STATE OF KARNATAKA Vs JANTHAKAL ENTERPRISES
Bench: R.V. RAVEENDRAN,A.K. PATNAIK, , ,
Case number: C.A. No.-003293-003294 / 2011
Diary number: 33568 / 2009
Advocates: ANITHA SHENOY Vs
P. S. SUDHEER
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Reportable IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.3293-3294 OF 2011 [Arising out of SLP(C) Nos.33773-33774/2009]
State of Karnataka & Ors. .....Appellants
Versu s
Janthakal Enterprises & Anr.
....Respondents
O R D E R
Leave granted. Heard.
2. The first respondent was the holder of a mining
lease (No.593/993) for the period 6.7.1965 to
5.7.1985 under registered lease dated 6.7.1965 in
respect of an area of 80.94 hectares in Survey No.
35(Part) of Tanigehalli and Survey No.107(Part) of
Hirekandawadi villages, Holalkere Taluk, Chitradurga
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District, Karnataka. The first respondent filed an
application for renewing the mining lease, on
22.6.1984, without seeking clearance under Section 2
of the Forest (Conservation) Act, 1980. The
application for renewal was rejected on 30.9.1996.
However subsequently by two notifications dated
23.8.2007, the State Government accorded sanction for
the first renewal of the mining lease retrospectively
for a period of twenty years (from 5.7.1985 to
4.7.2005) and for the second renewal for another
period of twenty years (from 5.7.2005 to 4.7.2025)
subject to clearance under Section 2 of the Forest
(Conservation) Act, 1980 and environment clearance
under Environment Protection Act, 1986. But the said
renewals have not been granted as the first
respondent did not obtain the required clearances. In
fact, the proposals submitted by the first
respondent, for obtaining forest clearance were
returned several times for not submitting a complete
proposal. In view of it, the first respondent alleges
that mining activity has been carried on by the first
respondent in the mining lease area, after 5.7.1985.
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3. The first respondent produced before the
Director, Mines & Geology, State of Karnataka, an
alleged permission letter dated 14.2.2008 purportedly
issued by the Ministry of Environment and Forest,
(for short ‘MoEF’) Government of India, addressed to
the Principal Chief Conservator of Forests, Karnataka
according permission to the first respondent for
lifting upto one lakh Tonnes of old waste dumped in
the leased area, made up of natural soil erosions and
waste thrown by neighbouring mining lessees. On
routine verification about the genuineness of the
said communication, the MoEF informed the Secretary
(Forests), Government of Karnataka, that the said
letter dated 14.2.2008 was a fake letter and directed
the state government to initiate criminal action
against the first respondent and others responsible
for the same. The first respondent subsequently
admitted that the letter dated 14.2.2008 was not
genuine. According to the first respondent, one Irfan
Shaikh representing himself to be a clerk working at
MoEF, had represented to the first respondent that he
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would be able to get any clearance from MoEF; that
the first respondent explained its case to him; that
the said Irfan Shaikh thereafter provided the said
letter dated 14.2.2008 authorising lifting the old
waste dumps; and that believing the said letter to be
a genuine letter issued by MoEF, the first respondent
had furnished it to the Director, Department of Mines
and Geology, State of Karnataka. The first respondent
submitted that once it came to know that the letter
was a fake, it neither relied on it nor used it.
4. The first respondent filed IA Nos.2419 and 2420
of 2008 in WP (C) No.202 of 1995 (T N Godavaraman
Thirumulpad vs. Union of India) in this Court,
seeking permission to intervene and seeking direction
for grant of approval of its proposal for diversion
of 80.94 Hectares of forest land, for non-forest
mining activity under the Forests (Conservation) Act
and permission to lift 75000 MT of iron ore and 25000
MT of Manganese ore which had been previously mined
and lying in the dump area of the mine. In the said
applications, the petitioner averred as under :
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“That in the mine in question, around 75000 MT of iron ore and 25000 MT of manganese which were previously mined and stored in the dump area are lying there (material mined before 1980). The appellant prays that it may be permitted to lift the same from the dump and sell it.
