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2010 DIGILAW 1083 (KAR)

Doddannavar Brothers v. State of Karnataka

2010-10-18

A.S.BOPANNA, V.G.SABHAHIT

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Judgment :- Sabhahit, J. This Writ Petition is filed under Articles 226 and 227 of the Constitution of India seeking for the following reliefs: “(i) Issue a writ of certiorari or any other writ, order or direction quashing the notice bearing No.B2/GFL/MML 2394/2009-10 dated 25.02.2010 and the notice baring No.B2/GFL/M.No.2394/2009-10 dated 16.03.2010 issued by the Deputy Conservators of Forests, the third respondent herein (Annexures ‘C’ and ‘E’). (ii) Issue a writ of prohibition or any other writ, order or direction, directing the respondents and its officials not to interfere with the mining activities carried on by the petitioner in respect of the lands/mine covered by the mining lease No.2394 dated 26.04.2003 (Annexure ‘A’). (iii) direct the respondent to pay the costs and such other and further reliefs as are just.” It is averred in the petition that the petitioner was granted mining lease over an area of 98 Acres of land of Hiremagi and Ramthal Village, Hunagund Taluk, Bagalkot District, for carrying on extraction of iron ore during the year 1960 for a period of 30 years, which expired on 01.03.1990. Before the expiry of the lease, in terms of the clause in the lease deed conferring right of renewal of the lease and in terms of the Mines and Minerals Development and Regulation Act, 1957 (hereinafter referred to as ‘the Act’) and the Rules framed thereunder, the petitioner made an application for renewal of lease in accordance with Rule 24A (6) of Mineral Concession Rules, 1960, (hereinafter called ‘the Rules’), which provides for deemed extension of the lease. Till the disposal of the application, the petitioner was continuing to carry on the mining activities. The application for renewal of lease was kept pending for a long time and ultimately, lease was renewed on 26.04.2003 for a period of 20 years with effect from 01.03.1990. The lease, which had been granted in favour of the petitioner as aforementioned was to expire on 28.02.2010. Part 8 clause 3 of the lease deed provided for renewal of the lease deed at the option of the petitioner, provided the petitioner gave notice in writing 12 calendar months prior to the date of expiry of the lease. The lease, which had been granted in favour of the petitioner as aforementioned was to expire on 28.02.2010. Part 8 clause 3 of the lease deed provided for renewal of the lease deed at the option of the petitioner, provided the petitioner gave notice in writing 12 calendar months prior to the date of expiry of the lease. On 26.04.2008, well before 12 months to the date of expiry of the lease, the petitioner submitted an application to the Director of Mines and Geology, Government of Karnataka, notifying the Government in writing of its desire to obtain renewal of the lease and submitted an application for renewal under the cover of its letter dated 26.04.2008 as per Annexure ‘B’ to the writ petition. The said letter along with the application for renewal has been received by the Director of Mines and Geology on 02.05.2008. The petitioner is entitled to renewal of the lease deed as a matter of right and course, both under the terms of the Lease Deed as well as under the Act and the Rules. It is further averred that the application of the petitioner for renewal of lease is pending consideration and the procedure for renewal of lease on the earlier occasion took over 10 years and in order to mitigate such delay in the process of renewal of mining leases, the Parliament had introduced Rule 24(A)(6) of the Rules, which automatically extended the term of lease till the application for renewal was considered and appropriate orders passed thereon by the Government. In view of the provisions of Rule 24(A)(6), the petitioner has continued the mining operations as he had filed application for renewal in time. However, the third respondent – Deputy Conservator of Forests, Bagalkot Sub-Division, Bagalkot, issued a notice dated 25.02.2010 stating that since the lease (M.L. No.2394) was to expire on 28.02.2010, the petitioner should stop all mining operations from 28.02.2010 in respect of R.S.No.116 of Ramathala and R.S.No.65 of Hiremagi in an area of 39.20 Hectares and obtained a letter from the petitioner dated 06.03.2010 stating that they had stopped all mining operations in the aforesaid mining area. The original letter issued by the third respondent dated 25.02.2010 and the letter