ORDER
1. The Writ Petition is directed against the order of the first respondent dated 4-8-1984 intimated on 21-8-1984 as well as the order dated 3-1-1984 passed by the State of Karnataka vide annexures ‘G’ and ‘C respectively. The petitioner has also sought for a mandamus directing the respondents to consider and grant renewal of mining lease in favour of the petitioner, in accordance with the application vide annexure ‘A’.
2. This case arises out of the following facts :–
The petitioner was granted a mining lease over an area of 9.30 hectares on Pandari River bed in Akrali village, Khanapur Taluq in Belgaum District in respect of moulding sand for a period of 20 years commencing from 7-7-1964. The lease was granted by the second respondent namely, the State of Karnataka. On 31 -1-1983 the petitioner sought renewal of mining lease in accordance with the provisions of Mineral Concession Rules, 1960 (hereinafter referred to as the ‘Rules’). The application was filed 12 months before the expiry of the lease as contemplated by Rule 28 of the Rules and the application was made to the second respondent. On 3-1-1984, the
second respondent rejected the application for the reasons stated in annexure ‘G’. The same reads as follows :
“I am directed to state that your application dated 5-2-83 for the grant of M.L. over the above mentioned area is rejected for the reasons that the applied area falls within the area reserved for the forest having thick tree growth. Mining Operation in the said area would lead to heavy soil erosion.”
3. Aggrieved by the said order, the petitioner preferred a Revision Petition under Rule 54 of the Rules before the first respondent, namely, Union of India. After the formalities to call for comments were completed, the Union of India confirmed the order passed by the State Government. The petitioner is aggrieved by both the orders.
4. The learned Counsel for the petitioner submitted that mining lease in respect of moulding sand merely involves collection of sand from River bed and in no way hampers tree growth, if any, and it does not involve blasting or cutting or digging huge pits, etc. On the other hand, it is contended that the removal of sand would enable fresh water to flow. According to the learned Counsel, the entire area has no thick forest growth at all. But on the contrary, a township called Ramnagar has come into existence which is a place of rehabilitation for those affected by the construction of Supa Dam. It is pointed out that at a short distance in the vicinity of the Tank bed, Mysore Power Corporation and M/s. Parag Minerals were granted quarry lease and they are in operation and that several leases have been granted and renewed from time to time in and around the area on either side of the River bank. On behalf of the petitioner, it is strongly contended that the lease was in operation for 20 years and it has not caused any deforestation and has not affected the eco-balance and therefore the Forest Conservation Act is not attracted at all. It is therefore submitted that the impugned orders are both arbitrary, and discriminatory besides being illegal. As an instance of discrimination, it is mentioned that a mining lease was granted to one Sri Redkar in respect of an area close to the area in question and an order was passed in respect of the application of the petitioner that the
said area having been already granted under a lease to one Redkar, the petitioner’s application cannot be entertained.
5. As regards the order passed by Union of India, it is pointed out that the Central Government has not applied its mind to the facts and circumstances of the case and the impugned order is not a speaking order because it is a mere repetition of what the State Government has stated. Even the contention regarding discrimination was not considered at all by the first respondent in revision, according to the petitioner. It is therefore submitted that the impugned orders deserve to be set aside and the case of the petitioner should be re-considered on merits and in accordance with law.
6. On the other hand, the learned Government Pleader appearing for Respondents 2 and 3 vehemently contended that the impugned orders are sustainable particularly in view of the authentic information given by the Deputy Conservator of Forests and the Director of Mines and Geology. It is submitted that both the reports are against grant of renewal to the petitioner and it is not open to the petitioner to contend that there would be no soil erosion if the mining lease is renewed and operation is commenced on the River bed. Another contention advanced on behalf of respondents 2 and 3 is that the forest wealth will be affected if the lease is renewed because of erosion of the soil by mining of the sand in the River bed.
7. The learned Government Pleader also supported the order passed in revision by the first respondent confirming the findings of the 3rd respondent.