The first respondent also offered to pay the NPV for
the said forest area of 80.94 Hectare, as also the
amount to be paid for carrying out compensatory
afforestation. The said applications were however
dismissed by this court, as withdrawn, on 20.3.2009.
5. The first respondent thereafter filed a writ
petition on 30.3.2009 before the Karnataka High Court
(WP No.8094/2009) seeking the following relief:
“Issue a writ of mandamus directing the respondents to permit the petitioner to lift the dumped material lying in the mining yard of ML 593/993 at Hirekandawadi & Thanigehalli village of Holalkere Taluk, Chitradurga District, by collecting the requisite fee and royalty.”
The State of Karnataka, Director of Mines and Geology
(Karnataka), Secretary, Ministry of Environment and
Forests, (Government of India), Principal Chief
Conservator of Forests, Karnataka and the Conservator
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of Forests, Chitradurga Division were arrayed as
respondents 1 to 5 in the said writ petition. The
first respondent alleged as follows in support of the
said prayer in the writ petition :
(a) The leased area under ML No.593/993
had been declared as reserved forest area
wherein mining or other non-forest activities
were prohibited without obtaining necessary
clearance.
(b) When the mining activities were carried
on by the first respondent between 1965 and
1980, there was no value for iron ore of
grades less than 62% or 63% and the excavated
material of lesser grades were dumped as waste
in the mining area. There were nine such old
dumps containing 1,17,800 metric tonnes of
waste material, in the leased area, consisting
of material extracted prior to 1985 when the
mining lease was validly in force.
(c) In view of the gradual appreciation in
value of iron ore, the said dumped material
became valuable and the first respondent
decided to dispose of the said waste. But in
spite of repeated requests, necessary
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clearances/transportation permits, were not
issued to the first respondent who was the
owner thereof, even though there was no legal
impediment for grant of such
clearances/permits.
6. The said writ petition came up for consideration
before a division bench of the High Court on
24.4.2009 for preliminary hearing. The High Court
directed issue of notice to the respondents and also
issued an ex parte interim direction to the forest
department, to furnish the following details to the
court :
(i) What was the actual quantity of dumped material available in the mining yard?
(ii)What would be the royalty, EPF, NPV which the writ petitioner was otherwise liable to pay?
(iii) What was the damage they had caused to the flora and fauna? And
(iv)What was the extent of afforestation, if the writ petitioner was liable to make it?
7. When the matter came up for preliminary hearing
on 2.7.2009, the Government Advocate handed over to
the court, a copy of the report dated 18.6.2009
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submitted by the Deputy Conservator of Forests,
Chitradurga Division to the Principal Chief
Conservator of Forests, prepared in compliance with
the order dated 24.4.2009. The said report furnished
the following information:
Q: What is the actual quantity of the available
material:
A: There are 9 old dumps in the above ML area. The
quantity of the material assessed by the Dept. of
Mines & Geology is 1,17,800 M.T.
Q: Since when it is dumped and the damages caused
thereto due to that dumping:
A: As per this office records in the above ML no
mining activities were carried out in the area since
1985. Due to dumping of the material, forest growth
and vegetation in the area and surrounding streams
are disturbed.
Q: What is the royalty, damages has to be paid by the
petitioner?
A: The royalty is to be collected by the Dept. of
Mines & Geology. Hence, the information is to be
provided by the Dept. of Mines & Geology. The
surrounding area about 12.00 Ha was damaged. As per
the Hon'ble Supreme Court of India order dated
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28/03/2008 in I.A. NO.826 in 566 with related I.As in
Writ Petition (Civil) No.202/1995 the value of the
damaged forest land is estimated at the rate of
Rs.8.03 lakhs per Ha. Hence, for 1200 Ha. the
damages in mandatory terms amounts to Rs.96.36 lakhs
(Rupees Ninety six lakhs thirty six thousand only).
Q: The amount of Net Present Value, EPF to be paid by
the petitioner
A: As per the Hon'ble Supreme Court of India
order dated 28/03/2008 in I.A. NO.826 in 566 with
related IAs in Writ Petition (Civil) No.202/1995 the
Net Present Value is to be paid by the petitioner is
as follows:
Sl.
No.
