Dismissed

Visveswaraiah Iron & Steel Ltd. v. Wild Life Conservation Action Team

Karnataka HC4 Dec 2023RSA/1059/2016

Case brief

AI extract

What is this about?

This regular second appeal was dismissed as the High Court found no substantial question of law. The Court held that the concurrent findings of the lower courts regarding the invalidity of the mining lease and the lack of rebuttal evidence were correct, thus upholding the permanent injunction against mining operations.

What did the court decide?

The appeal and pending applications were dismissed; the injunction restraining mining operations remains in force.

Visveswaraiah Iron & Steel Ltd. Vs Wild Life… — Environment and Pollution | Karnataka HC (2023)

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1 - NC: 2023:KHC:43584 RSA No. 1059 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.1059 OF 2016 (DEC/INJ)

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BETWEEN:

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VISVESWARAIAH IRON & STEEL LTD BHADRAVATHI-577 301 REPRESENTED BY ITS GENERAL POWER OF ATTORNEY HOLDER MR H N VENKATESH SENIOR MANAGER (LAW)

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STEEL AUTHORITY OF INDIA BY ITS CEO ISPAT BHAVAN LODHI ROAD NEW DELHI-110 003 REPRESENTED BY ITS CONSTITUTED

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Digitally signed ATTORNEY by CHAITHRA SRI.JAGMOHAN SHARMA A EXECUTIVE DIRECTOR (LAW) AND PCO

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Location: HIGH COURT OF KARNATAKA

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…APPELLANTS

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(BY SRI. SACHINDRA KARANTH K, ADVOCATE)

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AND:

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WILD LIFE CONSERVATION ACTION TEAM CHIKMAGALUR REPRESENTED BY ITS MANAGING TRUSTEE

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2 - NC: 2023:KHC:43584 RSA No. 1059 of 2016

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MR.SRIDEV HULIKERE AGED ABOUT 43 YEARS S/O H D KRISHNA WOODWAY ESTATE JAKKANALLY POST CHIKMAGALUR TALUK PIN CODE - 577130

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MR.S.GIRIJA SHANKAR S/O LATE SHANKARA NARAYANA AGED ABOUT 64 YEARS EDITOR, JANA MITHRA DAILY CHIKMAGALUR PIN CODE - 577101

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MR MANISH KUMAR S/O MR.MADANCHAND AGED ABOUT 34 YEARS COFFEE PLANTER M G ROAD CHIKMAGALUR PIN CODE - 577101

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MR M N SHADAKSHARI S/O LATE M.NANJAPPA SHETTY AGED ABOUT 69 YEARS

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PRINCIPAL OF MODEL ENGLSIH SCHOOL

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UPPALLI CHIKMAGALUR CITY PIN CODE - 577101

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MR.VESLY PINTO S/O MR.L.PINTO AGED ABOUT 57 YEARS CIVIL ENGINEER AND SURVEYOR R/O HOSAMANE EXTENSION CHIKMAGALUR CITY PIN CODE - 577 101

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MR JAAYARAMU S/O MR VENKATAMANAPPA AGED ABOUT 75 YEARS RETIRED POST MASTER R/O KEMMANNUGUNDI-577 141

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GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BENGALURU - 560 001 REPRESENTED BY ITS CHIEF SECRETARY

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THE SECRETARY DEPARTMENT OF MINES AND GEOLOGY DR.AMBEDKAR ROAD BENGALURU - 560 001

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THE SECRETARY MINISTRY OF ENVIRONMENT AND FOREST GOVERNMENT OF INDIA PARIYAVARAN BHAVAN C G O COMPLEX LODHI ROAD NEW DELHI-110 003

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THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS ARANYA BHAVAN 18TH CROSS MALLESHWARAM BENGALURU-560 003

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THE DEPUTY CONSERVATOR OF FORESTS BHADRA WILD LIFE DIVISION CHIKMAGALUR PIN CODE - 577101

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THE DEPUTY COMMISSIONER CHIKMAGALUR DISTRICT CHIKMAGALUR

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PIN CODE - 577 101

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THE TAHSILDAR TARIKERE TALUK TARIKERE-577 228

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THE TAHSILDAR CHIKMAGALUR TALUK CHIKMAGALUR-577 101

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…RESPONDENTS

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(BY MS.JAYNA KOTHARI, SENIOR COUNSEL FOR MS.APARNA MEHROTRA, ADVOCATE A/W SRI.NAVEEN CHANDRA V, ADVOCATE FOR R.1; SRI.ANUKANKSHA KALKERI, HCGP FOR R.7 TO R.14; SRI.SHIVAKUMAR S, ADVOCATE FOR R.9

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R.2 TO 6 ARE SERVED AND UNREPRESENTED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 02.03.2016 PASSED IN RA.NO.82/2012 ON THE FILE OF THE I ADDL. DISTRICT JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.07.2012 PASSED IN OS.NO.124/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC., CHIKMAGALORE AND ETC.

