High Court Karnataka High Court

M/S Mspl Limited vs The State Of Karnataka And Others on 1 April, 2009

Karnataka High Court
M/S Mspl Limited vs The State Of Karnataka And Others on 1 April, 2009
Author: P.D.Dinakaran(Cj) & V.G.Sabhahit
Rep. by its' Secrvetagg/;'T:=
'De'p'artment__of Forest, Ecology and

i.A1nb*ed1:ar F~Z.oad,Banga}0re 560 001

  Principal Chief Conservator of Forests
 I Aranj-*a»vBhavan, 181" cross, Malleswaram
 ifiangualore 560 003
"=_3".«,T'h'e Conservator of Forests 

IN THE HIGH COURT or KARNATAKA AT BANGALORE
DATED THIS THE 1st DAY or APRIL, 2009 
PRESENT
THE HON'BLE MR. P.D. DINAI{ARA1\}.';,mQIfIIE}'¥"JfiSf}'fi§:iE§'~_ 3 ,1 u  
AND   4' "  4' 
THE I~ION'BLE MR.JUSTIC'E'   %
Writ Petition No. 60023  
Between: A    

M/s MSPL Limited,    
Baldota Enclave, 1   -T
Abheraj Baldota Road"  '

Hospet    »   
Rep. by its Vice..Preéiden1'-.g_{  L)"  
SriK.R. MRec}dy, "     
Aged about Slfvearse    ' ' : Petitioner

(By Sri Krishnan'vYenLigooa1,"~: .eni0r Advocate for Sri M M
Swarny, Advocate) V  V"

Anci':._ 

1 . The see Voféiarnataiia

Environment, z MAVS Building

  

e 5
. "5
:75; 



__10.  "

''1.XXx
2. xxx

3.XXx

4. Fencing, protection and regeneration of the Saf€'€}'.i;'.'_i'i'  

zone area (7.5 metres strip all along the oiiteifl*a..:iii' 

boundary of the mining lease area) shallmbeédone  

project cost. Besides this, afforestationgonflclegradedi'V'*~

forest land, to be selected elseyzvhere, imAeasuringf'.;one i'

and a half times the area under satiety zone,  

be done at the project cost_._

5. xxx A ii

6.x.xx H

7'XXX ; .. . _ . . . _

8. T he User  up blanting work on
the static aicilviance mining
operations.    'M   H 

9. No darnag«e to  fauna of the area

shall be cauise_d.- V  A

 The  area shall be demarcated on

gronadi at  Aiproject cost, using four feet high

'RCC billarstiwith each pillar inscribed with the

...,'"5egrials..'nufnber, forward and backward bearings

 af§.§1J[hs'tance between two adjacent pillars.

 



ending on 31.3.2012 and the same shall not be extended

during the rest of the periods.

2.1) When the petitioner was mining thus,"   1
Resp0ndentnDeputy Conservator of 
by proceedings dated 29.12.2008, jwhicir'v1s:i2rriipugn_§d%'tir1 
present writ petition, referring to  
Conservator of Forests dated the letteriof the
Range Forest Officer, Hospet,e'\(_e_n:  that:

"1. The user  M1/s   Private '_
Limited, Hoéapfe-:¢i"rt'i:»ot "'1:$i':f-obe1¥1yV"fimairiceci their
leased mii1'1'ingT:a5rea)*;,:u._  tiercier mark fixed
area r1ot':_insta11e"d.'the  concrete poles

for every 201 met'ers'«VA1c1i»_s'tane.e and not marked

}'1L11T1b€}'.,O1'1  po1'es,7 mentioned Forward
"and  beariv'--~--g«,"as it is safety zone area,
 to identify 7.5 meters

  and border gunta, it is

1  _vioiati«or1v._of.eonditi0n N0 4 and No 12 of the

 - 2 _ agreem e'r1t;3

 The 'user agency in Vyasanakere forest area
-adoring its mining activities to dump the waste

2""«"}5roduce of mining materials shown 24.75



pending between them at various stages,' including the

one which is seized by the Hon'ble Supreme Court as"o_n

date, on the ground that neighbouring 0p€I"atQ,IT§l"x
encroached into the area leased out to the__pe:titionerl,i'
the petitioner as well as the neilighhouriliqg ~i'o--ple1*at_o"rsVVV 

could not demarcate the mining area--leased o,Li?t.to the:m"'i

nor erect poles; and therefore,llVi'colndigtion'_Nlosh.?l  12
of the Agreement  notlibel given
effect to by the petitioner..as_tvellllas ER',/fvltilevgvrlgighbouring
mining    N0s.4
and 12 cotild   after surveying the

mining a-rea._ leased.--~o_t1it bgtlthe Government.

