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2000 DIGILAW 825 (KAR)

Sidde Gowda v. State of Karnataka

2000-12-08

T.S.THAKUR

body2000
ORDER Tirath Singh Thakur, J.—These two petitions together constitute a second round of litigation touching upon the validity of a quarrying lease in regard to an area, which was after the grant found to be a part of the demarcated forest. The facts need be stated first to appreciate the controversy. 2. In terms of a tender notice issued in February 1997, the Director, Department of Mines and Geology invited offers for the grant of quarrying leases comprising different survey numbers of Kalagondanahalli Village in Kanakapura Taluk of Bangalore Rural District. Among others, Petitioner in Writ Petition No. 27435 of 1999 also submitted a tender for a lease of an area measuring 6 acres 20 guntas in Sy. No. 75 of the Village aforementioned and participated in public auction conducted on 21st of March, 1997. The Petitioner's case is that his bid being the highest was provisionally accepted, whereupon he deposited a sum of Rs. 24.20 lakhs with the Director-Respondent No. 2. Its further case is that grant of lease was in due course confirmed and a lease deed executed between the parties on 26th of December 1997. While doing so, the Respondents appear to have enquired from the State Forest Department whether the Survey Number in question or any part thereof was situated within the demarcated forest. In response, a report dated 20th of March 1997 submitted by the Deputy Conservator of Forests stated that Sy. No. 75 did not fall within the demarcated forest. It was only after the receipt of the said report that the lease deed mentioned earlier was executed. The Petitioner contends that having deposited the lease money, it took steps for deployment of machinery in the leased area and made other arrangements for starting the quarrying operations. These operations appear to have been obstructed by the Respondents, aggrieved whereof, the lessee filed Writ Petition No. 453 of 1998 seeking a mandamus against the Respondents directing them not to interfere with the on going quarrying work. In the objections filed by the Respondents to the said Petition, it was pointed out that the report submitted by the Deputy Conservator of Forests stating that Sy. No. 75 did not fall within Forest area was factually incorrect. In the objections filed by the Respondents to the said Petition, it was pointed out that the report submitted by the Deputy Conservator of Forests stating that Sy. No. 75 did not fall within Forest area was factually incorrect. It was further stated that the report of the Deputy Conservator was submitted on the basis of a report submitted by the Range Officer of the Kanakapura Range, which had ignored the fact that Sy. No. 75 of Kalagondanahalli stood included in Manjunatha State Forest. The Writ Petition was disposed of by my order dated 7th of February, 1998 with a direction to the Respondents to take an appropriate decision as regards the termination or continuance of the lease depending upon whether they accepted the report of the Deputy Conservator of Forests or opted to go for a further verification of the facts stated therein. This Court directed that if the Respondents eventually decide to terminate the lease, they would do so only after due and proper notice to the Petitioner stating the reasons for such termination and considering the objections that it may offer to the same. 3. Pursuant to the said directions, the Respondents appear to have undertaken a fresh joint survey on 4th of November, 1998. The said survey confirmed that the lease area was a forest. Consequently, a show-cause notice was issued on 15th of December, 1998 calling upon the lessee to explain as to why the lease granted in its favour should not be cancelled. The Petitioner submitted a reply to this notice, upon consideration whereof the Respondents have by an order dated 1st of March, 1999 cancelled the lease in question on the ground that the same related to a forest land, in regard to which no non-forest activity was permissible. Aggrieved by the said order, the lessee has filed the present Writ Petition for a certiorari and for a mandamus directing the Respondents to reconsider the matter and to seek approval under the Forest Conservation Act, 1980 for diversion of the forest land to non-forest activity or in the alternative to grant a granite quarrying lease in respect of an equivalent extent of land elsewhere. A mandamus directing the Respondents to refund the lease money deposited by the lessee with interest at rate of 24% per annum has also been prayed for. 4. A mandamus directing the Respondents to refund the lease money deposited by the lessee with interest at rate of 24% per annum has also been prayed for. 4. In Writ Petition No. 16814 of 1999, the Petitioner, who was working as Range Forest Officer of Kanakapura Range has sought a review of the order of this Court in Writ Petition No. 453 of 1998 in so far as the said order contains observations in regard to what has been described as dereliction of duty and misconduct of the Range Officer and Deputy Conservator of Forests concerned in not verifying the facts properly and in making a factually incorrect report thereby inducing the authorities to grant a lease in respect of an area, that could not have been leased out. 5. Appearing for the Petitioner in Writ Petition No. 27435 of 1999, Mr. Phanindra confined his prayer to