ESZ is demarcated. A bare reading of the said letter discloses that the respondent authority has made up his mind and directed the petitioner to stop the work. There is no absolute bar that the show cause notice cannot be challenged in a Writ Petition. If it is shown that the authority does not have the jurisdiction to issue the impugned order or acted in excess of jurisdiction or that the same is issued 19 AAR,J W.P.Nos.5786 and 12395 of 2021 contrary to the well established principle of law or without any legal basis, then the High Court can definitely step-in and set aside the impugned order. Reference may be made to the judgments of the Hon'ble Supreme Court in Whirlpool Corpn. v. Registrar of Trade Marks4, Deputy Commissioner, Central Excise v. Sushil and Company5 and M/s.Siemens Ltd. vs. State of Maharashtra6. The respondents cannot blow hot and cold at the same time, the authorities without demarcating the ESZ and identifying as to whether the land leased to the petitioner is falling within that area, cannot direct the petitioner to stop the mining activity, more so, when the lease is valid and subsisting. The letter of the Assistant Director of Mines and Geology, Kamareddy, dated 31.12.2020, is also bad in law as the mining lease is still in subsistence. As long as the mining lease issued in favour of the petitioner is in subsistence, the authorities cannot direct the petitioner to stop the mining operations, more particularly, on the basis of the letter addressed by the officials of the Forest Department. The mining authorities having granted the mining lease to the petitioner in 4 (1998) 8 SCC 1 5 (2016) 13 SCC 223 6 (2006) 12 SCC 33 20 AAR,J W.P.Nos.5786 and 12395 of 2021 accordance with the Rules, regulations and procedure prescribed, cannot straight away direct the petitioner to stop the mining activity based on the letter written by the Forest Department. The letter issued by the Mining Department is one without any independent application of mind and the same is issued simply at the behest of the Forest Department and merely reiterating the contents of the letter issued by the Forest Department. Therefore, the same is also liable to be set aside.
Even though much reliance has been placed by the respondents on the judgment of the Hon'ble Supreme Court in T.N.Godavarman Thirumalpad v. Union of India [WP (C) No.202 of 1995], the same is not applicable to the facts of the present case as in the above cited case, the Hon'ble Supreme Court was dealing with Temporary Mining Leases only.
Therefore, the direction issued by the authorities to the petitioner Company to stop the mining operations till the demarcation is done that too without fixing any time limit or taking any steps to complete the same, is illegal, bad and arbitrary exercise of power vested on them. In case the officials of the Forest Department are of the opinion that the 21 AAR,J W.P.Nos.5786 and 12395 of 2021 land allocated to the petitioner is in violation of any of the Forest or Environmental laws, firstly they have to take steps to conduct a survey duly putting the petitioner as well as any other interested person on notice and then based on the survey report if they come to the conclusion that the land allocated to the petitioner is falling in the prohibited area, then issue a show cause notice to the petitioner calling for explanation, consider the objections and after giving reasonable opportunity of hearing and pass order on merits. But, till such time the survey and demarcation is done, the official respondents cannot direct the petitioner Company to stop the mining activities.
For the afore-stated reasons, the impugned notices/orders dated 06.01.2021 and 31.12.2020 are set aside and both the writ petitions are allowed leaving it open to the authorities to first conduct survey duly putting the petitioner on notice and thereafter in case they come to the conclusion that the land allocated to the petitioner for mining purposes is falling within the prohibited area or in violation of any Forest or Environmental laws, then take necessary action 22 AAR,J W.P.Nos.5786 and 12395 of 2021 duly putting the petitioner on notice and calling for an explanation and then passing orders on merits.
Miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date: 02.03.2022 sur/smr