With regardgto ohsei"lv.atioi_;= 4Nos.2 and 3 referred to in

,_the Vipi{oee'edingls"«dated 29.12.2008, relating to the

l"vio1.ation.._of"eondition Nos.8, 9, 13 and 18 of the

Agreernienvt' 19"" April, 2007, Mr Krishnan

 ' 'Venugopal, learned senior counsel for the petitioner,

   that unless and until the area leased out to the

l"=.._,l.il5eti%tioner, viz. 347.22 hectares is clearly demarcated,

 .._l;'the respondents could not come to

an unilateral

conclusion that the petitioner had encroached outside

the leased out area for dumping overburden waste. The

learned Senior Counsel also brought to our notice

the Controller of Mines, Indian Bureau of Mine$’;’*by’~.ljiis

proceedings dated 30th April 2007 had perm.i.t,te=d_ All

hectares for dumping overburden

petitioner strictly adhered to.s’ Mr. Kllrishnani.VenugoplalAll

submits that the petitioners: are .”p«r.epare}::1 to
substantiate that they {:11 croac:he_d outside the

leased out area, ifan opp’ortu:nity.yi’s_givieijftvolthem.

5.1) Per learned Advocate
General, fairly submits that
condition §\los.l1l¢’Vai1dl dated 19* April
2007 could not p+i)ell’£:i: ¢§AcViétgalinéili the petitioner in View of the

penldencyqoif thEefcivi~lp_litigation between the petitioner and the

;.Vneighbourir_igll rn4i’i1ingt’operators, more particularly, when the

rr;1atte_r is sei–zed__”before the Supreme Court.

,_’Wit’hl respect to observation Nos.2 and 3, the

“Aldvolcate General, on instruction from the Assistant

/”1

Conservator of Forests, I-Iospet and Range Forest Officer,

i-iospet, submits that respondents’ are prepared to

substantiate that the petitioner has encroached

leased out area, after giving an opportunity to thepetit’ioner..,_l

The learned Advocate General further

interim suspension of the min’in_vg–~.,..Vlealse for
violation of the condition Nos. 8, ldli’s.perA1j.r1issible
in View of condition No.23 logfio§::o’oooi,’Voa:eo 19th Apm
2007. However, the learnediz’ that in
the facts and the-llpiitesenltiiicase, where the
petitioner mining operators
have encroach-ed’ leased out area, both on
northern and eastern petitioner is dumping the
overibttrdenhvtjaisteA.within——–h’is leased out area but not into

survey Forest Area, without surveying the

i7.:Fi~e’l.d in tiled presence of the petitioner and the Controller of

‘lVllji»ri«es;. lndian___l3Bureau of Mines, Bangaiore, it may not be

A ‘”rl.:’-1,_lproper,t’o.._iri–‘vol<e condition No.23 of the Agreement dated 19"?

Atom 2057 for the alleged violation of the condition Nos.8, 9,

18, as a serious doubt is raised by the petitioner with

/'5
2 u» M

regard to the alleged encroachment and the petitioner

seriously denies encroachment out side the leased out

In any event, the learned Advocate General also

while deciding the extent of encroachment after_giviriginoti_ceii

to the petitioner, an inspection would Zbegj

presence of the Controller of Mines, Indian.V_B'tireau"i'iQVflylineis,ii

for which proposal Mr Aravind Kumar,'xlearned.,_As,sistant
Solicitor General, appearing for"t–he–Grovernrnent has

also agreed.

5.3) In anv ‘Advocate General
strongly contends quashed merely on
the avermentiiiii’~”?ii€3;–de that he had not
encroached ‘leased area, as such an allegation

has’ito”=be”‘stib3stantiated proved by the respondents in

appropr.iat.e piioceeidings before the competent criminal court.

6) We haivevllgiven our careful consideration to the

suibmissiions ofiboth sides.

“‘f.r§11o.w.£ng questions arise for our consideration:

In View of rival contentions referred to above, the

/”T7’?§'”””‘-\,

-Inforrriiatiori Report dated 14m December, 2008?