Particulars Density Extent
(in ha)
Rate of NPV (Rs. In lakhs)
Amount
(Rs in lakhs)
1 Eco-Class III Dense 80.94 8.03 649.9482
The Compensatory afforestation charges at the rate of
Rs.84,000/- per ha for 80.94 ha. amounting to
Rs.67,98,960/- (Rupees Sixty seven lakhs ninety eight
thousand nine hundred and sixty only) if the user
agency take action to transfer and mutate the 80.94
ha non-forest land in favour of the Forest
Department.
If the compensatory afforestation land is not
available and the petitioner fails to identify and
transfer non-forest land in favour of the forest
department, double the amount i.e. Rs.67,98,960 x 2
10
times = Rs.1,35,97,920/- (Rupees One crore Thirty
five lakhs Ninety seven thousand Nine hundred and
twenty only) is to be paid by the petitioner to raise
the compensatory afforestation in the forest land.
Environmental loss may be assessed by the
Environmental Department, Government of Karnataka.”
8. At the said hearing on 2.7.2009, when the matter
came up for further orders, the Government advocate
appeared for respondents 1, 2, 4 and 5. There was no
representation on behalf of the third respondent
(MoEF, Government of India). As only a short time had
elapsed after service of notice, the State and its
forest and mining departments could not file their
statement of objections. The Forest department claims
that it could not even appoint a Litigation
Conducting Officer nor furnish its parawise remarks
to the counsel for preparing the counter-affidavit,
for want of time. The High Court however allowed the
writ petition by the impugned order dated 2.7.2009,
with the following directions :
“The petitioner is permitted to remove the dumped Iron ore quantified at 1,17,800 Metric Tonnes
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lying in the mining yard (M.L.No.593/1993) situate at Hirekandawadi and Tanigehalli Villages of Holalkere taluk, Chitradurga District, subject to the following conditions :
(i) The iron ore which has already been extracted and quantified at 1,17,800 Metric Tonnes lying staked as on date, can be lifted by the petitioner upon proper notice to the Mining Authorities.
(ii) On getting such notice, the Mining Authorities shall depute a competent officer, who shall remain present at the time of such lifting.
(iii) Such lifting will take place in accordance with law and upon payment of required royalty to the State.
(iv) The lifting operation must be completed within a period of six weeks from the date of receipt of this order or production of the certified copy of the order, whichever is earlier.
(v) Petitioner shall make payment of the following amounts before lifting the dumped Iron ore:
a) Royalty : Rs. 11,04,375/-
b) Damage of forest land in monetary terms : Rs.96,36,000/-
c) Net present value, EPF for the entire area : Rs.6,49,94,820/-
d) Compensatory Afforestation charges. : Rs. 67,98,960/-
OR
Penalty on compensatory afforestation charges if the land is not available & if the petitioner fails to identify and transfer the
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non-forest land. :Rs.1,35,97,920/-
e) Any other statutory dues
vi) It is made clear that it is for the forest authorities to decide, whether Net present value as directed to be paid, is adjustable towards the approval under section 2 of the Forest (Conservation) Act.”
9. The first respondent thereafter filed an
application seeking modifications in the order dated
2.7.2009. The said application was allowed on
27.8.2009, without giving opportunity to the State or
Central Government to file their objections.
Direction (iii) and onwards in the operative portion
of the order dated 2.7.2009 were recast as follows :
“(iii) Such lifting will take place in accordance with law and upon payment of required royalty and amount ordered to be deposited by this court, necessary permission for transport for lifting the iron ore shall be issued within thirty days of depositing the royalty and amount ordered to be deposited by the petitioner by this order.
(iv) The lifting operation must be completed within a period of six months from the date of receipt of this order or production of the certified copy of the order, whichever is earlier.
(v) Petitioner shall make payment of the following amounts before lifting the dumped Iron ore:-
a) Royalty : 11,04,375/-
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b) Net present value, EPF for the entire area : 4,69,45,200/-
c) Compenatory Afforestation charges : 67,98,960/-
OR
Penalty on compensatory Afforestation charges if the Land is not available and if the petitioner fails to identify and transfer the non-forest land
: 1,35,97,920/-
d) Any other statutory dues.
vi) The petitioner shall be entitled to adjust the present amount to be paid as per the order towards amount payable as EPF for the purpose of granting permission under section 2 of the Forest (Conservation) Act”.