the grant of a refund of the amount deposited by the lessee with interest and a direction to the Respondents to permit the lessee to remove the granite blocks excavated before the cancellation of the lease. It was urged by the learned Counsel that while grant of a quarrying lease in respect of forest area is not permissible in view of the provisions contained in Forest Conservation Act, 1980, yet the Petitioner-lessee had in no way contributed to the illegality attached to the same. He urged that it was for the Department of Mines and Geology and the officials of the Forest Department to properly verify the facts relating to the location of the area and to report faithfully on the same. If the State agencies had failed to perform their duties properly, the Petitioner could not be held responsible nor made to suffer financial loss, which was inevitable if the Petitioner was not granted a refund with interest besides permission to remove what had been excavated during the period the lease subsisted. 6. Mr. Ramesh, Counsel appearing for the Respondents, on the other hand urged that the grant of the lease was in the light of the verifications conducted by the Forest authorities pursuant to the directions made by this Court in the earlier Writ Petition clearly illegal being in contravention of Section 2 of the Forest Conservation Act, 1980. 6. Mr. Ramesh, Counsel appearing for the Respondents, on the other hand urged that the grant of the lease was in the light of the verifications conducted by the Forest authorities pursuant to the directions made by this Court in the earlier Writ Petition clearly illegal being in contravention of Section 2 of the Forest Conservation Act, 1980. He argued that the State had no objection to the refund of the amount deposited by the Petitioner, but any such refund need not be accompanied by the award of interest. He urged that the prayer for removal of the excavated material could also not be granted because any such removal would constitute permitting a non-forest activity in a forest area. 7. Two questions arise for consideration viz. (i) Whether the Petitioner is entitled to remove the material that was extracted by it before the termination of its lease and (ii) Whether the Petitioner is entitled to claim refund of the amount deposited by it with interest. If so, what is the rate of interest that deserves to be awarded. 8. RE. QUESTION No. 1 9. In order to correctly appreciate the rival contentions urged at the bar, it is necessary to briefly refer to the statutory provisions that have a bearing on the question argued by the learned Counsel. Section 2 of Forest (Conservation) Act, 1980 starts with a non-obstante clause and inter alia forbids the use of any forest land or a portion thereof for any non-forest purpose except with the prior approval of the Central Government. Explanation to the said provision defines "non forest purpose" to mean any purpose other than reafforestation, but excluding any work relating or ancillary to conservation, development and management of forests and wild life. Section 24 of Karnataka Forest Act, 1963 prohibits among others, quarrying of stones or removal of any forest produce and makes the violation of the said provision an offence punishable with imprisonment extending upto a period of one year. The term "forest produce" is defined by Section 2(7) of the said Act and includes among others soil, rock, minerals, laterite and all products of mines or quarries, found in or brought from a forest. The term "forest produce" is defined by Section 2(7) of the said Act and includes among others soil, rock, minerals, laterite and all products of mines or quarries, found in or brought from a forest. Rule 8(2) of Karnataka Minor Mineral Concession Rules, 1994 forbids grant of any quarrying lease in respect of any forest land subject to the condition that the State Government may after obtaining prior approval of the Central Government under the Forest (Conservation) Act, 1980 grant such a lease in favour of any undertaking owned by the Central or the State Government. 10. It is evident from a conjoint reading of the provisions referred to above that quarrying operations when carried out in a forest area is a non-forest activity, which is impermissible except with the prior approval of the Central Government in terms of Section 2 of the Forest (Conservation) Act. Grant of a quarrying lease in respect of a forest land favouring any person other than a State or Central Government undertaking is forbidden by Rule 8(2) of the Minor Mineral Concession Rules (supra). Any rock or mineral and all products of mines or quarries are under the State Act treated as 'forest produce', which cannot be removed except in accordance with the provisions of the said Act. Last but not the least is the provision contained in Rule 6(4) of the Minor Mineral Concession Rules, 1984, according to which any minor mineral extracted from a quarry and not removed by the lessee before the date of termination or determination or expiry of the quarrying lease vests in the State Government absolutely. 