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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION I.A. Nos. 1424-1425 of 2005

IN WRIT PETITION (CIVIL) NO. 202 OF 1995

T.N. GODAVARMAN THIRUMULPAD … PETITIONER  

VERSUS

UNION OF INDIA AND ORS.       … RESPONDENTS   

J U D G M E N T

S.ABDUL NAZEER, J.

I.A. Nos. 1424-1425 of 2005

1. Mr. Bhupesh Baghel, M.L.A., has filed I.A. Nos. 1424-1425 of

2005 in the above writ petition seeking the following reliefs:

(i) Direct the respondents 1 to3 herein to ensure that no  non-forest  activities  including  mining operations are carried out by the respondents 4 to 7  herein  in  the  forests  under  the  garb  of  lease

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executed  by  the  State  of  Chhattisgarh  or permission granted by the State of Chhattisgarh in their favour;

(ii) Direct the respondents 1 to 3 to initiate criminal prosecution of  the respondents 4 to  7 herein as also  other  officials  of  the  State  of  Chhattisgarh with  whose  connivance,  the  respondents  4  to  7 herein  have  carried  out  and/or  are  carrying  on non-forest activities in the forests;

(iii) Direct the C.B.I. to make an enquiry with regard to violation  of  the  provisions  of  the  Forest Conservation  Act  even  after  the  order  dated 12.12.1996 of this Hon'ble court by the State of Chhattisgarh  after  it  came  into  existence  on 01.11.2000  and  to  fix  the  responsibility  of  the officials who are responsible for granting lease or to permit non-forest activities in contravention of the provisions of Forest Conservation Act in forests in  the  State  of  Chhattisgarh  and  to  fix responsibility  and then to  intimate  departmental proceeding and/or their criminal prosecution;

(iv) Direct  determination  and  recovery  of compensation from respondents 4 to 7 herein for causing environmental losses by carrying on non-

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forest activities in the forest area for commercial purposes;

(v) Direct the respondents 2 & 3 to take immediate steps  for  forest  protection  and  rehabilitation  of mined area by planting sufficient number of trees and  by  taking  immediate  measures  for compensatory afforestation of the area; and

(vi) Pass  such  other  order  or  orders  as  this  Hon'ble Court  may  deem  fit  and  proper  in  the  facts  & circumstances of the case as well as in the interest of justice."

2. In  this  case  we  are  concerned  with  the  illegal  mining

activities of by Mr. Anil  Lunia (respondent No.4) in the State of

Chhattisgarh.   According  to  the  applicant,  Anil  Lunia,  an

industrialist,  on  31.10.1998  applied  for  a  mining  prospecting

license  in  Bhainsakanhar,  District  Kanker,  to  mine  iron  ore  at

Bhainsa Kankar, District North Bastar Kanker. The Government of

Chhattisgarh,  Mining  Department,  accorded prospecting  license

on an area of admeasuring 18.27 hectares vide Khasra Nos. 123,

125, 127, 129, 130 and 139 vide letter dated 25.1.2002. Written

permission was also  accorded on  29.5.2002 along with  certain

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conditions  for  the  prospecting.  A  lease  deed  was  executed  on

26.5.2003 by the Collector, North Bastar Kanker in favour of Anil

Lunia.   In this deed it  has been,  inter alia,  mentioned that the

lessee shall not cut any tree without the sanction of authorities

and  shall  not  enter  reserved  forest  or  use  forest  roads  for

transporting purpose without the written sanction of DFO.  It was

also  mentioned  that  the  lessee  has  to  allow  inspection  by

State/Central authorities at any point of time.  In the month of

June-July 2003, Anil  Lunia started mining operations but not as

per the approved plan of IBM. He did not adhere to the conditions

of  lease  and  started  cutting  trees  without  permission.  In  a

complaint  made by  one NGO,  it  was  stated  that  thousands  of

trees have been chopped off by the licensee in violation of the

Forest Conservation Act.  Conservator of Forest Kanker constituted

a 3-member inquiry team which gave its report on the basis of

which Sub-Divisional Officer issued a letter dated 18.9.2003, inter

alia, mentioned that how the notified protected forest was shown

as  non-forest  revenue  land  just  to  facilitate  the  mining  lease

without complying with the provisions of Forest Conservation Act.

