IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY, 2019 PRESENT THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR WRIT PETITIONS No.25212/2017 & 25733-25740/2017 (GM-MM-S) BETWEEN :
M/S RAMGAD MINERALS & MINING LIMITED CORP. OFF: BALDOTA ENCLAVE ABHERAJ BALDOTA ROAD HOSPET-583 203 REP. BY ITS AUTHORIZED SIGNATORY SRI. MEDA VENKATAIAH S/O OBAYYA AGED ABOUT 70 YEARS ... PETITIONER (BY SHRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SHRI. M.M. SWAMY, ADVOCATE) AND :
1. STATE OF KARNATAKA ADDITIONAL CHIEF SECRETARY TO GOVERNMENT FOREST, ECOLOGY & ENVIRONMENT DEPT., M.S. BUILDING, BENGALURU-560 001 2. SECRETARY TO GOVERNMENT FOREST, ECOLOGY & ENVIRONMENT DEPARTMENT M.S. BUILDING, BENGALURU-560 001 3. PRINCIPAL CHIEF CONSERVATOR OF FORESTS (HEAD OF FOREST FORCE) 4TH FLOOR, ARANYA BHAVAN 18TH CROSS, MALLESHWARAM BENGALURU-560 003 4. PRINCIPAL CHIEF CONSERVATOR OF FOREST (WILD LIFE) 2ND FLOOR, ARANYA BHAVAN 18TH CROSS, MALLESHWARAM BENGALURU-560 003 5. THE KARNATAKA WILDLIFE BOARD REPRESENTED BY ITS SECRETARY 8TH FLOOR, V.V. TOWER AMBEDKAR VEEDHI BENGALURU-560 001 6. SECRETARY TO GOVERNMENT (MINING, SSI & TEXTILES) COMMERCE AND INDUSTRIES DEPARTMENT VIKASA SOUDHA, BENGALURU-560 001 7. DIRECTOR OF MINES & GEOLOGY DEPARTMENT OF MINES & GEOLOGY 5TH FLOOR, KHANIJA BHAVAN RACE COURSE ROAD BENGALURU-560 001 8. DEPUTY COMMISSIONER GADAG DISTRICT GADAG-582 101 9. SRI. SANTOSH MARTIN S/O LATE Y.M.T. MARTIN AGED ABOUT 46 YEARS RESIDING AT NO.7, MARTIN ROAD BRUCEPET, BELLARY-583 101 10. BHARAMAPPA M. KILARI S/O MALLIKARJUN KOLARI KORAVAR AREA BEHIND DURGAGAMMAN TEMPLE DONI VILLAGE, MUNDARAGI TALUK GADAG-582 103 11. BASAVARAJ S/O MALLIKARJUN GANGAVATI AGED ABOUT 30 YEARS PRESIDENT GRAM PANCHAYAT DAMBAL, TALUK MUNDARAGI DISTRICT GADAG 12. SHARANAPPA S/O RANAPPA HOLAGANNAVAR AGED ABOUT 45 YEARS PRESIDENT GRAM PANCHAYAT DONI AT DONI, TALUK MUNDARAGI GADAG DISTRICT 13. SMT. ROSHANABI W/O MEHABUBSUBANI ALAVANDI AGED ABOUT 45 YEARS PRESIDNET GRAMPANCHAYAT KALKERI MUNDARAGI TALUK GADAG DISTRICT 14. RACHAPPA S/O SIDDAPPA GALAPPANAVAR AGED ABOUT 55 YEARS PRESIDENT GRAM FOREST COMMITTEE DONI MUNDARAGI TALUK, GADAG DISTRICT 15. KUMARIDDI S/O CHANNABASAPPA PYATI AGED ABOUT 62 YEARS MEMBER GRAM PANCHAYAT AND SECRETARY, FOREST COMMITTEE DAMBAL MUNDARAGI TALUK GADAG DISTRICT 16. RUDRANNA S/O GONEPPA GULAGULI AGED ABOUT 51 YEARS PRESIDENT KARNATAKA STATE HALUMATH SANGHA GADAG TALUK, GADAG DISTRICT 17. SIDARAMAYYA S/O PANCHAKSHRAIYYA SAUSHIMATH AGED ABOUT 55 YEARS PRESIDENT GADAG DISTRICT CHAMBER OF COMMERCE COMMITTEE GADAG TALUK, GADAG DISTRICT 18. ISHWARAPPA S/O VEERABHADRAPPA HANCHINAL AGED ABOUT 58 YEARS MUNDARAGI, MUNDARAGI TALUK GADA DISTRICT.