Cohfstit1,1tion of India is akin to the inherent power conferred

(I) Whether it is proper for this Court to
exercise the power of judicial review under Article

226 of the Constitution of India to quash the

Information Report dated 14*} Decerrrbper, ‘

(11) Whether the fourth
empowered to suspend .

invoking condition No.23. of
aiieged violation of .13 and
18 of the

(1:1) entitled

to? “”” – V’

7.2. Issue No.1.’ it
“{.I_§)i “Whether. isiiproper for this Court ‘to
_v.iiith e.:4:.’po’wer under Articie 226 of the

India to quash the First

5i’}2,€”~poi7w’er of judiciai review under Article 226 of the

where the entire facts are incomplete and hazy, more so, when
the evidence has not been collected and produced beforeth’e_

Court.

7.4) In the instant case, the learned
comes forward to substantiate the complaintilrniadeagainst
petitioner as to the violation of
dated 19th April 2007. Therefore, isljyet to
be collected and produced and the
respondents are vioiation of
conditions by the be proper for this
Court to l…to”llstii’ie the legitimate
prosecution norilto “giifel decision hastily. Hence,
we are convinced be proper for this Court to
i

Issue’__N.o;’iv i’sv.,an.”s’vcv”ered accordingly.

(ll) Wh’;3ther the fourth respondent is empowered

to suspend the mining licence invoking condition

No.23 of the agreement for the alleged violation of

7.6) After the Forest (Conservation) Act, 1980 came_._into

force, no mining lease /licence can be granted in th.el”fore.stA’

area Without the prior approval of the Central C’

which is a condition precedent, becau’se_Se-ctioln”‘i off./_t’heT.,

Forest (Conservation) Act starts with non”-o_b”stante’l’clai,ise
“Notwithstanding anything contained in an’y._ot1:1erlfg1aw for
the time being in force a ‘$ta_te.’;~–‘?fTherefore, no non-

forest activity can be (carriedc-np thAeV,pforestl”area, except with

the prior approV?:11?._.:of Governtnent, which means, 7

even the State on any such non~
forest activity in ‘aré’a__vJithout the prior approval of

the Central (i}overnInenlt.:’ Tlierrilfact that the mining activity

arnounts “neon–fores.tllpurpose is beyond doubt.

_T’i2.e:”re’r::eWa1 of a lease is really the grant of a fresh

-y,_,.1ease as,p)lihe1d_i(bi5%gpthe Apex Court in DELHI DEVELOPMENT

.[Cairii)~A.UTHoR1Trif’vs. DURGA CHAND KAUSISH-AIR 1973 so

therefore such prior approval of the Central

‘lirlfioverriment in terms of Section 2 of the Forest (Conservation)

1980 would be required when mining lease granted before

2!

during the lease period. It is under such circumstancesguwe

are of the considered opinion that it would not

suspend the mining operation without to i

substantiate the violation of condition Nos;

Otherwise, it will amount to an.r’ar_bitraryl”and urireiasolilgilalile

exercise of power conferred of the
agreement dated 19th _alsouialrir1ount to
violation of the principles Article
14 of the it

Issue

8) Issue Nd.i._(IIr)ii V l i i

To what-relief is entitled to?

” __ result,’ pass the following:

0 R D E R

(i) l’ to quash the First Information
dated 14.12.2008 is rejected, giving
” to the respondents to proceed in

V”-a’ccordance with law subject to the orders

hereunder;

(iii)

22

the impugned order dated 29.12.2008 of thef»,
fourth respondent ~ Deputy Conservato.r__”–Of’–u,W.
Forests, Bellary Division, Bellary directing ‘

stopping of mining activitiesfland suspending ii

the impugned licence, stands}:qua_shed’;._ 4′ ‘

Deputy Conservator of Fo_re.sts,

Be11ary–fourth Respondentglpshall inspiecjt
survey the impugned area” outvto “the
petitioner, in his presence,v’the.,presence
of Controlle:’~of Mi11’e”s*,– of Mines,
Bangalore a reference to
the otherxg relevant material
avaii_a”b–le,: V’ docuznents produced by the
petitioner _t’lie””‘ai1eged violation of the

condition. 18 of the agreement

dated :9th,,’Aprii, 2,007; ,

toned to the finding arrived at by the fourth

Conservator of Forests,

C’ ,_.’Be11arytiI.’;ivision, and the Controller of Mines,

4lndian.iBureau of Mines, Bangalore; petitioner

it .,ehe11i rectify the violation by removing the

V’ overburden waste whatsoever Within two weeks

from the date of such order passed by the
fourth respondent and the Controller of Mines,

Indian Bureau of Mines, Bangalore; and