10. The said orders dated 2.7.2009 and 27.8.2009 are
challenged by the State Government and its
authorities in these appeals by special leave. The
appellants contended that the following incorrect
factual assumptions were made by the High Court,
while disposing of the writ petition, which are not
borne out by the record :
(a) That the material on record showed that first
respondent was not carrying on any mining activities
in Mining Lease Area No.593/993, after coming into
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force of Forest (Conservation) Act, 1980 in the
mining area;
(b) That the nine dumps of iron ore found in the
mining lease area quantified at 1,17,800 metric
tonnes had been validly extracted by the first
respondent when the mining lease was valid and was in
force (that is prior to 5.7.1985);
(c) That the respondents in the writ petition
(appellants herein) did not dispute the claim of the
first respondent that it had stopped the mining
operations and only wanted to shift the dumped iron
ore excavated prior to 1980. Therefore, the writ
petitioner (first respondent herein) was entitled to
permission to remove the 1,17,800 metric tones of
dumped iron ore from the mining lease area.
(d) The state Government and the central Government
conceded the claim of the first respondent.
11. We find considerable force in the contentions of
the appellants. Neither the State Government nor the
Central Government filed any counter nor did they
have sufficient opportunity to file any counter. Nor
did they concede any claim of the first respondent.
Apparently, the entire order was passed on the basis
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of the report dated 18.6.2009 submitted by the Dy.
Conservator of Forests, by assuming it to be an
admission on behalf of the state government. But the
report dated 18.6.2009 is only a report submitted by
the Deputy Conservator of Forests to the Principal
Chief Conservator of Forests in pursuance of an ex-
parte interim order of the High Court. Even the said
report does not state that the ore in the nine dumps
was mined prior to the Forest (Conservation) Act came
into force, but only states that there was no mining
activity in the area since 1985. The said report
does not say when the said ore was mined. In fact
that information was not sought by the High Court.
Significantly, apart from the said report of the
Deputy Conservator of Forests, there is no other
material to conclude that the material was mined
legally prior to 1980, when the lease was in force or
that the said quantity of dumped ore belongs to the
first respondent or that the first respondent is
entitled to remove or sell the said material. The
first respondent had not placed any material to show
that the said quantities of ore had been mined before
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the lease expired or that the said quantifies of ore
were lying at the site prior to 1980. No report was
also called for from the Director of Mines & Geology
which is the concerned department, or from the
central government. The four questions in the order
dated 24.4.2009, significantly do not refer to the
following important aspects :
(i) When was the said material mined/excavated?
(ii) What is the grade (percentage of ore content) in the dumped ore?
(iii) Whether the first respondent was the owner of the dumped material?
(iv) Whether there was any impediment for removing the dumped material or transporting them?
The above questions can be answered only by the
Department of Mines and Geology and not by the forest
department. Be that as it may.
12. The correctness and reliability of the report
dated 18.6.2009 of the Dy. Conservator of Forests is
itself doubtful and far from satisfactory. The
inspection and verification was not done by the Dy.
Conservator of Forests who had furnished the report.
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The Principal Chief Conservator of Forests informed
the Dy. Conservator of Forests, about the ex- parte
interim direction of the High Court, by letter dated
30.5.2009. In turn, the Deputy Conservator directed
the Assistant Conservator of Forests to give a
report. The Assistant Conservator of Forests gave a
report dated 16.6.2009 to the Dy. Conservator of
Forests which was incorporated in his report dated
18.6.2009. There was not even an affidavit supporting
or verifying the said report. The report appears to
have been prepared rather casually and in a hurry. Be
that as it may.
13. There was unexplained delay and laches in filing
the writ petition. The lease period came to an end
on 6.7.1985. The writ petition was filed twenty four
years later that is in the year 2009, seeking a
direction to the State Government and Central
Government to permit lifting of the ore by collecting
necessary fee/royalty. Except stating that the dumped
material had earlier no value, there was no
explanation why for 24 years, no action was taken by
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the first respondent either to claim ownership in
respect of the said “material” or remove the same.
