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2016 DIGILAW 81 (KAR)

Abimani Publications Ltd. v. State of Karnataka

2016-01-22

RAVI MALIMATH, SUBHRO KAMAL MUKHERJEE

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ORDER : These petitions are filed invoking the writ jurisdiction of this Court to quash the order dated September 2, 2015, passed by the Deputy Director, Department of Mines and Geology, Tumakuru, which has, since, been affirmed in Revision Application No.222 of 2015, dated November 2, 2015, by the Joint Director, Department of Mines and Geology, Mysuru, being Annexure-K to these writ petitions. 2. By the orders impugned, the authorities had cancelled the stone quarrying license of the petitioner No.1 on the premise that the properties situate within the minor forest area. 3. Mr. Y.H. Vijay Kumar, learned additional government advocate, strenuously, argues that unless clearance from the Central Government is obtained, there could not be any non-forest activities in the forest area. 4. We accept the contention of Mr. Y.H. Vijay Kumar that in a forest area, no non-forest activities could be undertaken without the consent of the Central Government. Nevertheless, the question involved in this case is whether the area concerned is a forest land or not. 5. Little facts are necessary to be dealt with before we adhere to the question of law. 6. The land is part of Survey No.16 of Pullasandra Village, Guluru Hobli, Tumakuru Taluk, measuring about 71 acres, 21 guntas. In the record of rights, the land was declared as pasturage, that is, gomal land. Sometime in 1994, the State Government transferred 1,31,861.61 hectares of land, being described as C and D category land, that is waste land, to the Forest Department, for formation of Land-Bank with specific condition that if the land be required for public purpose, the land could be taken back by the Revenue Department. It was, further, provided that if the forest area be released for mining, some of the lands from this Land-Bank could be released for aforestation. 7. One Mr. M.C. Ramaiah got the quarrying lease in respect of 4 acres of land in the said Survey No.16 for a period of five years for extraction of ordinary building stone. Admittedly, he carried on the quarrying operation. However, the lease has expired. 8. The petitioner No.1 before us, on August 31, 2010, applied for fresh quarrying lease in respect of 3 acres of the very same land that was leased to Mr. M.C. Ramaiah for quarrying ordinary building stone. 9. Admittedly, he carried on the quarrying operation. However, the lease has expired. 8. The petitioner No.1 before us, on August 31, 2010, applied for fresh quarrying lease in respect of 3 acres of the very same land that was leased to Mr. M.C. Ramaiah for quarrying ordinary building stone. 9. Our attention is drawn to a report submitted by the Assistant Commissioner, Tumakuru Sub-Division, Tumakuru, after conducting a joint spot inspection, with regard to grant of stone mining license in the said 3 acres of land in Survey No.16. The report is at Annexure-B to these writ petitions. He reported that the land has been full of rocks and boulders and did not have the characteristics of gomal. Therefore, it was not capable of being used for agricultural operations. He, thus, recommended for grant of quarrying lease. Nevertheless, the quarrying lease was cancelled, as aforesaid. 10. Mr. Y.H. Vijay Kumar, strenuously, argues that the area is a minor forest area and, therefore, no non-forest activities could be conducted without the concurrence of the Central Government. 11. In his endeavor to make home his point, he relies upon a notification dated March 4, 1936, issued by the Government of the Princely State of Mysore, in exercise of powers under Section 35 of the Mysore Forest Regulation (XI of 1900). 12. Before we advert to the said notification dated March 4, 1936, we refer to the provisions of Section 35 of the Mysore Forest Act, 1900 (‘Act’ for short). Section 35 of the said Act contemplates power to make rules for District Forest. It empowers the authorities to make rules in relation to any district or a portion of a district to regulate the use of forest produce or of pasturage of any land at the disposal of the government and not included in a State or Village Forest. 13. It is pertinent to note here that in the Mysore Forest Act, 1900, there is no reference to ‘Minor Forest’. Section 2(11) defines ‘State Forest’; Section 2(12) defines ‘Village Forest’ and Section 2(13) defines ‘District Forest’. There is no description of ‘Minor Forest’ in the said Act. 14. 13. It is pertinent to note here that in the Mysore Forest Act, 1900, there is no reference to ‘Minor Forest’. Section 2(11) defines ‘State Forest’; Section 2(12) defines ‘Village Forest’ and Section 2(13) defines ‘District Forest’. There is no description of ‘Minor Forest’ in the said Act. 14. We must, however, record that under Sub-Section (vii) of Section 35 of the said Act, the government had the authority to regulate or prohibit the quarrying of stone or gravel, the burning of lime or charcoal, the smelting of ore, or the boiling of catechu. 15. We invited Mr. Y.H. Vijay Kumar to show us any rule or regulation, which prohibits quarrying of stone or gravel in the said survey number. 16. Mr. Uday Holla, learned senior advocate, refers to the Rules for the Management of Minor Forests issued under the notification dated July 14, 1924. He submits that the State Government made Rules under Section 35 (iii) of the Mysore Forest Act (XI of 1990) for regulation of the use of forest produce and of the pasturage in the areas placed under special protection. 17. There was some reference to ‘Minor Forest’. Our understanding of the Rules is that it was a rule for regulation of the use of the forest produce and of the pasturage. 18. We, repeatedly, requested the State to produce any document to show that this area was even included in the forest area. There is no material on record to show that it is part of forest area. 19. Mr. Y.H. Vijay Kumar, further, draws our attention to an unreported decision of this Court in the case of The Divisional Railway Manager and others -versus- The State of Karnataka and others, in Writ Petition No.14649/2007, dated June 12, 2009. In the said decision, the State Government wanted to prohibit the railway authorities from using a portion of the said survey number for non-forest purpose. It was alleged that the railway authorities unauthorisedly established a goods terminal and wanted to lay down railway tracks illegally. The Hon’ble Single Judge held that the land covered by the said survey number was not a forest area as it was never declared as a reserve forest. The decision of the Hon’ble Single Judge was affirmed by the Division Bench by judgment and order dated January 7, 2010, in Writ Appeal No.3805 of 2009. 20. The Hon’ble Single Judge held that the land covered by the said survey number was not a forest area as it was never declared as a reserve forest. The decision of the Hon’ble Single Judge was affirmed by the Division Bench by judgment and order dated January 7, 2010, in Writ Appeal No.3805 of 2009. 20. We are informed that an application for review of such order was proved abortive. Ultimately, the Supreme Court of India dismissed the special leave petition under Article 136 of the Constitution of India. 21. We, thus, got a judicial pronouncement in relation to the said Survey No.16 that it was never declared as a forest area. 22. In such view of the matter, we set aside the order of the revisional authority which has, in its turn, affirmed the order of the Deputy Director, Mines and Geology Department, Tumakuru. 23. Therefore, there is no impediment on the part of the writ petitioners to continue with the quarrying operation for extraction of ordinary building stone as, already, lease has been granted in their favour and the order cancelling the lease has been set aside by us. 24. The writ petitions are, accordingly, disposed of. 25. There will be no order as to costs.