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 lie”
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'* "