Quashed

Francis Gregory D Souza v. State of Karnataka

Karnataka HC16 Jun 2020WP/50855/2019

Case brief

AI extract

What is this about?

This writ petition challenged an order suspending quarry activities based on a Lokayukta direction. The High Court held the endorsement unsustainable as the Lokayukta lacks jurisdiction to direct no quarrying and the land was not adjudicated as forest, quashing the order while reserving State rights if forest status is confirmed later.

What did the court decide?

Impugned endorsement dated 13.02.2019 is quashed; State retains rights to stop quarrying if land is adjudicated as forest; liberty granted for representation.

Francis Gregory D Souza Vs State of Karnataka — Mining and Natural Resources | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF JUNE, 2020

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PRESENT

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THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE

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AND

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THE HON’BLE MR.JUSTICE S.VISHWAJITH SHETTY

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WRIT PETITION NO.50855 OF 2019 (GM-MM-S)

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BETWEEN:

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FRANCIS GREGORY D’SOUZA S/O GREGORY D’SOUZA AGED ABOUT 61 YEARS R/AT JANTRAMANE BELMAN POST – 576 111 KARKALA TALUKA UDUPI DISTRICT

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... PETITIONER

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(BY SRI RAVINDRA GAJANAN KOLLE, ADVOCATE)

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AND:

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STATE OF KARNATAKA

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REP. BY ITS CHIEF SECRETARY

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VIDHAN SOUDHA, BENGALURU – 560 001

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THE SECRETARY TO GOVT.

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DEPT. OF COMMERCE & INDUSTRIES (MSME & MINES) VIKAS SOUDHA

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BENGALURU – 560 001

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THE DIRECTOR & COMMISSIONER DEPARTMENT OF MINES & GEOLOGY KHANIJA BHAVAN, RACE COURSE ROAD BENGALURU – 560 001

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THE SENIOR GEOLOGIST & COMPETENT AUTHORITY DEPARTMENT OF MINES & GEOLOGY

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RAJATADRI, MANIPAL – UDUPI

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UDUPI – 576 104

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THE DEPUTY COMMISSIONER & CHAIRMAN DISTRICT TASK FORCE (MINES) COMMITTEE UDUPI – 576 104

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THE DEPUTY CONSERVATOR OF FOREST KUNDAPURA DIVISION OFFICE OF THE DCF KUNDAPURA – 576 201

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... RESPONDENTS

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(BY SRI V.G.BHANUPRAKASH, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER ORDER OR DIRECTION DIRECTING TO QUASH OR SET ASIDE THE ORDER DATED 13.02.2019 PASSED BY 4^TH RESPONDENT SENIOR GEOLOGIST TO SUSPEND OR STOP QUARRY ACTIVITIES IN RESPECT OF QUARRY LEASE AT QL NO.104 TO EXTRACT ORDINARY BUILDING STONES OVER AN AREA OF 01.00 ACRE, IN GOVT. LAND AT SY.NO.116/P1 OF NANDALIKE VILLAGE IN KARKALA TALUKA, UDUPI DISTRICT PRODUCED AT ANNEXURE-A & B RESPECTIVELY AND ETC.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THROUGH VIDEO CONFERENCING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:

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ORDER

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Heard the learned counsel appearing for the petitioner and the learned Additional Government Advocate appearing for the respondents. Issue notice to the respondents. The learned Additional Government Advocate takes notice for the respondents. Considering the narrow controversy involved in the petition, the same is taken up for final disposal.

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On 6^th July 2002, a quarrying lease was granted to the petitioner in respect of the subject land under the provisions of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘the said Rules of 1994’). On 20^th January 2018, the fourth respondent issued an endorsement calling upon the petitioner to temporarily suspend the quarrying activities. The petitioner replied to the same by a reply of 21^st February 2018.

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By an endorsement dated 13^th February 2019 (Annexure-A), the fourth respondent directed that the quarrying lease granted to the petitioner is temporarily suspended until submission of clearance under the Forest Conservation Act, 1980 (for short ‘the said Act of 1980’) or till the Government decides that the said land does not fall under the purview of the deemed forest. In the endorsement, it is pointed out that the investigation has been conducted on a compliant lodged by Shri Suresh Devadiga by the learned Lokayukta and the Hon’ble Lokayukta has informed that no quarrying activity be carried out in the deemed forest area till the disposal of the issue of deemed forest which is pending before the Apex Court.