obtained by the 3rd respondent from the petitioner dated 06.03.2010 are produced as Annexures ‘C’ and ‘D’ to the writ petition. The original letter issued by the third respondent dated 25.02.2010 and the letter obtained by the 3rd respondent from the petitioner dated 06.03.2010 are produced as Annexures ‘C’ and ‘D’ to the writ petition. Thereafter, the third respondent has issued notice dated 16.03.2010 stating that since the mining lease (M.L.No.2394) granted to the petitioner had expired on 28.02.2010 and calling upon the petitioner to hand over possession of 39.20 Hectares of land, in respect of which the said mining lease had been granted, to the Range Forest Officer, Hunagund. It is averred that the said action of the third respondent stopping the mining operations of the petitioner is wholly illegal. The petitioner represented to the third respondent and to his higher officials about the statutory rights vested in the petitioner to carry on the mining activities in view of the statutory extension of the mining lease. The third respondent promised to look into the matter and to issue appropriate orders rescinding his earlier notices, but, failed to do so and wherefore, this writ petition is filed challenging the notices issued by the third respondent on the ground that the same are contrary to the provisions of Rule 24(A)(6) of the Rules. It is contended by the petitioner that the notices issued by the respondent and the obstruction offered are not only contrary to statute, but, also to the judgments of this court. The petitioner has been carrying on mining for more than 50 years and there are nearly 15000 people, who depend upon the mining operations for their livelihood. If mining operations are stopped, grave and irreparable injury would be caused not only to the petitioner, but, to its employees and their family members and also to the general public, and over 15,000 persons would face starvation. The action of the third respondent is violative of Articles 14, 19 and 21 of the Constitution of India. 2. Notice was issued to the respondents. Respondent No.2 – Director, Department of Mines and Geology, had filed the statement of objections averring that the averment made in the writ petition that the petitioner is entitled to continue mining as per the lease granted to him since the application for renewal of mining lease was filed within time and in view of Rule 24(A)(6) of the Rules, is misconceived. It is averred that the area covered under the mining lease is a ‘Reserved Forest’ within the meaning of the Forest (Conservation) Act, 1980, comprising of Forest Sy.No.116 of Ramthal Village and Sy.No.65 of Hiremagi Village of Hungund Taluk to an extent of 39.20 Hectares (98-00-00 Acres) described in the proceedings of the Government of Karnataka in G.O.No.FEE 40 FEE 98 dated 29.09.1999 (Annexure ‘R1’ to the objections statement) followed by a letter F.No.8-159/91-FC dated 02.09.1999 from the Ministry of Environment and Forests (F.C. Division), Government of India, stating at condition No.viii that the period of permission for lease under the Forest (Conservation) Act, 1980, would be for 20 years with effect from 01.03.1990 co-terminus with the mining lease under the M.M.D.R Act. Pursuant to the same, the petitioner has executed an agreement on 30.03.2000 (Annexure ‘R2’ to the objections statement) registered in the office of the Sub-Registrar, Hungund, containing several conditions incorporated therein. Te petitioner has agreed under clause 32 of the registered agreement that the lessee shall on the termination of the lease, deliver the possession of the leased area to the Deputy Conservator of Forests, Bagalkot. In the light of the above stipulation, possession of the forest area was got surrendered from the petitioner in accordance with law. The notices issued by the third respondent are justified and the petitioner cannot claim right of mining automatically once the application for renewal is filed. It is also averred that the petitioner is not entitled to aid of Rule 24(A)(6) of the Rules in view of the Forest (Conservation) Amendment Rules, 2004, published in the Gazette of India, as per Rule 4.21, which stipulates that temporary working permission has to be obtained by the Central Government after recommendation from the State Government and therefore, the petitioner is not entitled to any relief in the writ petition and the writ petition is liable to be dismissed. 3. We have heard the learned senior counsel appearing for the petitioner and the learned Additional Government Advocate appearing for the respondents and the learned Central Government Standing Counsel appearing for respondent No.4. 