8. The point for consideration is whether there is any jurisdictional error in the impugned orders of the 1st and 2nd respondents based on non-existent jurisdictional facts and whether the impugned orders are affected by misdirection.
9. I have heard the arguments of the learned Counsel for the petitioner and I have also looked into the original records produced by the learned Government Pleader relating to the proceedings arising out of the application made by the petitioner for renewal of the mining lease.
10. A report bearing No : BLD/ MLL/ 82-83/6308 dated 18-3-1983 is submitted by the Geologist of the Department of Mines and Geology after the inspection was carried out on 22-2-1983. Certain material and relevant revealations emerged from this report which assists the court in determining the question. In Column 5 of the report, the area applied for is described as Revenue Land River bed. In Column 7, is the mention that the area applied for does not fall in reserved zone as per the maps available in the office. In Column 11, it is indicated that the Regional Geological Surveys have been conducted by the Department. In Column 13, it is clearly mentioned that no environmental disturbances can be anticipated if the area is worked. In Column 16, the report is that no complaints are reported so far. In Columns 17 and 18, under any other information considered relevant and recommendations if any, the Inspecting Authority has made the following remarks :–
“1. The applicant is a seasoned mine owner holding several M.L./Q.L. areas.
2. The applicant is removing M.L. sand in the adjacent areas and supplying for industrial purpose.
Hence, the area applied may be considered for sanction in favour of the applicant after proper scrutiny at Head Office. The sketch sent by Head Office is herein returned.”
11. On receipt of the Inspection Report, Senior Geologist, Belgaum Division, Belgaum made the following recommendations :–
“Above aspects and facts are submitted for kind perusal of the Director of Mines and Geology, Bangalore further to this, it is submitted that application impact of write up vide Rule 35 of M.C. Rules 1960 may kindly be examined, besides conditional application impact as envisaged vide Rule 27(1)(0). Rule 70 of M.C. Rules 1960 and S. 18 of M.M.R.D. Act, 1957 be examined and further orders may be passed as the Director
deems fit in the interest of Mineral Resources Development, utilisation and to earn more revenue to the Government.”
12. Thereafter it is seen from the original official records that it was proposed to obtain a report of the DFO. Since the letter calling for the report of the DFO was returned by the postal authorities, the Director of Mines and Geology requested the Chief Conservator of Forests (General), Bangalore to send the letter to the concerned DFO. Thereafter it is not clear from the records whether any report was submitted at all by the DFO. I do not see in the records any report from the DFO on the basis of which the Deputy Conservator of Forests furnished his opinion. In the meanwhile, the Director of Mines and Geology called upon the petitioner to furnish the original lease deed and a copy of the Notification in order to take further action in the matter by a letter dated 21-12-82 and this was complied with by the petitioner. On 21-5-1983, the Deputy Conservator of Forests, Belgaum Division, Belgaum addressed a letter to the Director of Mines and Geology, Bangalore as follows:–
“With reference to the above, I have to state that the Pandhari River passes through the Reserved Forests and if the contractor is allowed work in the area to remove Sand, the vegetation on the bank of the River will be disturbed and the bank of the River will be widened due to the above there will be heavy soil erosion.
Further as per the Forest Conservation Act 1980, no forest area can be released for non-forest purpose.
In view of the above facts, I strongly recommend to reject the request of the applicant.
The accompaniments (Pages 1 to 5) are resubmitted herewith.”