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The subsequent proceedings would show how a part of the State

machinery  was  involved  in  allowing  violation  of  Forest

Conservation  Act.   The  applicant  has  also  referred  to  certain

judicial  proceedings  initiated  by  Anil  Lunia.  That  is  how  the

aforesaid applications have been filed by him seeking the said

reliefs herein.  

3.  Anil  Lunia  has  filed  his  reply  affidavit  denying  the

allegations/averments made in the application.  On the basis  of

the order of this Court, a Central Empowered Committee (for short

'CEC')  was  constituted.  The  CEC  after  examining  the  matter

during various dates of hearing and after site visit, filed its report

on 25.9.2008. It has examined at length the documents in relation

to  grant  of  mining  on  various  land  in  favour  of  Anil  Lunia  in

violation of Forest Conservation Act and has come to a conclusion

that  iron  ore  have  been  extracted  and  transported  in  blatant

violation  of  the  approved  mining  plan.  The  mining  lease  was

executed  in  violation  of  the  statutory  requirements.  The

irregularities/illegalities noted by the CEC are as under:

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i) the prospecting license was granted even through Mr. Lunia was found to be involved in illicit felling of trees in the applied area. The recommendations of the Collector,  Kanker against the grant of the prospecting license and thereafter for cancellation of  the  prospecting  license  were disregarded/ignored;

ii) iron  ore  mineral  areas  in  District  Bastar  are reserved  for  Public  Sector  Undertakings.  As  an exception, permission of the Central Government under section 5(1) of the MMRD Act for grant of prospecting license as well as for mining license in favour of Mr. Lunia were obtained on the ground that iron ore will be captively used in the crushing – screening and sponge Iron Plant being set up by Mr. Lunia.  In flagrant violation of the above, the iron ore extracted by Mr. Lunia was allowed to be sold;

iii) the  mine  till  its  closure  operated  without  the requisite  environmental  clearance.   This  is  in violation of the Environmental Impact Assessment Notification  issued  by  the  MoEF  under  the Environment (Protection) Act, 1986;

iv) as per the approved mining plan the permissible annual  production was 6000 tonnes.   As against

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this,  69,000  MT  iron  ore  was  extracted  during 2003-2004. During 2004-2005 & 2005-2006 35400 MT  &  18281  MT  of  iron  ore  respectively  were extracted.   Out  of  the  above,  99,913  MT  was transported.   At  no  stage  did  the  Mining Department object to these brazen violations;

v)  at the time the extraction from the mine had just commenced,  the  Three  Member  Enquiry Committee set up by the Forest Department held that  the  mining  lease  area  was  in  an undemarcated  protected  forest.  In  spite  of  the above, the Collector, Kanker did not put a stop to the  mining.   Instead,  after  keeping  the  matter pending  for  eight  months,  he  took  a  baffling decision that it is only after the State agrees with the proposal of the Forest Department to notify a "new  forest"  (i.e.  reserved  forest),  that  the cancellation of the mining lease will be considered;

vi) even after the Enquiry Committee constituted by the State Government held that the said area is a forest land, the mining was allowed to continue. What is more one Member of the Committee, after a gap of more than four months and out of the blue without giving any reasons, made a number

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of  adverse  observations  against  the  earlier unanimously agreed report;             

vii) no action for the cancellation of the mining lease was taken even after Mr.  Lunia was found to be involved in illicit felling in the adjoining reserved forest;

viii) the  detailed  directions  given  in  the  State Government's  circular  dated 12.1.2000 were  not adhered to.  Before grant of the mining lease the report of the Forest Department was required to be  taken  into  consideration  and  which  was  not done.  Significantly,  the  letter  signed  for  this purpose was not dispatched on the request of Mr. Lunia.   The  procedure  prescribed  for  field verification at the time of permitting mining in the area was not followed; and

ix) though in the enquiry conducted by the State, the then Collector, Kanker has been held responsible for  committing  a  number  of  illegalities  and irregularities no action has been taken against him on the ground that he has already retired.