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5 - NC: 2023:KHC:43584 RSA No. 1059 of 2016

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is filed by defendant Nos.2 and 3 assailing concurrent judgments rendered by both the Courts in a representative suit seeking declaration to declare that suit schedule property is part of Eco-Sensitive Western Ghats, which is close to Bhadra Sanctuary and for consequential relief of injunction restraining the defendants from indulging in any kind of mining and related operations in the suit schedule properties.

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For the sake of brevity, the parties are

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referred as they are ranked before the Trial Court.

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Brief facts leading to the case are as under;

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The suit schedule properties have a rich iron ore

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and it is a part of Eco-Sensitive Western Ghats and it is part of delicate and sensitive forest. There has been active

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mining operations in the schedule properties, which has been destroying the Eco-Structure, as the schedule properties are very close to Bhadra Sanctuary. The mining activities in the schedule properties will have effect of destroying the Eco-structure, affecting the wildlife and drying up innumerable streams, which feed the Bhadra river, as it is within the catchment area. The defendant Nos.2 and 3 held mining lease over an area of 42.7 hectares, in revenue Sy. No.6 of Thingada Village, which is part of Kemmannagundi Mines. The mining lease granted under MMRD Act was for 20 years, from 1963 and it was expired during the year 1983 and it has not been renewed or no fresh lease was granted. The defendant Nos.2 and 3 allowed the illegal mining in Sy. No.39 and 40 of Kesavinamane Village. The surface mining of the iron ore has been causing disturbance to Wild Life, resulting in disastrous imbalance of environment, due to felling of trees and erosion and depletion of water sources of several streams, including Odirayanahalla and Hebbe Falls and several other streams. The schedule property is the

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part of fragile Western Ghats, which forms part of 25 bio-diversity hot spots. Even though the mining lease has expired, the mining activity continued in gross violation of the law relating to mining. In the guise of transporting Iron ore fines, illegal and clandestine mining activity is going on by digging precious ore, involving crores of rupees. On all these grounds, the plaintiffs instituted suit to declare that the schedule property is part of Eco-Sensitive Western Ghats, which is close to Bhadra Sanctuary and for permanent injunction restraining the defendants from indulging in any mining and related operations in the suit properties.

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Defendant Nos.2 and 3 on receipt of summons

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contested the suit by filing written statement. Defendant Nos.2 and 3 claimed that suit filed by plaintiffs is a frivolous suit only with a view to blackmail the contractors of defendant Nos.2 and 3, who have been mining in the suit schedule properties with a prior permission from the competent authority. The defendants have also admitted

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that lease period has expired during the year 1983 and they applied for renewal of the lease, which is pending consideration before the Government. The defendants claimed that the Government has permitted defendant No.2 to restart mining activities in area of 42.70 hectares of revenue land. On account of rejection of mining operations by the Indian Board for Wild Life, the defendants admitted that they have stopped to carry out mining activities at Kemmannugundi. However, the defendants claimed that the mining, which was already carried out during subsistence of lease period, is dumped

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in an area notified as Eco-Sensitive Zone and therefore, defendants claimed that they are entitled to transport iron ore fines by inviting tenders. On these set of defences, the defendants sought for dismissal of the suit.

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The plaintiffs to substantiate their respective

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claims have examined one witness as P.W.1 and marked 11 documents as Exs.P.1 to 11, while defendants have examined one witness, who is examined as D.W.1. The

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defendants, however, have not chosen to lead any rebuttal documentary evidence in support of their claim.

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Trial Court referring to the evidence on record

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and taking cognizance of the admissions elicited in the cross-examination of D.W.1, who has admitted in unequivocal terms that any kind of mining activities in the suit schedule properties would have a direct impact on the wild life and environment, answered issue Nos.1 and 2 in the Affirmative and against the defendants. While examining documentary evidence on record, the Trial Court was also of the view that right of the defendants to carry out mining operation expired in the year 1983. It is in this background, the Trial Court held that the defendants have not furnished/adduced any documentary evidence to substantiate that lease period is extended and permission is granted by the Competent Authority. Though defendants claimed that permission is granted by the Government to transport the iron ore fines, which was already mined during the subsistence of lease period, the

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said contention was not acceded to by the Trial Court for want of rebuttal documentary evidence. The Trial Court, while examining the evidence let in by the plaintiffs, was of the view that even transportation of the iron ore fines falls within the definition of mining operations and therefore, suit is decreed thereby declaring that suit schedule property being part of Eco-Sensitive Western Ghat and close to Bhadra Sanctuary, no mining operations can be permitted. Consequently, defendants are restrained from carrying out any mining and related operations.