11. In the instant case, the joint survey conducted pursuant to the directions of this Court in the earlier Writ petition has revealed that the area proposed for the grant of a quarrying lease at the time of tender cum auction was different from the area in respect of which the lease deed was eventually executed. The area initially proposed for grant, according to the findings of the survey, fell partly in the revenue and partly in forest land, but the area in respect of which the lease was eventually granted was located entirely within the forest. The fact that the lease was granted without the prior permission of the Central Government under Section 2 of the Conservation Act, is admitted. The fact that the lease was granted without the prior permission of the Central Government under Section 2 of the Conservation Act, is admitted. More importantly, the excavation, which the Petitioner claims to have undertaken is as per the joint survey report entirely in the forest area and is partly within the area leased in its favour and partly outside the said area. The sketch prepared in the course of the joint survey conducted by the officials of the Forest Department and the Department of Mines and Geology makes this position abundantly clear. The question then is whether the excavated material should or can legally be allowed to be removed as prayed for by the Petitioner. My answer is in the negative. I say so for three distinct reasons. Firstly because the grant of the lease in respect of forest area contrary to the provisions referred to above especially those of Section 2 of the Forest (Conservation) Act was itself an illegality. Just because the Petitioner claims to have made certain investments and excavated certain material would not necessarily give rise to any equitable consideration in its favour entitling it to seek removal of excavated material. In any event, the process of removal of the excavated material would by itself tantamount to a non-forest activity within a forest area, which is clearly forbidden by Section 2 of the Central Act. It is fairly well settled that even a Court exercising writ jurisdiction is expected to keep the provisions of law in view while issuing directions especially when the validity of such provisions is not under challenge before it. It is only if directions which the Court may propose to issue do not themselves offend or run counter to specific statutory provisions that such directions may carry legal legitimacy with them. A direction for removal of the excavated material would, in the facts and circumstances amount to permitting an activity, which in its very nature is a non-forest activity, hence prohibited by Section 2 of the Central Act. 12. Secondly because, the excavation of the material sought to be removed is as per the joint survey report not from the area, which was initially proposed for grant. The excavation, which the inspection report testifies has been carried out in an area, which is partly covered by the lease and partly outside. 12. Secondly because, the excavation of the material sought to be removed is as per the joint survey report not from the area, which was initially proposed for grant. The excavation, which the inspection report testifies has been carried out in an area, which is partly covered by the lease and partly outside. There is no justification nor was any suggested by Counsel for the Petitioner for permitting the Petitioner to remove the excavated material, which was illegally quarried from an area outside the area that was demarcated in its favour. Permitting the Petitioner to remove the material illegally excavated from an area that is beyond the leased area would tantamount to placing a premium upon the illegality committed by the Petitioner. Such a course would be justified neither in law nor in equity. 13. Thirdly because, the termination of the lease granted to the Petitioner not being under challenge, the same having been given up at the Bar, Rule 6(4) of the Minor Mineral Concession Rules must have itself full play and result in the excavated material vesting in the State Government. The said provision reads thus: 6. (1) xxx xxx xxx xxx (2) xxx xxx xxx xxx (3) xxx xxx xxx xxx (4) Any minor mineral extracted from a quarry and not removed by the lessee or licensee before the date of termination or determination or expiry of the quarrying lease or licence shall be the property of the State Government. 14. The validity of the above provision has also not been challenged. It is therefore difficult to see how the Petitioner can in the teeth of what is contained therein claim the right to remove the material excavated by it. Reliance upon the decisions of the Supreme Court in TVL Sundaram Granites Vs. Imperial Granities Ltd and Others, AIR 1999 SC 3835 and Samatha Vs. State of A.P. and Others, AIR 1997 SC 3297 and that of this Court in Jayagopal's case does not in the light of what has been stated above lend any assistance to the Petitioner. The decisions of the Apex Court in TVL Sundaram Granites vs. Imperial Granites Limited and Others, JR 1999 (8) SC 201 and Samatha Vs. State of A.P. and Others, AIR 1997 SC 3297 and that of this Court in Jayagopal's case does not in the light of what has been stated above lend any assistance to the Petitioner. The decisions of the Apex Court in TVL Sundaram Granites vs. Imperial Granites Limited and Others, JR 1999 (8) SC 201 and Samatha Vs. State of A.P. and Others, AIR 1997 SC 3297 do not declare that even when the excavation of the mineral is from an area falling within a forest, the material so extracted must be allowed to be carried away no matter the excavation has taken place outside the area granted for quarrying purposes. The provisions of Rule 6(4) of the Minor Mineral Concession Rules do not appear to have been noticed by the learned Single Judge in Jayagopal's case referred to by learned Counsel for the Petitioner. The said decision is also of no assistance to the Petitioner. Question No. (1) formulated earlier is accordingly answered in the negative. 