1

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

2

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.

3

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

4

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 :  

5

“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

6

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

7

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

8

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

9

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

11

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

12

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/-

13

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

14

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

15

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

16

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.

17

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

18

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

19

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

20

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

21

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.

22

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

23

law.

......................J.         ( R.V. RAVEENDRAN )

New Delhi;         ......................J. April 15, 2011.                 ( A.K. PATNAIK )