4. 3. We have heard the learned senior counsel appearing for the petitioner and the learned Additional Government Advocate appearing for the respondents and the learned Central Government Standing Counsel appearing for respondent No.4. 4. The learned senior counsel appearing for the petitioner reiterated the grounds urged in the writ petition and submitted that as per the clause in the lease agreement, renewal is at the option of the petitioner and application for renewal has been submitted within 12 months from the date of expiry of lease i.e., 28.02.2010 and wherefore, the petitioner is entitled to the benefit of Rule 24(A)(6) of the Rules and no action could be taken by the third respondent contrary to the provision of the Rules. The learned senior counsel, in support of his contention, has relied upon the decision of this Court in M/s. Suggulammagudda Mining Co., Bellary vs. State of Karnataka and others (1992 (3) Kar. L.J. 590), wherein the learned single Judge of this Court has held that there is no difficulty to apply Section 2 of the Forest (Conservation) Act, 1980 and insist prior approval of the Central Government in regard to any forest land, but for Rule 24-A(6) of the Rules and by virtue of Rule 24-A(6) of the Rules, the period of lease gets extended subject to the limitations contained in the said Rule. There is no question of State Government passing an order directing to grant any lease or renewal so as to attract Section 2 of the Forest (Conservation) Act, 1980. The learned senior counsel has also relied upon the decision of the Hon’ble High Court of Judicature at Patna in State of Bihar and Two others vs. M/s. R.M.C. Dill and Co., (P) Ltd., and others (AIR 1998 Patna 20), wherein also, the same principle has been laid down. The learned senior counsel has also relied upon the decision of the Hon’ble Supreme Court in Rural Litigation and Entitlement Kendera v. State of U.P. (AIR 1998 Supreme Court 2187), wherein it has been held that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the High Court. 5. 5. The learned Additional Government Advocate appearing for the respondent reiterated the averments made in the objections statement and submitted that the lease granted to the petitioner was originally granted to the petitioner in 1960 for a period of 30 years. Thereafter, the said lease was renewed with effect from 01.03.1990 by order dated 26.04.2003 and the same has expired on 28.02.2010. As per the terms of the agreement (Annexure ‘R2’) to the objections statement) entered into by the petitioner with the third respondent, the petitioner on the termination of the lease, is bound to deliver possession of the leased area to the third respondent. Pursuant to the notice issued by the third respondent, the petitioner has stopped the mining operations as is clear from the letter addressed by the petitioner to the third respondent dated 06.03.2010. The contention of the petitioner that letter dated 06.03.2010 was obtained by force is not substantiated. Therefore, the third respondent has rightly issued the impugned notices and in view of the amendment of the Forest (Conservation) Rules, the petitioner cannot claim automatic extension of time for carrying on mining operations when its application for renewal is pending as temporary permit has to be obtained for the said purpose. 6. In reply, the learned senior counsel appearing for the petitioner submitted that the notice issued by the third respondent is illegal and without jurisdiction and the petitioner is entitled to the reliefs sought for in the writ petition. 7. We have given careful consideration to the contentions of the learned counsel appearing for the parties in the light of the principles laid down in the decisions of the Hon’ble Supreme Court cited by the learned counsel appearing for the petitioner referred to above. 