15. RE. QUESTION No. 2: 16. That brings me to the second question viz., whether the Petitioner is entitled to refund of the amount deposited by it with interest as claimed. It is true that the lease granted by the Respondents stood vitiated entirely because of failure on the part of the officials concerned to correctly verify and make a report as regards the location of the proposed leased area. There is for the present no evidence to show that the Petitioner had in any way contributed to the commission of the illegality implicit in the grant of a lease, otherwise impermissible. Refund of the amount deposited by the Petitioner cannot therefore be denied nor was it argued by Mr. Ramesh that the State could withhold the amount even when the transaction had fallen through. The contentious part was whether the refund should be accompanied by a direction for payment of interest also and if so the rate that should be awarded. There is in my opinion no reason for denying interest to the Petitioner on the amount deposited by it. The contentious part was whether the refund should be accompanied by a direction for payment of interest also and if so the rate that should be awarded. There is in my opinion no reason for denying interest to the Petitioner on the amount deposited by it. So long as the Respondents do not allege any collusion between the officers concerned, who made a factually incorrect report and so long as there is no provision permitting the State to either forfeit wholly or any part of the deposit made by the lessee, a refund is inevitable and so is award of interest on the same. That is primarily because the transaction was adversely affected by reason of the failure of the officials of the State and not any reason attributable to the Petitioner. Refund of the amount deposited by the Petitioner years after the deposit was made would not therefore meet the ends of justice. Award of interest alone can compensate the party, who is even, according to the Respondents in no way responsible for the failure of the transaction. Interest at the rate of 10% per annum from the date the deposit was made should therefore meet the ends of justice. 17. That leaves me with Writ Petition No. 16812 of 1998 filed by the Range Forest Officer seeking review of the order made in Writ Petition No. 453 of 1998. It was argued by Mr. Chidanandaiah, learned Counsel for the Petitioner that the observations made by this Court were not justified, inasmuch the report made by his client, the Petitioner, about the proposed leased area being outside the forest was on account of non-communication to the forest authorities of a change in the survey number assigned to the said area. He made a valiant attempt to persuade me to hold that the report suffered from a bonafide factual error and was not inspired by any extraneous considerations to call for any disciplinary action against him. I however see no reason to embark upon an enquiry into the correctness or otherwise of the defence set up by the Petitioner. The fresh survey of the area shows that the same was partly if not entirely within the forest area and in regard to which no lease could have been granted. I however see no reason to embark upon an enquiry into the correctness or otherwise of the defence set up by the Petitioner. The fresh survey of the area shows that the same was partly if not entirely within the forest area and in regard to which no lease could have been granted. Whether or not the error was bonafide as claimed by the Range Officer is a matter which will have to be examined by the authorities concerned, who are reported to have initiated certain proceedings pursuant to the observations made by this Court. All that I need to say is that the observations made by this Court were on the basis of a prima facie appreciation of the material that was then available to the Court and should therefore be understood in that spirit only. If upon enquiry and consideration of the material, which the Petitioner proposes to rely upon, it is found that the report was not malafide or that the official had not committed any dereliction of his duty, the observations made in the judgment of this Court would not prevent the competent authority from recording such a finding and exonerating the official. The observations should not be understood to be condemning the official concerned or pre-empting a finding upon a proper enquiry into his conduct. I may at this stage point out that the fresh survey has given yet another dimension to the controversy. The report and the sketch suggests that the area originally proposed for a lease was different from the one in respect of which the lease was eventually granted. As to how this happened is also a matter, which the Respondents may have to examine, locate responsibility and take appropriate steps to prevent recurrence of such mischiefs in future. 18. In the result, Writ Petition No. 16812 of 1998 is disposed of with the observations made above. Writ Petition No. 27485 of 1999 is allowed in part and only to the extent that the amount deposited by the Petitioner shall be refunded in its favour with interest at the rate of 10% per annum from the date of deposit. The needful shall be done within a period of 3 months from today. No costs.