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