13. Subsequently, the Director of Mines and Geology addressed a letter to the Government of Karnataka by its Secretary mentioning in his letter that the Deputy Conservator of Forests to whom the application was referred has stated in his letter dated
21-5-1983 that mining in that area will result in heavy soil erosion and hence application should be rejected in view of Forest Conservation Act, 1980. Finality was reached when the State Government by its Commerce and Industries Department addressed a letter to the petitioner dated 5-7-83 that the application dated 21-8-82 for grant for mining lease over the area concerned is rejected for the reason that the applied area comes under forest department and also because mining in the area will result in heavy soil erosion and further in view of the Forest Conservation Act, 1980, the area cannot be released for mining purpose. The basic and the earliest document which describes the true state-of-affairs is the inspection report dated 22-2-1983 submitted by the Geologist on 18-3-1983 to the Director, Department of Mines and Geology, Bangalore. The findings given by the Geologist in the said report are not controverted either by the Senior Geologist, Belgaum Division, Belgaum or by the Director of Mines and Geology and not even by the Deputy Conservator of Forests. It is strange that while considering an application for renewal of existing mining lease, though ostensibly procedural requirements are made to appear to have been complied with, in truth, no reliance is placed on the inspection report at all by the senior officials namely, the Director of Mines and Geology and the Deputy Conservator of forests for the purpose of forming an opinion on whether or not it is a fit case for renewal of mining lease. Any decision to be taken in respect of an application made for renewal of mining lease should satisfy the requirements of fair decision making. Decision making process involves consideration of facts which have been discovered by the inspection carried out by a competent authority of the Department who has been specifically deputed for the purpose. In the instant case, the Geologist is the person concerned and what is material is his report. It is this report which should be taken as the basis for further action in the matter. Any decision taken in total disregard of the report made by the Geologist would be not only unscientific but also irrational. Certain revealations found in the inspection report are
of material relevance and they are that the area applied for consists of revenue land River bed, regional geological surveys have been conducted by the Department, no environmental disturbances can be anticipated if the area is worked, the applicant himself is holding mining lease Nos. 920 and 656 in the adjacent areas, no complaints are reported so far, the applicant is a seasoned mine owner holding several M.L./Q.L. areas, the applicant is removing M.L. sand in the adjacent areas and supplying for industrial purpose, and the recommendation that sanction may be considered in favour of the petitioner after proper scrutiny at Head Office. In spite of the fact that the Senior Geologist, Belgaum Division, Belgaum, while forwarding the inspection report to the Director of Mines and Geology, Bangalore stated that the above aspects and facts have been submitted for perusal, I am unable to see any material to infer that either the Director of Mines and Geology or the Deputy Conservator of Forests has applied his mind to the materials found in the inspection report of the Inspecting Officer namely, the Geologist belonging to the Department of Mines and Geology. This leads me to the inference that there is no real application of mind to the material on record by the authorities who took the decision in rejecting the application of the petitioner for renewal of mining lease.
14. In the order dated 3-1-1984, vide annexure ‘C’, it is mentioned by the State Government, Commerce and Industries Department, that the application dated 5-2-83 of the petitioner for grant of mining lease over the area in question is rejected for the reasons that the applied area falls within the area reserved for the forest having thick tree growth. Mining operation in the said area would lead to heavy soil erosion. I have already pointed out from the inspection report that the area applied for belongs to the Revenue Department and is described in the inspection report Column 5, as revenue land River bed. What the petitioner is seeking is not grant of mining lease but renewal of the existing mining lease which had been earlier granted for a period of 20 years without any complaint from any quarters, for the purpose
of removing sand from the River bed. It is not known how it could be said that the area applied for, falls within the area reserved for the forest having thick tree growth. Obviously, the area reserved does not comprise the area reserved for forest having thick tree growth. Sand is said to be removed from the River bed and not from the forest land. Even assuming that the land which reaches the bank of the River is supposed to be the area reserved, this land has been described as revenue land of the River bed and, therefore, the Forest Department also does not come into the picture. It is stated in the said order that mining operation in the said area would lead to heavy soil erosion. As rightly pointed by the learned Counsel for the petitioner no mining as such is involved at all in the process of removal of sand from the River bed.