8. It is clear on scrutiny of the material on record that initially, the mining lease (M.L. No.2394) was granted in favour of the petitioner for a period of 30 years and thereafter, lease has been renewed for a period of 20 years with effect from 01.03.1990 by order dated 26.04.2003. The said lease has expired on 28.02.2010. It is no doubt true that the petitioner has made an application for renewal of the mining lease. The said lease has expired on 28.02.2010. It is no doubt true that the petitioner has made an application for renewal of the mining lease. However, the letter written by the petitioner dated 06.03.2010 to the third respondent as per Annexure ‘D’ to the writ petition shows that the petitioner has admitted that the mining lease had expired on 28.02.2010 and as per the direction of the third respondent, all the mining operations have been stopped. The contention of the petitioner that the said letter is obtained by force is not at all substantiated. However, the question that arises for consideration is as to whether the petitioner is entitled to the reliefs sought for in the writ petition on the basis of the provisions of Rule 24(A)(6) of the Rules or whether the petitioner is required to obtain specific temporary permit for carrying on the mining operations when the application for renewal of mining lease is pending consideration. Rule 24(A)(6) of the Mineral Concession Rules, 1960, on which the petitioner has relied upon, reads as follows:- “If an application for renewal of a mining lease made within the time referred to in sub-rule (1) is not disposed of by the State Government before the date of expiry of the lease, the period of that lease shall be deemed to have been extended by a further period till the State Government passes order thereon.” The relevant portion of the Forest (Conservation) Amendment Rules, 2004, published in the Gazette of India, reads as follows:- “4.21 Renewal of Mining Lease – Temporary Working Permissions: In respect of renewal of mining leases, temporary working permission may be granted by the Central Government to continue working in already broken up area up to maximum period of one year, even without formal approval for the renewal, provided: (a) The user agency has submitted the required proposal with complete details to the Forest Department at least one year prior to the expiry of existing lease period. (b) The State Government has sent the formal proposal to the Central Government for renewal of mining lease prior to the expiry of the existing lease, along with particulars and reports as are required to be furnished in the normal course of renewal. (b) The State Government has sent the formal proposal to the Central Government for renewal of mining lease prior to the expiry of the existing lease, along with particulars and reports as are required to be furnished in the normal course of renewal. (c) The temporary working permission will be confined to areas already broken up prior to the expiry of the lease and no fresh area will be broken up until formal renewal is granted.” The petitioner has entered into an agreement with the third respondent on 30.03.2000 and the same has been registered with the Sub-Registrar, Hunagund, as per Annexure ‘R2’ to the objections statement on 30.03.2000. As per the said agreement, the petitioner had agreed to hand over possession of the property, in respect of which mining lease was granted, to the third respondent on termination of the lease. In view of the said registered agreement entered into by the petitioner with the third respondent – Deputy Conservator of Forests, Bagalkot, dated 30.03.2000 and as it was found that the area in respect of which, mining lease was renewed in favour of the petitioner, falls within the ‘Reserved forest area’, the petitioner was asked to stop the mining operations and in fact, the petitioner has stopped the mining operations as is clear from its letter dated 06.03.2010 (Annexure ‘D’ to the writ petition). The material on record would further show that though the petitioner on several occasions was called upon to furnish and comply the terms and conditions of the agreement executed on 30.03.2000 as well as the conditions incorporated under the letter of the Ministry of Environment and Forest dated 02.09.1999 as per various reminder letters dated 24.06.2009, 12.07.2009, 22.07.2009, 27.11.2009, 13.01.2010 and 22.01.2010 (Annexure ‘R3’ series to the objections statement), the petitioner did not comply with the conditions for extension of lease. Therefore, it is clear that no ground is made out for interfering with the notices issued by the third respondent dated 25.02.2010 and 16.03.2010 as per Annexures ‘C’ and ‘E’ to the writ petition and to prohibit the respondents and its officials not to interfere with the mining activities carried on by the petitioner in respect of the lands/mine covered by the mining lease No.2394 dated 26.04.2003 (Annexure ‘A’ to the writ petition). The decisions relied upon by the learned senior counsel appearing for the petitioner are not helpful to the petitioner in the present case having regard to the above indisputable facts of the case. Accordingly, we hold that the writ petition is devoid of merit and pass the following Order:- The Writ Petition is dismissed.