4. The recommendations made by the CEC are as under:

a) The State  of  Chhattisgarh  should  be  directed  to recover  the entire  sale  proceeds of  the iron ore

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extracted and transported by Mr. Lunia at the then prevalent  rates.  An  equal  amount  should  be directed  to  be  deposited  by  the  State  of Chhattisgarh  as  compensation  for  its  failure  to enforce the law of the land and comply with the orders of the Hon'ble Supreme Court;

b) The iron ore confiscated by the State should be immediately sold by inviting tenders after  giving wide publicity;

c) Criminal  proceedings  should  be  initiated  against the then Collector,  Kanker for  criminal breach of trust  and  other  provisions  of  the  Indian  Panel Code;

d) Mr. Anil  Lunia should be blacklisted by the State Government and debarred for at least a period of ten  years  and  should  be  held  ineligible  for  any public office.

5. The respondent-State of Chhattisgarh has filed affidavits on

30.9.2008  which  detailed  actions  taken  by  the  State  of

Chhattisgarh  in  response  to  the  recommendations  of  the  CEC.

This was followed by a further affidavit dated 24.11.2008.

6. Pursuant to the replies filed to these affidavits, the State of

Chhattisgarh has filed another affidavit giving latest position and

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steps that have been taken pertaining to this case.  The contents

of this affidavit are as under:

i) The  State  Government  issued  a  demand  notice dated 23.9.2008 for the recovery of the entire sale proceeds of the 1,22,686.16 CMT of iron ore that was mined  and transported by Mr. Anil Lunia from Khasra  Nos.123,  125,  127,  129,  130  &  139  of village Bhaisan Kanhar, Bastar. The said demand notice required Mr. Anil Lunia to deposit a sum of Rs.6,66,75,633.75/-.  However, Mr. Anil Lunia failed to deposit said amount.  Therefore, the Collector, North Bastar, Kanker issued a Revenue Recovery Certificate (RRC) to the Collector, Durg (where Mr. Anil  Lunia  resides),  who  then  directed  the Tehsildar, Durg to register a case for the recovery of  revenue  on  11.02.2010.  The  Tehsildar,  Durg accordingly registered a revenue recovery case no. 01A/76/2009-10 against Mr. Anil Lunia and issued a  summons  dated  08.10.2010  to  him  for appearance  in  Court.   The  Tehsildar's  Court thereafter  issued a  demand note  on  29.12.2010 which was challenged by Mr. Anil Lunia by filing a civil  suit (no. 46 A/2011) in the Court of the Ld. Eighth Civil  Judge,  Class II,  Durg.  The Ld.  Eighth Civil  Judge,  Class  II,  Durg  issued  an  injunction

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order  on  04.04.2011,  and  the  case  is  currently pending before that Court.  A true translated copy of the order  dated 04.04.2011 of  the Ld.  Eighth Civil Judge, Class II, Durg is annexed and marked as Annexure RCG-1.

ii) The  Hon'ble  High  Court  of  Chhattisgarh  had passed  an  order  dated  16.12.2008  (in  W.P.  No. 6355/2005) directing the parties (i.e. the State of Chhattisgarh and Mr. Anil Lunia) to maintain status quo  with  regard  to  the  confiscation  proceedings against Mr. Anil Lunia.  The said writ petition has subsequently  been  transferred  to  this  Hon'ble Court vide order dated 24.12.2008 and has been re-numbered as Transferred Case No. 16 of 2018. The confiscated iron ore is currently lying at site and natural vegetation has grown over it.  This can be observed from the latest  photographs  of  the site,  copies  of  which  are  being  annexed  and marked as Annexure RCG-2.

iii) That,  the  State  Government  also  initiated disciplinary proceedings against certain officials of the  State  Government,  which  are  described below:- A. A disciplinary enquiry was ordered against Mr.