15. During the rainy seasons, it would be reasonable to presume that sand is swept away to the bank of the River and thereby it gets accumulated. It is this sand which the petitioner wants to remove for his purpose. The question of cutting trees does not arise at all since no tree stand on the River bed. Since no mining operation is involved, in the sense in which it is understood, the question of soil erosion also does not arise. There is no cutting of the embankment in the process of removal of sand and therefore the question of erosion of the embankment also is illusory. More than anything else, this order does not refer to the inspection report at all wherein it is stated that no environmental disturbances can be anticipated, if the area is worked. In these circumstances, I am of the opinion that the order under annexure ‘C’ is misconceived and has no factual basis at all. I am of the opinion that the removal of sand would not result either in soil erosion or in destruction of forest wealth or in upsetting eco-balance. There is no material on record to support the theory of erosion. The fact that a township has come into existence in the adjacent area in order to rehabilitate persons who are the victims of Supa Dam construction cannot be lost sight of. The fact that the adjacent areas are being used for mining purpose is not contradicted. In these circumstances when it is not possible to support the order passed under
Annexure ‘C’ on the basis of material on record, it has to be held that the order under Annexure ‘C’ is unsustainable. I may also add that there is no erosion of soil, but there is erosion of right in so far as the petitioner is concerned.
16. In regard to the order passed in revision by the Union of India vide Annexure ‘G’ I must observe that the predominant portion of the order consists of the pleadings or the comments made by the parties concerned and a very subsidiary portion consists of what prompted the authority to confirm the order passed by the State Government. The relevant portion deserves to be reproduced :
“After going through the impugned order and the comments of the State Government, it is clear that the State Government have considered various aspects of the case before rejecting the first renewal application of the petitioners. In the order itself, it has been mentioned that the applied for area comes within the area reserved for forest and mining operations in the said area would lead to heavy soil erosion. The State Government have further mentioned that the Forest Department has also objected to the renewal application of the petitioners over the area as this falls under reserved forest land. Under these circumstances of the case, we do not find any justification to interfere with the decision of the State Government.”
17. I am unable to divine any independent application of mind on the part of the Central Government in passing the order. There is not even an attempt to find out whether the area applied for consists of revene land River bed. On the other hand, there is an assumption that the area comes within the area reserved for forest and that mining operation in the said area would lead to heavy soil erosion. There is no material basis to draw an inference that removal of sand would lead to heavy soil erosion. In fact, that is not the opinion of the Inspecting Authority at all who was specially deputed to the spot for inspection and for submission of the report. I must emphasis that the Reporting Officer is no other than a Geologist with qualified knowledge. The allegations of the State Government that the Forest Department has objected to the renewal application of the petitioner on a mere assumption the area falls under the reserved forest land has not been verified at all.
18. It is further seen that even assuming that it is a reserved forest land, how the forest would be affected by the removal of sand from the River bed is not explained. There is no expert opinion on this question. I have before me a mere opinion of the Deputy Conservator of Forests not supported by any report from the DFO. Why necessary effort to obtain a report from the DFO was not made is also not explained. It may be recalled that a letter was addressed to the DFO to submit his report but ultimately no report was submitted and the Deputy Conservator of Forests has proceeded to form his own opinion without any reference to any report whatever. In these circumstances, it is not possible to sustain the order passed by the Central Government under Annexure ‘G’. I am of the opinion that the impugned order under Annexure ‘G’ is also arbitrary, ill-considered and devoid of rationale.
19. The learned Counsel for the petitioner produced before me an order issued by the Government of Karnataka under reference No. FED 79 FGL 79 dated 1st May, 1980 which is a Notification issued in exercise of the powers conferred by sub-section (1) of S. 28 of the Karnataka Forest Act, 1963 with the approval of both the houses of State Legislature directing that the lands specified in the schedule appended to the Notification cease to be reserved forest with effect from 1-5-1980. It is necessary in the light of this Notification that the respondents should consider the question whether or not the area applied for falls in the first place, within the reserved forest and in the second place, whether they are ceased to be reserved forest and thirdly, whether they are revenue land and not forest land.
20. In the light of the above discussion, the point raised is answered in the affirmative.
21. For the reasons stated above, the writ
petition is allowed and the impugned orders vide Annexures ‘G’ and ‘C’ are quashed. The respondents are directed to reconsider the application of the petitioner for grant of renewal of mining lease bearing No: M.L.N. No: 577 executed on 7-7-1964 for a further period of 20 years and dispose of the case on merits and in accordance with law within a period of 60 days from the date of receipt of a copy of this order.
22. Petition allowed.