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Feeling aggrieved by the judgment and decree

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of the Trial Court, defendant Nos.2 and 3 preferred an appeal before the Appellate Court.

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The Appellate Court has independently

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assessed the entire evidence on record. The Appellate Court was also of the view that though defendants claimed during trial that the Government has permitted the defendants to transport iron ore fines, no documents are

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produced to substantiate the said claim. It is in this background, the Appellate Court has concurred with the reasons and conclusions recorded by the Trial Court. Consequently, the appeal is dismissed.

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Heard learned counsel appearing for defendant Nos.2 and 3 and learned Senior Counsel appearing for the plaintiffs. Perused the concurrent findings of both the Courts.

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Though a feeble attempt is made by the learned counsel appearing for defendant Nos.2 and 3 questioning the inherent jurisdiction of the Court, this Court is not inclined to the said argument. The defendants contended that in view of commencement of the National Green Tribunal Act, 2010 (for short 'Act, 2010’), the suit is barred under Section 9 of the Civil Procedure Code as well as under Sections 14 and 29 of the ‘Act, 2010’. This contention is effectively countered by the learned Senior Counsel by referring to the very Sections, which does not

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indicate that the pending cases are also covered under the ‘Act, 2010’. She would also point out that the ‘Act, 2010’ is silent and the fact that the Civil Courts had jurisdiction to entertain the suit as on the date of filing of the suit, such a contention cannot be entertained at this juncture, that too under Section 100 of Civil Procedure Code. She has also brought to the notice of this Court that this plea is neither raised before the Court of first instance nor before the First Appellate Court. No specific grounds are taken while preferring an appeal before the Appellate Court.

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If these significant details are looked into, I am of the view that the said contention cannot be entertained at this juncture. If the Act, 2010 is silent insofar as pending cases are concerned and the fact that the Court did possess jurisdiction to entertain a suit as on the date of filing of the suit and the fact that the parties have submitted to the jurisdiction of a competent Civil Court, no indulgence is warranted at this juncture.

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Insofar as concurrent findings of the Courts

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are concerned, this Court would find that defendants having taken a specific stand that the Government has granted a permission to lift the iron ore, which is virtually already mined during subsistence of lease, defendant Nos.2 and 3 for the reasons best known to them have neither entered into the witness box nor produced any rebuttal documentary evidence to substantiate that the Iron Ore fines is lying at the suit properties, which were extracted during subsistence of the lease period. Both the Courts referring to the documents produced by the plaintiffs have concurrently held that defendant Nos.2 and 3 had no license to carry out mining operations post 1983. Referring to these significant details, both the Courts were justified in granting injunction thereby restraining defendants from lifting alleged iron ore fines, which is found to be dumped on account mining done during subsistence of mining. These concurrent findings rendered by both the Courts are based on legal evidence

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14 - NC: 2023:KHC:43584 RSA No. 1059 of 2016

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let in by the plaintiffs and in absence of rebuttal evidence

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let in by defendant Nos.2 and 3.

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Defendant Nos.2 and 3 claimed that the present suit stands vitiated on account of non-compliance of provisions of under Order 1 Rule 8 of CPC., and the said fact is rightly also dealt by both the Courts. As rightly pointed by the learned Senior Counsel appearing for defendant No.1, the present suit is filed under Section 91 of CPC., and an application was filed seeking leave of the Court to prosecute the suit. If Trial Court on examining the prima-facie materials has granted leave and if defendant Nos.2 and 3 never sought revocation of the leave granted by the Court, the mandate under the provisions of under Order 1 Rule 8 of CPC does not apply to the suit filed under Section 91 of CPC. This aspect is dealt by both the Courts. Be that as it may, defendants cannot be permitted to agitate the said point, which is dealt by both the Courts.

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15 - NC: 2023:KHC:43584 RSA No. 1059 of 2016

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No substantial question of law arises for

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consideration.

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Accordingly, the appeal is dismissed.

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Pending applications, if any, are also dismissed.

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Sd/JUDGE

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NBM

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List No.: 1 Sl No.: 5

Visveswaraiah Iron & Steel Ltd. v. Wild Life Conservation Action Team

Case brief

What is this about?

What did the court decide?

Visveswaraiah Iron & Steel Ltd. v. Wild Life Conservation Action Team

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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