19. SAMAJ PARIVARTANA SAMUDAYA A SOCIETY REGISTERED UNDER THE KARNATAKA SOCIETIES REGISTRATION ACT, 1960, HAVING ITS PRINCIPAL OFFICE AT “ASHADEEP”, JAYANAGAR CROSS SAPTAPUR, DHARWAD-580 001 KARNATAKA, REP BY ITS VICE PRESIDENT DEEPAK. C.N. ... RESPONDENTS (BY SHRI. V.G. BHANU PRAKASH, AGA FOR R1-R8; SHRI. NIMISHA KUMAR, ADVOCATE FOR R9 & R10; SHRI. JAYAKUMAR S. PATIL, SENIOR ADVOCATE FOR SHRI. VARUN PATIL, ADVOCATE FOR R11 TO R18; SHRI. S. BASAVARAJ, ADVOCATE FOR R19) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT TO THE RESPONDENT STATE OF KARNATAKA TO CONSIDER AND DISPOSE OF THE PL APPLICATION DATED:2.8.2004 VIDE ANNEXUREs-D, D1 TO D3 AND ML APPLICATIONS DATED:25.5.2012 AND 30.6.2012 VIDE ANNEXUREs-G, G1 TO G4 AS PER RULES 5 AND 7 OF THE MINERALS [OTHER THAN ATOMIC AND HYDRO CARBONS ANERGY MINERALS] CONCESSION RULES, 2016 AND GRANT PROSPECTING LICENCE AND MINING LEASE RESPECTIVELY TO THE PETITIONER AND ALSO TO GRANT FOREST CLEARANCE FOR THE ALREADY GRANTED MINING LEASE AS PER ANNEXURE-H.
THESE WRIT PETITIONS, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 05.03.2019, COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE FOLLOWING:-
O R D E R M/s.Ramgad Minerals and Mining Limited (hereinafter referred to as ‘petitioner – Company’) have presented these petitions seeking inter alia a writ of certiorari and to quash Notification No.FEE 291 FWL 2015, Bengaluru dated April 11, 2017 and a direction to the State to consider its applications dated August 2, 2004, for prospecting license and applications dated May 25, 2012 and June 30, 2012 for grant of mining lease as per Rules 5 and 7 of Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016 (‘Rules’ for short) and to grant ‘prospecting license’ and ‘mining lease’.
2. Heard Shri. Ashok Haranahalli, learned Senior Advocate, Shri.Jayakumar S.Patil, learned Senior Advocate, Shri. V.G.Bhanuprakash, learned AGA and Shri.S.Basavaraj, learned Advocate for respective parties.
3. Briefly stated, the facts of the case are petitioner – Company applied to the State Government for grant of Prospecting license and Mining lease over portions of area granted under reconnaissance permit. State Government by Notifications No.CI 81 MMM 2005 and CI 83 MMM 2005 both dated February 20, 2008 granted prospecting license for gold for a period of three years over an area measuring 11.7 sq. mtrs. and 6.11 sq. mtrs. within the limits of Gadag and Mundaragi Taluk.
4. Petitioner – Company also submitted four applications for prospecting licence in August 2004. Petitioner – Company applied and received permission from the Forest Department to carry out prospecting work in the reserved forest area as per Notification dated February 20, 2008. Accordingly, petitioner – Company entered into an agreement with the Forest Department on March 21, 2009 to carry on prospecting work. State Government executed two Prospecting Licenses bearing No.3371 and 3372. In terms of the said licenses, petitioner – Company carried out detailed prospecting work such as trenching, drilling, boring and other allied works. Based on the prospecting work, petitioner-Company established availability of gold in the area. Accordingly, it submitted five applications between May and July, 2012 for grant of mining lease for gold over the parts of area covered by the prospecting license. According to the petitioner – company, State Government have recommended to the Central Government to grant mining lease over an area of 39.79 hectares in Kapathagudda Reserve Forest at Jelligeri village, Shirahatti Taluka. While petitioner’s applications were pending consideration, State Government issued a public notice for consultation to declare parts of Kapathagudda Forest as ‘Wild Life Sanctuary’. State Government by a Notification dated December 19, 2015 issued under Section 36A of Wild Life (Protection) Act, 1972 (‘the Act’ for short) declared an area of 17,872.48 hectares within Notified Reserve Forests in Gadag District as ‘Kapathagudda Conservation Reserve’. Subsequently, by Notification dated November 4, 2016 State Government withdrew its earlier Notification dated December 19, 2015.
5. State Government held a Public Consultation meeting on January 16, 2017. After following the procedure, State Government again declared 17,872.248 hectares as ‘Kapathagudda Conservation Reserve’.