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The submission of the learned counsel appearing for the petitioner is firstly that in view of the provisions of the Karnataka Lokayukta Act, 1984 (for short ‘Lokyukta Act’), the learned Lokayukta had no jurisdiction to go into the question whether the land subject matter of the lease is a forest. He placed reliance on the judgment and order dated 12^th June 2019 passed by this Court in W.P.No.54476/2016 and other connected matter. He also relies upon a decision of the Division Bench of this Court in the case of M/s KUMARASWAMI MINERAL EXPORTS PVT. LTD. vs. STATE OF KARNATAKA BY ADDL. CHIEF SECRETARY, DEPARTMENT OF COMMERCE & INDUSTRIES AND OTHERS¹ .

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The learned Additional Government Advocate submitted that till the determination of the issue whether the land subject matter of lease or a part thereof is a forest or deemed forest, the quarrying operation should not be continued. He submitted that if the petitioner obtains a consent of the Central Government under Section 2 of the said Act of 1980, he can proceed with the quarrying operations.

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1 ILR 2015 KAR 5591

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We have carefully considered the submissions. A perusal of the endorsement dated 13^th February 2019 shows that the issue whether the land subject matter of the lease is a forest within the meaning of the said Act of 1980 has not been finally decided. Moreover, the impugned endorsement refers to a directive from the learned Lokayukta that no quarrying activities be carried out in the deemed forest area.

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The law is well settled. If on a land, forest within the meaning of Section 2 of the said Act of 1980 exists, the same cannot be used for any non-forest activity unless consent of the Central Government is obtained under Section 2 of the said Act of 1980. In fact, in the case of T.N.GODAVARMAN THIRUMULKPAD vs. UNION OF INDIA AND OTHERS² , it was held that prior approval of the Central Government is required for any non-forest activity within the area of forest.

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However, we find that there is no adjudication made by any competent authority on the question whether the land subject matter of lease is a forest or a forest land. The question of obtaining consent under Section 2 of the said Act of

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2 (1997) 2 SCC 267

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1980 will arise only if the land subject matter of lease or a part thereof is a forest or a forest land. In the present case, the impugned endorsement proceeds on a footing that the decision on the question whether the land subject matter of this petition is a forest or not is not yet taken.

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It is true that in case of a land which can be said to be a forest within the meaning of Section 2 of the said Act of 1980, non-forest activity cannot be permitted without the consent of the Government of India. So long as there is no adjudication made on the question whether the subject land is a forest which will attract applicability of Section 2 of the said Act of 1980, the fourth respondent cannot stop quarrying activity on the basis of the quarrying lease granted to the petitioner.

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The impugned endorsement refers to a direction of the learned Lokayukta that no quarrying activities is to be carried out in the alleged deemed forest area till the disposal of the issue of deemed forest pending before the Apex Court. We find that the learned Lokayukta had no jurisdiction to issue the direction which he has issued. At the highest, the powers of the Lokayukta are recommendatory in nature. Therefore, on

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the basis of the direction of the learned Lokayukta, the impugned endorsement could not have been issued. Even otherwise, the same could not have been issued.

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In the event there is an adjudication made that the land subject matter of lease is a forest land within the wider meaning given by the Apex Court in GODAVARMAN ’s case or is a forest covered by the said Act of 1980, the State Government will be well within its rights to call upon the petitioner to stop the mining activity till the consent of the Central Government under Section 2 of the said Act of 1980 is granted to the petitioner.

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Accordingly, we dispose of the petition by passing the following order:

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(i) Subject to what is observed above, the impugned endorsement dated 13^th February 2019 (Annexure-A) is hereby quashed and set aside;

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(ii) This order will be without prejudice to the rights of the State Government to decide the issue whether the land subject matter of the lease in question is a forest or a forest land;

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(iii) If ultimately the competent authority comes to the conclusion that the land subject matter of the lease is a forest land within the meaning of the said Act of 1980, the State Government will be fully justified in stopping the quarrying activity till the petitioner secures the consent of the Central Government under Section 2 of the said Act of 1980;

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(iv) We also make it clear that the observations made in this judgment and order shall not be construed to mean that the Hon’ble Lokayukta cannot conduct inquiry/investigation on the basis of the complaint received by him within the four corners of the Lokayukta Act;

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(v) As regards prayer clause (b), we grant liberty to the petitioner to make a representation to the State Government which shall be decided in accordance with law;

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(vi) Now that the endorsement at Annexure-A has been set aside, there will be no impediment in the way of the petitioner applying for grant of mineral

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dispatch permit and the concerned authority granting the same in accordance with law;

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(vii) The petition is disposed of on the above terms.

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Sd/CHIEF JUSTICE

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Sd/JUDGE

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AHB