There was no material to show that the said material
was of a grade of 62% to 63% or less. There was no
material to show that the first respondent had
informed the Mining Authorities or Forest authorities
or the state government about the existence of mined
ore in the mining area in nine dumps, either by way
of returns, reports or otherwise. The first
respondent had earlier produced a fake document dated
14.2.2008 wherein it was stated that the waste dumps
(of one lakh tones) was not mined material but
consisted of natural eroded soil and wastage thrown
from neighbouring mines. Though first respondent
subsequently admitted that the said letter dated
14.2.2008 was a fake, it did not aver that the
contents of the document were false and concocted.
Thus at one stage before filing the writ petition,
the first respondent claimed that what was sought to
be removed was not mined mineral, but eroded soil and
waste thrown from neighbouring mines. But in the writ
petition, the first respondent claimed that the
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material in question was low grade ore mined by it
when the lease was in force. The contradictory
stands raise doubts about the claim of the first
respondent.
14. The courts should share the legislative concern
to conserve the forests and the mineral wealth of the
country. Courts should be vigilant in issuing final
or interim orders in forest/mining/Environment
matters so that unscrupulous operators do not abuse
the process of courts to indulge in large scale
violations or rob the country of its mineral wealth
or secure orders by misrepresentation to circumvent
the procedural safeguards under the relevant
statutes. The court should also realise that Central
Government and the State Government are huge and
complex organizations and many a time require
considerable time to secure information and provide
them to court, in matters requiring enquiry,
investigation or probe. Where writ petitions
involving disputed questions of fact in regard to
forest/mining/environment matters, come up for
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consideration, courts should give sufficient time and
latitude to the concerned ministries/departments to
file their objections/counters after thoroughly
verifying the facts. If there is undue hurry, the
concerned ministries/departments will not be able to
make proper or thorough verifications and place the
correct facts. Instances are not wanting where the
public interest will be sabotaged, by the officers of
the state/central government who are supposed to
safeguard the public interest, by colluding with the
unscrupulous operators. A wrong decision in such
matters may lead to disastrous results – in regard to
public interest – financially and ecologically.
Therefore, writ petitions involving mineral wealth,
forest conservation or environmental protection
should not be disposed of without giving due
opportunity to the concerned departments to verify
the facts and file their counters/objections in
writing.
15. This case is a typical example where a writ
petition requiring decision of disputed and
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unascertained factual allegations filed on 30.3.2009
has been disposed of on 2.7.2009 without giving due
opportunity to the mining and forest departments of
the State Governments and the MoEF, to file their
counter-affidavits. When there was delay of nearly a
quarter century on the part of the writ petitioner in
approaching the court, the writ petition ought not to
have been disposed of in hardly three months, without
counter-affidavits from the concerned respondents.
Even though there were no counter affidavits, nor any
opportunity to the respondents in the writ petition
to file counter-affidavits, the High court assumed
that the State and the Central Governments had
conceded the claims of the first respondent in the
writ petition and allowed the writ petition on
2.7.2009. Again, the High Court without calling for
objections from MoEF or the state government, on an
application by the writ petitioner, amended the final
order and reduced the Net Present Value (NPV) from
Rs.6,49,94,820/- to Rs.4,69,45,200/-. Anxiety to
render speedy justice should not result in sacrifice
of the public interest.
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16. We are of the considered view that the High Court
committed a serious error in hurriedly deciding
seriously disputed questions of fact without calling
for a counter and without there being any proper
verification of the claim of the first respondent by
the authorities concerned. The order of the High
Court cannot be sustained.
17. We, accordingly, allow these appeals and set
aside the order of the High Court and dismiss the
writ petition filed before the High Court. We impose
costs of Rs.50,000/- upon the first respondent
payable to the state government.
18. The learned counsel for first respondent
submitted that this order should not come in the way
of the first respondent seeking appropriate remedy in
accordance with law. If the first respondent has any
remedy in law or cause of action for seeking any
remedy, this order will not come in the way of first
respondent seeking such remedy in accordance with
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law.
......................J. ( R.V. RAVEENDRAN )
New Delhi; ......................J. April 15, 2011. ( A.K. PATNAIK )