6. The principal argument advanced by Shri.
Ashok Haranahalli, assailing the Notification issued under Section 36A of the Act is that, the said provision permits declaration and management of Conservation Reserve only in respect of such areas which are adjacent to National Parks, Sanctuaries and those areas which link one protected area with another. He vehemently contended that the area now notified by the impugned Notification does not satisfy the requirements of Section 36A of the Act inasmuch as it is neither adjacent to any National Park or Sanctuary nor forms a link to a protected area. He also contended:
that as per Section 2(24A) ‘protected area’ means a National park, a Sanctuary, a Conservation Reserve or a Community Reserve notified under the provisions mentioned therein;
that State Government did not have any material whatsoever to arrive at a conclusion that it was expedient to notify Kapathagudda area under Section 36A of the Act;
that the area in question is a portion of 23,929 hectares of Kapathagudda Reserve Forest. Therefore, there was no necessity to again declare a portion of Reserve Forest under Section 36A of the Act;
that State Government issued a Notification on December 19, 2015 and withdrew the same. Thereafter, the State Government have come out with a fresh Notification. Thus the manner in which this matter was dealt shows that State Government were never serious about declaring the area in question under Section 36A of the Act, but acted under pressure from vested interests and political compulsions;
that the impugned Notification describes the area as ‘ecologically and economically’ important; and ‘rich, valuable, unique and irreplaceable’ if destroyed. Thus the State Government by considering the ‘commercial’ aspect have clearly taken irrelevant material into consideration while notifying the area in question under the Act.
7. In substance Shri. Ashok Haranahalli contended that Notification under the Act is issued without application of mind inasmuch as the said area was already declared as Reserve Forest. Further, the State Government having once withdrawn a similar Notification could not have re-notified the very same area.
8. Shri. Jayakumar S. Patil, learned Senior Advocate argued that Section 36A of the Act gives ample power to the State Government to declare any area owned by the State Government as ‘Conservation reserve’. In response to the argument ‘that State Government have considered the commercial aspect’, he contended that a plain reading of the Notification shows that the State Government have taken note of the fact that the flora and fauna found in the said area was ecologically rich and valuable.
9. Shri.Bhanuprakash, learned AGA for the State arguing in support of the notification submitted that the Government withdrew the earlier Notification as a public hearing was not given. Therefore, the instant Notification has been issued after following all the procedures. It is submitted that the area in question contains valuable medicinal plants which are required to be conserved. He submitted that petitioner should have no difficulty with the impugned Notification inasmuch as he can always seek ‘No objection’ from the concerned authority. He also pointed out that petitioner has grossly violated the conditions of prospecting lease.
10. Shri.Basavaraj, learned Advocate, supporting the Notification and adverting to an article published by Shri.Kotresha Katrahalli and Shri.Sidananda Kambhar submitted that 295 species of medicinal plants are found in the area in question and they need to be conserved.
11. We have carefully considered the rival contentions and perused the records.
12. The principal argument advanced on behalf of the petitioner is that a Notification under Section 36A of the Act can be issued only in respect of areas adjacent to National parks, Sanctuaries and those areas which link one protected area with another. According to the petitioner, there is no National park or Sanctuary near the area. Similarly, there is no other protected area which needs to be connected.
Section 36A reads as follows:
“36A. Declaration and management of a conservation reserve.- (1) The State Government may, after having consultations with the local communities, declare any area owned by the Government, particularly the areas adjacent to National Parks and sanctuaries and those areas which link one protected area with another, as a conservation reserve for protecting landscapes, seascapes, flora and fauna and their habitat:
Provided that where the conservation reserve includes any land owned by the Central Government, its prior concurrence shall be obtained before making such declaration.
(2) The provisions of sub-section (2) of section 18, sub-sections (2), (3) and (4) of section 27, sections 30, 32 and clauses (b) and (c) of section 33 shall, as for as may be, apply in relation to a conservation reserve as they apply in relation to a sanctuary.”
(Emphasis supplied) A plain reading of the above provision shows that Government have power to declare ‘any area owned by the Government as a Conservation Reserve’. So far as National Parks, Sanctuaries and linking protected areas are concerned, in our view, Law makers have taken special care by using the word ‘particularly’ in the above provision of law. The word ‘particularly’ makes declaration of these areas mandatory. Therefore, we are unable to be persuaded by the argument advanced by Shri.Ashok Haranahalli, on this aspect.
13. So far as the other contention with regard to withdrawal and re-issue of Notification is concerned, we are of the view that State Government having followed the procedure by giving a public hearing and evaluating the material on record have issued the Notification in question. The Notification shows that the matter was deliberated by the State Board for Wild Life and the said Board has recommended to declare the area in question as Conservation Reserve. Further, the article titled as ‘Flora of Gadag District’ penned by Shri. Kotresha Katrahalli and another relied upon by Shri. Basavaraj also shows that there are 295 species of medicinal plants which are extensively used in traditional medicine.
14. In view of the above discussion, in our considered view, the impugned Notification dated April 11, 2017 notifying an area of 17,872.248 hectares in Gadag District as ‘Kapathagudda Conservation Reserve’ does not suffer from any legal infirmity.
Resultantly, these writ petitions fail and accordingly, they are dismissed.
No costs.
Sd/- JUDGE Sd/- JUDGE SPS