R.A. Pathak, the then SDO, Bhanupratappur,

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by the Forest Department of the Government of Chhattisgarh under the Chhattisgarh Civil Service  Rules,  1966.   Mr.  R.A.  Pathak  was found guilty of professional misconduct after giving  him  opportunity  of  being  heard. Accordingly,  and  pursuant  to  the recommendation  of  the  Chhattisgarh  Public Service  Commission,  the  State  Government issued an order dated 30.01.2010 pursuant to Rule 10(5)  of  the Chhattisgarh Civil  Service Rules,  1966,  penalising  Mr.  R.A.  Pathak  by fixing his pay to the minimum pay scale.

B. A  disciplinary  enquiry  was  also  ordered against  Mr.  M.  Kalyani  (the  then  Joint Collector,  Kanker),  by  the  General Administration  Department  of  the Government  of  Chhattisgarh.  Mr.  M.  Kalyani was  also  found  guilty  of  professional misconduct,  and  the  State  Government issued an order dated 09.12.2011 pursuant to Rule  12  of  the  Chhattisgarh  Civil  Service Rules,  1966,  which  penalised  him by  fixing his pay at the minimum pay scale for three years.

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C. A  disciplinary  enquiry  was  also  ordered against  Mr.  S.K.  Pandey,  the  then Assistant Mining Officer, by the Mining Department of the Government of Chhattisgarh under Rules 47 and 48 of the Chhattisgarh Civil  Service Pension Rules, 1976. Mr. S.K. Pandey however filed  a  Writ  Petition  (No.  5748/2009)  in  the Hon'ble High Court of Chhattisgarh assailing the aforesaid action of the State Government and was granted injunctive relief vide order dated 24.10.2009.

D. By an order dated 28.9.2010, Mr.  P.N.  Naik, the then Assistant Grade II,  was also found guilty  of  professional  misconduct  by  the Directorate  of  Mining  &  Geology  of  the Government  of  Chhattisgarh,  pursuant  to  a hearing  granted to  him.   Mr.  P.N.  Naik  was penalised by withholding two increments.

iv) The Department of Commerce and Industry of the Government  of  Chhattisgarh  had  blacklisted  Mr. Anil Lunia by an order dated 22.9.2008. The order of  blacklisting  continued  for  six  (6)  years  until 08.09.2014.  However, the order dated 08.09.2014 stated  that  Mr.  Anil  Lunia  could  be  blacklisted

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again in the event a Court of Law ruled against him in future.

7. Having heard learned counsel for the parties, we accept the

Report of the CEC.  From a reading of this Report of the CEC, it is

apparent that Mr. Anil Lunia had flagrantly violated the law and

had carried out mining in the forest areas.  The affidavit of the

State Government reveals that the State Government itself was

alive to  these violations  and has taken necessary  steps in  the

matter.  The State has taken action not only to stop mining but

also to initiate proceedings against the erring officials.   A bare

reading  of  the  affidavit  of  the  State  shows  that  all  mining

activities in the forest areas have been stopped long time back.  It

is  clear  that  steps have been taken to recover  the entire  sale

proceeds of the CMT of iron ore that was mined and transported

by Mr. Anil Lunia from Khasra Nos. 123, 125, 127, 129, 130 and

139 of Village Bhaisan Kanhar, Bastar.  It is also clear that State

Government  has  initiated  disciplinary  proceedings  against  its

officials who have found to be guilty of professional misconduct.

Disciplinary  enquiry  has  also  been  ordered  against  Mr.  S.K.

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Pandey,  the  then  Assistant  Mining  Officer,  by  the  Mining

Department of the Government of Chhattisgarh.  The Department

of Commerce and Industry of the Government of Chhattisgarh had

already blacklisted Mr. Anil Lunia.  It is clear from the records that

the confiscated iron ore has been mined from the adjoining forest

land.  The authorities concerned are free to auction the aforesaid

confiscated iron ore in accordance with law.  Therefore, it is not

necessary  to  direct  the  CBI  enquiry  as  prayed  for  in  the

applications.  The applications are accordingly disposed of insofar

as Anil Lunia is concerned.   

8. There shall be no order as to costs.

               …….……………………………J.   (MADAN B. LOKUR)

      …….……………………………J.   (S. ABDUL NAZEER)

…….……………………………J.  (DEEPAK GUPTA)

New Delhi; September 14, 2018.