IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 19506/2016 (GM-MM-S) BETWEEN T. LINGERAJEGOWDA S/O THAMMAIAH GOWDA AGED ABOUT 71 YEARS R/A SURAPURA VILLAGE KUNAGALLI POST KOLLEGAL TALUK CHAMARAJANAGAR DISTRICT CHAMARAJANAGAR-571313 ... PETITIONER (BY SRI K B SHIVAKUMAR, ADVOCATE) AND 1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF COMMERCE & INDUSTRIES (MSME, TEXTILE & MINES) VIKASA SOUDHA, BANGALORE-560001 2. STATE OF KARNATAKA REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY DEPARTMENT OF FOREST, ECOLOGY & ENVIRONMENT, VIKASA SOUDHA BANGALORE-560001 3. DIRECTOR DEPARTMENT OF MINES & GEOLOGY NO.49, KHANIJA BHAVAN ROAD RACE COURSE ROAD BENGALURU-560001 4. DEPUTY COMMISSIONER CHAMARAJANAGAR DISTRICT CHAMARAJANAGAR-571313 5. SENIOR GEOLOGIST (M) DEPARTMENT OF MINES & GEOLOGY NO.4, GAGANACHUMBI DOUBLE ROAD KUVEMPUNAGAR, MYSORE-570023 6. DEPUTY CONSERVATOR OF FOREST MYSORE DIVISION, ARANYA BHAVAN ASHOKPURAM, MYSORE-570008 7. DISTRICT MONITORING COMMITTEE REPRESENTED BY ITS CHAIRMAN & DEPUTY COMMISSIONER MYSORE DISTRICT MYSORE-570008 ... RESPONDENTS (BY SRI V G BHANU PRAKASH, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN PASSING ORDER BY COMMUNICATION/LETTER DATED 02.02.2016 AND 09.02.2016 VIDE ANNEXURES-A AND B ADDRESSED BY THE DEPUTY CONSERVATOR OF FOREST TO 3RD AND 5TH RESPONDENTS AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER Heard the learned counsel appearing for the petitioner and the learned Additional Government Advocate appearing for the respondents.
2. By this petition under Article 226 of the Constitution of India essentially, the prayer of the petitioner is for grant of renewal of lease.
3. Few factual aspects will be necessary to be noted.
On 30th May 1979, a quarrying lease was granted in favour of the petitioner. In the year 1984, an application for renewal was made by the petitioner. On 18th February 1998, the State Government rejected the application for renewal on the ground that the quarrying activities would damage the agricultural operations of the neighbouring agricultural lands. That order was challenged by the petitioner by filing a writ petition in this Court. This Court directed the respondents to consider the application for renewal in accordance with law, after finding the reasons for rejection untenable. Thereafter, a representation was made by the petitioner. Even in the year 2016, one more petition was filed by the petitioner seeking a writ of mandamus directing the respondents to renew the quarrying lease.
4. The challenge, in substance, in this petition under Article 226 of the Constitution of India is to the communication dated 2nd February 2016 issued by the Deputy Conservator of Forests to the Senior Geologist. In the said letter, it is mentioned that the proposed 2 acres of land in Survey No.171 of the concerned village is a part of the area of 260 acres of land transferred to the Forest Department by the Revenue Department in the year 2009-2010. It is contended that on the said area, plantations have been grown. It is further stated that the lease sought area situated in Survey No.171 to an extent of 2 acres falls within the ambit of livestock protected trench and in the surroundings in this area, there are animals like leopard, peacock, forest pig etc. The second communication under challenge is dated 9th February 2016 issued by the Deputy Conservator of Forests to the Commissioner and Director, Department of Mines and Geology raising the same contention. Thus, in substance, the Deputy Conservator of Forests has held that the area of 2 acres forming a part of the area in respect of which renewal of lease was sought has been put to forest use and the surroundings in this area are frequented by animals.
5. The objection raised by the learned Additional Government Advocate is that for a considerable length of time and even according to the case of the petitioner, from the year 1998, there is no quarrying activity carried on in the said land and therefore, with the passage of time, the status of the land has undergone a change. He would, therefore, submit that there is no reason to raise any doubt about the correctness of the contention raised by the Deputy Conservator of Forests.
6. There cannot be any dispute that while considering an application for grant of quarrying lease or renewal of quarrying lease, if it is found that the land in respect of which quarrying lease is claimed attracts Section 2 of the Forest (Conservation) Act, 1980 (for short ‘the Forest Act’), the activity of quarrying cannot be permitted without the consent of the Central Government in accordance with Section 2 of the Forest Act. It is, therefore, obvious that in such cases, the authorities will have to apply their mind whether the leased area can be said to be a forest or a forest land within the meaning of the decision of the Apex Court in the case of T.N.GODAVARMAN THIRUMULKPAD vs UNION
OF INDIA AND OTHERS1. The reason is that if the land is a forest or forest land within the meaning of the said definition, the consent of Central Government under Section 2 will be necessary as a condition precedent for grant of permission for carrying on the quarrying operations. However, we find from the impugned communications that such enquiry has not been made by the Deputy Conservator of Forests.
7. Our attention is invited to the judgment and order of this Court dated 12th June 2019 in the case of DHANANJAY vs STATE OF KARNATAKA AND OTHERS (W.P.No.54476/2016 and connected matter).
8. Considering the fact that the decision on the application for renewal made by the petitioner is pending for a considerable length of time, this exercise will have to be completed at the earliest and depending upon the outcome of the exercise, an order will have to be made on the application for renewal of quarrying lease filed by the petitioner.
1 (1997) 2 SCC 267 9. Accordingly, we pass the following order;
(i) The impugned communications dated 2nd February 2016 and 9th February 2016 (Annexures-A and A1) are hereby quashed and set aside;
(ii) We direct the Deputy Conservator of Forests, Mysuru Division, to hold an enquiry in terms of what is held in the decision of this Court in the case of DHANANJAY (supra) and come to a conclusion whether the leased area or any part thereof is a forest or forest area within the meaning of the aforesaid decision of the Apex Court. This exercise shall be completed within a period of two months from today;
(iii) An appropriate decision shall be taken by the State Government on the application for renewal of quarrying lease made by the petitioner within one month from the date on which the report is submitted by the Deputy Conservator of Forests;
(iv) We make it clear that we have made no adjudication on the other prayers made in the petition and the same are kept open which could be agitated in the appropriate proceedings;
(v) The petition is disposed of on the above terms.
The pending interlocutory application does not survive and is accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv