@JUDGMENTTAG-ORDER
T. Meena Kumari, J.
W.P. No. 25910 of 2009
1. This writ petition is filed questioning the G.O.Rt. No. 723, Industries and Commerce (M. III) Department, dated 25.11.2009 issued by the Government of A.P., suspending tthe Act deals with the termination he mining operations of the petitioner-company and others basing on the proceedings of the Principal Chief Conservator of Forests, Hyderabad, dated 6.11.2009, 20.11.2009 and the letter of Sri M.K. Jiwarajka, Member Central Empowered Committee, dated 23.11.2009.
2. The case of the writ petitioner reads as follows:
The petitioner-company is engaged in the business of mining iron ore pursuant to the validly executed and registered leases in District Anantapur, State of A.P. The petitioner is having three leases over an extent of (1) 25.98 Hectares in Obulapuram Forest Compartment No. 695 (2) 39.5 Hectares in Obulapuram Forest Compartment No. 695 and (3) 68.5 Hectares in Malpangudi Forest Compartment No. 697 and 698. The petitioner-company has the approval for production of four million tons of iron ore per annum from lease No. 1; 1 million ton of iron ore per annum from Lease No. 2, and 1.2 million tons of iron ore per annum from Lease No. 3. Further, it is having all the statutory clearances including the clearance u/s 2 of the Forest (Conservation) Act, the clearance under Environment (Protection) Act and the clearance under Pollution (Control) Act and it had made all necessary applications for grant of necessary clearance under the Pollution (Control) Act and the authorities accorded necessary permissions under the said Act. The petitioner has commenced the mining operations after obtaining necessary clearance from the Pollution Control Board and is continuing the mining operations as per the norms of the Pollution Control Board. Besides the above, the Anantapur Mining Corporation, a partnership firm, owned by the promoters of the petitioner-company also holds some mining lease over an extent of 6.5 hectares in Sy. No. 1 of Obulapuram village, for production of 0.8 million tons of Iron Ore per annum. Thus, the petitioner-company produces approximately 7 million tons of Iron ore from Ananthapur District. The petitioner-company having decided to set up an integrated steel plant of 10 million tons per annum capacity at Jammalamadugu, Kadapa District in order to convert the iron ore into steel, floated a subsidiary company viz., M/s. Bramhani Industries Limited in the year 2007 and commenced the construction of Steel Plant. The petitioner-company and its promoters have already invested approximately Rs. 1500 Crores in the said Steel plant and the said plant is on the advanced stage of completion.
3. While so, the petitioner is being subjected to multifarious litigation by Mr. S.K. Modi and his company M/s. Bellary Iron Ore Pvt., Ltd., (BIOP) a neighbouring mine lease holder due to business rivalry with the petitioner. Earlier, the litigation initiated by M/s. Bellary Iron Ore Private Limited against the petitioner ended by an adverse order viz., in WA No. 1540 of 2008 vide Judgment dated 15.12.2008. In the said proceedings, BIOP filed an application seeking a direction for Survey through Survey of India. While opposing the said prayer, the petitioner herein filed a detailed reply. But this Court did not accede to the request of the BIOP for a survey. The BIOP got complaints filed before the MOEF, Government of India. On that, the Government of India issued a letter dated 22.4.2009 directing the State Government to get the lease boundaries of the applicant and the BIOP surveyed through Survey of India and in the meanwhile, directed suspension of the forest clearance granted. The State Government gave a detailed reply dated 28.4.2009 bringing to the notice of the MOEF several events which were not noticed by MOEF while issuing its letter dated 22.4.2009. On being apprised by the State Government, the MOEF issued a letter dated 1.5.2009 keeping its earlier letter dated 22.4.2009 in abeyance. Then, BIOP filed independent writ petition along with S.K. Modi, its Managing Director, in W.P. No. 201 of 2009 before the Supreme Court of India, under Article 32 of the Constitution of India seeking a direction to complete the survey in a time bound manner pursuant to the letter of MOEF dated 22.4.2009 through Survey of India. The said writ petition was disposed of on 1.5.2009 by recording the concessional statement made by the Counsel for MOEF agreeing to complete survey within six weeks.
4. Feeling aggrieved by the said order, the petitioner filed an application before the Supreme Court seeking clarification as well as for impleadment. On 23.7.2009, the learned Attorney General gave an oral assurance that the survey of India shall not proceed with survey operations until further orders. On 24.8.2009, one T. Ganesh filed an application, being I.A. No. 2 of 2009 in W.P. No. 201 of 2009 seeking to implead CEC and himself as party respondent. On that, the Supreme Court was pleased to issue notice. So far no further orders have been passed. The applicant viz., T. Ganesh was set up and financed by BIOP and that the father of the applicant filed WP No. 30880 of 2008 and brother of the applicant filed W.Ps No. 9507/2009 and WP No. 12662 of 2009 before this High Court. The CEC was made as party respondent No. 4 by the brother of T. Ganesh and the said writ petitions were before this Court. In those writ petitions, the petitioner herein filed counter-affidavits and the matter was contested. On merits, a Division Bench of this Court dismissed the writ petitions vide judgment dated 17.9.2009 on the ground that the writ petitioner has no locus standi to file the writ petitions and prosecute the same. The legal position held in the judgment is equally applicable to T. Ganesh.
5. The dispute raised by BIOP pertains to a small portion of mining lease comprising of 25.98 hectres in Obulapuram village. There exists even till date a valid common boundary Mining Agreement between BIOP and the applicant. There is no dispute with reference to any of the other lease areas of the applicant. The procedure adopted by the Central Empowered Committee appears to be an unprecedented procedure for the following reasons:
(i) The Powers and functions of the Committee as per orders of the Supreme Court in WP (Civil) No. 202 of 1995 and 171 of 1996 in terms of Notification File No. 1-1/CEC/SC/2002, dated 3.6.2002 are:
Pending interlocutory application in these writ petitions as well the reports and affidavits filed by the States in response to the orders made by the Court, shall be examined by the Committee and their recommendations will be placed before the Court for orders.
6. Any individual having any grievance against any steps taken by the Government or any other authority in purported compliance with the orders passed by this Court will be at liberty to move the Committee for seeking suitable relief. The committee may dispose of such applications in conformity with the orders passed by the Court. Any application which cannot be appropriately disposed of by the Committee may be referred by it to the Court...."
(ii) Further, Notification No. 2 No. 1-1/CEC/2002 dated 20.6.2002 provides the Rules and Procedure. The relevant portion of the said notification is extracted herein:
1. Any person shall be at liberty to move the Central Empowered Committee, hereinafter referred to as the Committee, by filing any application for seeking suitable relief against any action taken by the Central/State Governments or any other authority, regarding:
(a) Deforestation, encroachments, working of the wood based Industries, working plans, compensatory afforestation, plantations, regeneration, illegal felling and transportation of timber, illegal mining in forest area, and any other conservation issue; and
(b) the implementation of the Indian Forest Act, 1927, Wild Life (Protection) Act, 1972, Forest (Conservation) Act, 1980, Environment (Protection) Act, 1986 and the National Forest Policy, 1988 including the Rules, Regulations and Guidelines framed thereunder; in respect of which the Supreme Court has passed orders in W.P. Nos. 202/95 and 171/96.
(iii) On a plain reading of the said two notifications, it is apparent that the committee has been appointed to assist the Supreme Court and to consider applications filed by any person concerning the issues on which orders have been passed by the Supreme Court of India in W.P. Nos. 202 of 1995 and 171 of 1996.
(iv) Admittedly, the present proceedings do not arise out of the said two writ petitions nor do they pertain to the issues on which the Court passed any orders in the above-referred two writ petitions. The Supreme Court never referred W.P. No. 202 of 2009 to Forest Bench. The present dispute is purely a boundary dispute between two neighbouring mine lease holders. The issue was dealt with in detail by this Court in WA No. 1540 of 2008 vide judgment dated 15.12.2008 wherein it directed parties to approach the Civil Court for obtaining relief.
(v) Further more, while the matter is still pending before the Supreme Court, CEC, suo moto, without any direction proceeded with the matter, conducted exparte proceedings and finally submitted even a report to the Supreme Court. Till date no even a copy of the said report was furnished to the petitioner and the petitioner with great difficulty obtained from media part of the Report dated 19.11.2009. The report dated 19.11.2009 has not yet been considered by the Supreme Court but the CEC has shockingly proceeded to issue a letter dated 23.11.2009 to the Chief Secretary, Government of A.P., advising to stop all mining activities in all the mines and further stop transportation of ore already extracted. The exercise of such power by the CEC does not appear to be in sync with Constitutional scheme of separation of powers amongst various organs of the State.
(vi) The Central Empowered Committee appears to have issued a notice to State of A.P., and not to this petitioner company directing the officials to attend a Meeting on 5.10.2009 and also issued a letter to the Principal Chief Conservator of Forests, Andhra Pradesh, Hyderabad dated 13.11.2009 calling for some crucial information. The Principal Chief Conservator of Forests, Hyderabad furnished the information sought for on 17th November. It is un-understandable now a report of such volume with such information could be made ready, processed, approved by all members and was released to Media and was filed in the Supreme Court on 19.11.2009 itself. The quick succession events speak volumes. Unfortunately, the State of Andhra Pradesh is fully aware of the same.
7. The other grounds on which the report dated 19.11.2009 and consequent letter dated 23.11.2009 are susceptible are as under:
(i) to the best of knowledge of the applicant the Central Empowered Committee has never filed any report or recommendation in any matter not pertaining to Forest Bench or the I.As in the writ petition No. 202 of 1995 and W.P. No. 171 of 1996.
(ii) It was stated at the outset of the report that the report was prepared pursuant to the orders of this Court dated 24.8.2009 which is incorrect. It can be seen from the proceedings of the Court dated 24.8.2009 that this Court was pleased only to issue the notice in I.A. No. 2/2009 which was filed seeking impleadment of the Central Empowered Committee. This Court never directed the Central Empowered Committee to enquire into the matter or to submit any report thereto. In fact, after 24.8.2009 the matter was not listed before the Court and the applicant has not yet filed its counter affidavit to the said I.A. No. 2/2009 and no arguments were advanced on the issue of impleadment of Central Empowered Committee in this boundary dispute matter between two private companies.
(iii) The Central Empowered Committee having issued the notice of hearing asking the officials of the Government of A.P., as well as Counsel for the applicant in I.A. No. 2 of 2009 ought to have issued the notice to M/s Obulapuram Mining Company, the petitioner herein. The proceedings dated 5.10.2009 of CEC are without Notice and behind the back of the petitioner. No opportunity of being heard has been given to the present applicant by following the principles of natural justice. The Central Empowered Committee has not even followed the principles of natural justice and gave recommendations behind the back of the applicant which is violative of the principles of natural justice, more particularly the principle of audi alteram partam;
(iv) The Central Empowered Committee besides not giving opportunity of being heard to the present applicant also visited or inspected the site in question.
(v) The Central Empowered Committee lost sight of the statutory permissions accorded by the Director General Mines Safety, approving the common boundary mining agreement under Regulation 111(3) of The Metalliferrous Mines Regulations, 1961 dispensing with the statutory 7.5 meters buffer zone, which are still in force. Copies of the approval filed along with this application clearly establish that the report is inaccurate;
(vi) No final orders were passed in I.A. No. 2 of 2009 by this Court either impleading or rejecting to implead the Central Empowered Committee as party to the Writ Petition No. 201 of 2009.
(vii) The prayers in W.P. No. 9507 of 2009, W.P. No. 12662/2009 as well as prayer of T. Ganesh before this Court in I.A. No. 2/2009 are one and the same. In view of the dismissal of the said writ petition by the common order dated 16.9.2009 by the High Court of A.P., in which Central Empowered Committee is also a Respondent, in all fairness, the Central Empowered Committee ought to have restrained itself from making present report at the instance of T. Ganesh since the High Court of A.P. held that the Brother of T. Ganesh who took similar plea which stand on the same footing was held to be not having locus standi to prosecute and make the same prayer. The Central Empowered Committee ought to have referred to the said proceedings and the outcome of the same in the present report.
(viii) The Forest (Conservation) Act, 1980 does not deal with the complaints such as boundary disputes between or among lessees in a Forest area. The Forest (Conservation) Act, 1980 also does not deal with the disputes relating to village boundaries. The Forest Conservation Act also does not deal with the complaints relating to overlapping. In fact, there is no complaint by M/s Obulapuram Mining Company or M/s YM & Sons to the State Government complaining about the over lapping of their areas. The aspect of overlapping was detected only during the common survey on fixation of the lease boundaries of all five leases and for the purpose of preparation of the common sketch depicting all the five leases.
(ix) The lease areas of five user agencies were granted at different points of time and were renewed at different points of time by drawing independent lease sketches to each of the lessee without reference to the lease boundaries of the adjoining lessees. This was done long time back i.e., few decades ago. There was no requirement under MMDR Act to have a combined sketch duly depicting the leases of the neighbouring lessees and all four sides. Accordingly, independent lease sketches were drawn and the lessees were enjoying their areas.
(x) The common boundary mining agreement among the lessees and the approval for the same by the competent authority demolish the allegation that there existed an un-allotted area among the lessees.
(xi) The Forest (Conservation) Act, 1980 does not deal with any individual complaints or any individuals or lessees or any violations by any user agency. The Forest (Conservation) Act, 1980 mandates that no State without the prior approval of the Central Government pass any order diverting any forest land for non forest purposes.
(xii) This does not cover the cases or complaint relating to encroachment by the lessees into the neighbouring forest areas i.e., beyond the leasehold area and mining in the forest area. These encroachments are covered under the Indian Forest Act and the Provisions of Indian Forest Act alone shall apply as confirmed by Government of India in their Notification dated 7.12.1999.
(xiii) The edifice on which the Central Empowered Committee proceeded with as if M/s Obulapuram Mining Company, the present applicant has committed certain violations of the provisions of the Forest (Conservation) Act, 1980 and this Court directed Central Empowered Committee to enquire and submit a report vide its order dated 24.8.2009 itself is wrong and incorrect. Therefore, the report is void ab-initio void and without jurisdiction besides being in violation of the principles of natural justice, since being an exparte report given without hearing the affected parties.
(xiv) The Central Empowered Committee has pre conceived that there are some violations by this applicant, violating provisions of the Forest (Conservation) Act, 1980 under mistaken impression that mining was done by the lessee beyond its leased area and in an un-allotted forest area. Assuming without admitting that even if the allegation is taken on its face value the violation does not come under the purview of Forest Conservation Act, 1980. The offences relating to encroachment in the Forest Area comes under the purview of provisions of Indian Forest Act and the consequences such as consequent penalty for the same are different from the offences under the purview of the Forest (Conservation) Act, 1980. That in this regard the notification issued by the Government of India being notification dated 7.12.1999 clearly clarifies.
8. The CEC report dated 19.11.2009 has been publicized in the media but not provided to the applicant. Since the applicant has not been provided even with a copy of the CEC report dated 19.11.2009 the applicant reserves right to file a detailed objections to the said report on being provided with a copy of the same. The CEC without either issuing notice to the affected parties or hearing them appears to have pointed out certain defects and inconsistencies in the report of the Government of A.P., dated 28.4.2009 in its report and seems to have arrived at its own conclusion on the basis of incomplete material.
9. Further, the scope of W.P. No. 202/2009 itself was to fix a time frame for the survey to be conducted through Survey of India. The petitioner filed I.A. No. 1 of 2009 opposing the said prayer in view of the complicity between BIOP and the Survey of India. The CEC has not considered any of the material placed before this Court nor considered the binding judgments dated 15.12.2008, 17.9.2009 between the parties of A.P. High Court wherein the prayer for survey through Survey of India was not acceded to in view of the objections raised by the applicant. Besides the report of CEC insofar it relates to survey is violative of the oral order and oral undertaking by the Learned Attorney General dated 23.7.2009 before the Supreme Court. No time frame has been fixed for the said survey and the mining operation in all mining lease areas are required to be stopped without any justification.
10. It is further stated that there are thousands of employees directly/indirectly employed with the applicant in its activities on a daily basis. Sudden and abrupt suspension of its operation both mining and transporting of the iron ore would cause great irreparable loss to all those dependant on the applicants mining activities. Every day about 1000 trucks transport the material and about 4000 people depend on such transport industry alone and all the trucks would be stranded and cause great loss to all the concerned.
11. It is also submitted that the entire income arising from the mine is reinvested for setting up Brahmani Steel Plaint at Jammalamadugu in Dr. Y.S. Rajashekar Reddy, Kadapa District of A.P. and already about 1500 Crores of promoters money has been invested in the steel plant. The steel plant project shall also be jeoparadized if the revenue arising from the mines are abruptly stopped and thereby cause paucity of funds for the Steel plant, which is at a very advanced stage. The entire source of finance for the steel plant is only from the income arising from the petitioner''s mines.
12. While so, the Government of A.P., issued the impugned G.O., stating that the Principal Chief Conservator of Forests has constituted a Three Member Committee and submitted its report on 20.11.2009, which revealed certain inconsistencies on the location of inter village boundary between Obulapuram and H. Siddapuram villages undertaken by State High Level Committee under the Chairmanship of Chief Conservator of Forests, Ananthapur. Further, the CEC advised to the Supreme Court to take immediate steps to stop mining operations, including the transportation of already mined material in respect of six mines dealt with in Central Empowered Committee''s report.
13. Insofar as the leases pertaining to 39.5 hectares and Ananthapur Mining company as well as the leases relating to Malpangudi are concerned, the village boundary has no relevance, since they are away from the village boundary, but still the Government of A.P. choose to suspend the mining operations on the ground that the same committee complained about the alignment of the village boundary.
14. Insofar as the dispute relating to M/s. Bellary Iron Ores Private Limited and the writ petitioner is concerned, the Government of A.P., has already taken categorical stand in writing by submitting the compliance report as well as by issuing the memo dated 15.7.2009, which found part of the records of the Supreme Court in W.P. No. 201 of 2009 and it is estopped from taking any stand contrary to the same. Therefore, the suspension of mining operations is illegal.
15. Further the village boundary between Obulapuram and H. Siddapuram villages was relaid by the A.P. State High Level Committee at the instance of BIOP and the entire record from part of W.P. No. 645 of 2008 and W.A. No. 1540 of 2008 in which the Division Bench of this Court was pleased to consider the same and against which, BIOP has not filed any SLP. Therefore, the State Government having got conducted the survey for about three months by the State High Level Committee with latest survey equipments and experts in survey, cannot rely upon the inspection report of the Three-Member Committee in which there is no expert in survey to which survey and land records or Mines and Geology Department are not parties.
16. Being the lessee, the petitioner-company was not informed of about the constitution of three member committee, the scope and the purpose for which the committee desire to inspect and deal with and finally even the purported report of the Three Member Committee has not seen the light of the day till date. The action of the Government A.P., in stopping the transportation from the stock yard of the petitioner company situated Obulapuram village is illegal.
Additional Affidavit
17. The facts stated in the additional affidavit in brief are as follows:
In pursuance of the letter addressed by the Assistant Director, Mines and Geology, dated 26.11.2009, M/s. Krishnapatnam Port Company Limited stopped all the incoming vehicles of the petitioner-company into the stockyards in the limits of the Port Company Limited though the material was dispatched prior to 25.11.2009 and the lorries were in transit and also stopped loading of a ship scheduled to take 60,000 tons having loaded upto 40,000 tons of iron ore. In addition to stoppage of loading, the Port company instructed not to move the ship out of the berth. The contract was signed prior to 25.11.2009 and the material was dispatched prior to 25.11.2009 and there is absolutely no justification in detaining or keeping in incaptivity of the said ship, which is carrying the material belong to one M/s. Hari Hant Tiles and Marbles Private Limited, which purchased the same from the petitioner-company. Similar instructions to stop the transportation, loading, movement of trucks and ships were issued to Vizag Port as well as Kakinada Port. The petitioner furnished details of stock position and the written statements or long terms contracts with the domestic steel plants as well as the exports.
18. There are certain iron ore stocks originating from the writ petitioner-company, but sold to various buyers long back i.e., much before 25.11.2009, dispatched in their favour having received the full sale consideration, and the buyers for the purpose of shipping the material, kept the material temporarily in the stockyard, Krishnapatnam port and that the material lying in Krishnapatnam Port does not belong to the petitioner-company and therefore, there is no justification in prohibiting shipment of the material.
19. The Government of A.P., after following the entire procedure, as contemplated under Mines and Minerals (Development and Regulation) Act, the Forest (Conservation) Act and the other Acts, has granted the mining leases in favour of the writ petitioner company and thus, the writ petitioner-company is a holder of statutory leases granted under the statute. It is the State Government which fixed the boundaries of the leases and it is the State Government which delivered the possession of leasehold areas. In this regard, letter of State Government dated 17.3.2009, 22.4.2009, 28.4.2009, 27.6.2009, 15.7.2009, are relevant. The Statute contemplates that any prohibition of work at the instance of the State Government shall be after giving the parties an opportunity to represent their views and with the approval of the Central Government and that even the prohibition, as contemplated under Rule 50 of the Mineral Concession Rules, is limited only for mining and in no event the State Government can prohibit the lessee who paid the royalty and obtained the geological permits. The impugned G.O.Rt. No. 723, dated 25.11.2009 suffers from lack of application of mind by the State Government and in view of the judgment of the Supreme Court in Mohinder Sing Gill''s case, the State Government cannot supplement the reasons or attempt to improve their case with supplement reasons at this stage. The petitioner-company is being subjected to grave hardship and irreparable injury and that the operations of the entire Industry were suspended arbitrarily.
20. Respondents 1 and 2 filed a counter-affidavit inter alia denying all the averments made by the petitioner and contending as follows:
The Government of A.P. granted the Mining leases in Obulapuram, H. Siddapuram and Malapanagudi village of Anantapur District and they are partly covered in the Bellary Reserve Forest in the name of the following lessee:
1. M/s. Bellary Iron Ore Pvt., Limited.
2. Ms/ Y. Mahabaleswarappa & Sons.
3. M/s Obulapuram Mining Company Pvt., Ltd.,
4. M/s. Anantapur Mining Corporation.
5. M/s Obulapuram Mining Company Pvt. Ltd.
6. M/s. Obulapuram Mining Company Pvt. Ltd.
Initially, in the year 2008, basing on a complaint given by the BIOP, the State Government had appointed a High Level Committee comprising Forest Department, Survey Land Records Department and Mines Department to survey the boundary between Obulapuram and H. Siddapuram. The survey had commenced on 29.1.2008 and an interim report was submitted on 7.2.2008 and the committee further proceeded to the field on 18.2.2008 and submitted final report on 17.3.2008. The Committee Surveyed and demarcated the boundary line between the two lease areas of BIOP and Obulapuram Mining Company Pvt., Ltd., which is also a common boundary between the villages of Obulapuram and H. Siddapuram villages. Subsequently, after almost about a year, the Divisional Forest Officer, Anantapur had inspected the Mining Lease areas between 25.9.2009 and 8.10.2009 and found that Obulapuram Mining Company has encroached into the Siddapuram Village boundary over a width of 50 Mts., and 100 M. Length and 30 Mts. Depth and hence, he issued a show cause notice to the petitioner-company for violation of boundary demarcation. At the same time, several news items in the press had been published and certain public representations about the illegal mining operation and transportation of Iron ore from the Obulapuram sector had been made to the authorities. The Government of A.P., on 6.11.2009 constituted a Forest departmental Committee comprising Special Principal Chief Conservator of Forest and two additional Principal Chief Conservators of Forest to enquire into the allegations of irregularities in mining operations of iron ore in Obulapuram Sectors. Accordingly, the said Committee enquired into the allegations and submitted its report to the Government on 20.11.2009. In the said report, the Committee pointed out various irregularities such as:
(a) Non-erection of concrete boundary pillars with an interval of 20 Mts., all along the boundary lines;
(b) Using of Reserve Forest for non-forest purposes such as for laying of roads without prior permission.
(c) Laying of roads for transporting the mineral from mining lease areas on either side of the two States of A.P. and Karnataka without prior permission from the Government of India.
(d) Shifting of boundary pillars which resulted in increasing their mining lease areas.
(e) Fixing of temporary pole pillars with flags.
(f) Using Forest area for dumping without permission from Government of India.
(g) Excess transportation of iron ore without there being corresponding and proper mining pits in the leased areas, thereby leading to a doubt as to the origin of the mineral that was stated to have been dispatched.
(h) Non-implementation of reclamation plan for prevention and control of soil erosion and management of silt.
(i) Non-compilation of Environmental conditions stipulated by Government of India.
21. While so, the Central Empowered Committee constituted by the Supreme Court in W.P.(Civil) No. 202/95 and 171/96, vide letter dated 23.11.2009, while forwarding a copy of its report to the Supreme Court, advised the State Government to take immediate steps to stop mining operations including transportation of already mined mineral from all the six mines dealt in the CEC report. After considering the recommendations made by the CEC read with recommendations of the Three Member Committee of the Forest, the State Government issued G.O.Rt. No. 723, dated 25.11.2009, suspending the mining operations of all the six leases including the respondent companies as an interim measure, since mineral once is extracted cannot be replenished. It was also opined that if mineral is illegally extracted without following the mandatory requirements of the Forest Conservation Act, 1980 it would also lead to an irreparable ecological imbalance as well.
22. Feeling aggrieved by the said G.O., the petitioner filed the present writ petition on the following grounds:
i. The impugned orders are arbitrary and lacking application of mind.
ii. The State Government does not have legislative power to suspend the mining operations.
iii. Principles of natural justice haves been violated.
iv. Without prejudice to the above, no tangible justification for prohibiting transportation of mineral that has already been won over and covered under royalty.
v. Without prejudice to the above, the prohibitory orders could have been restricted to a span of area somewhere near the boundary instead of the entire lease area.
23. It is also stated in the counter that insofar as the first ground is concerned, it is submitted that the State Government while issuing the said G.O., had examined the 3 Member Committee Report and the CEC report. If the contents of both the reports regarding the large scale illegal mining operation were found to be true, large extents of Reserve Forest would have been obliterated, thereby causing severe ecological imbalances which could take years to rectify. Further the list of irregularities including allegations of inter State boundaries between the States of A.P. and Karnataka having been obliterated, which could lead to inter State disputes, on revenue sharing.
24. Coming to 2nd ground, it is stated in the counter that it is well settled principle of law that an authority having power to grant would have the inherent power to cancel the grant. Notwithstanding the same, the Mines & Minerals (Development & Regulation) Act, 1957 specifically contains the following provisions:
Section 4(1) : No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and rules made there under.
Section 4(1A): No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made there under.
Section 21 deals with the penalties to be imposed on whoever contravenes the provisions of Sub-section 1 or Sub-section 1A of Section 4 and other parameters like raising of mineral without any lawful authority etc., and the imposition of penalties thereof.
Thus, it can be seen that for any person to undertake mining operations, the same can be undertaken only under a valid lease that is granted by the State. Whenever any mineral is extracted or transported without such a lease or even outside the area of lease that has been granted would be clearly illegal and in violation of Section 4 of the Act, which is liable to be met with penalties as stipulated in Section 21.
25. In view of the above provisions and Rule 27(1), (2) & (5) of Mineral Concession Rules, 1960, the State Government has powers to prohibit or cancel the leases if there are any violations found after following the procedure prescribed.
It is also stated in the counter that in the instant case, the State Government felt it necessary to stop the mining operations of all the lease holders as it found that there appeared to be large scale irregularities and therefore, it was found necessary that an appropriate enquiry would have to be initiated by the State as per the rules to determine the nature and extent of the breach of the lease conditions and violations of the Act, Rules and the lease agreement. In view of the above, it was considered necessary that the mining operations be stopped at the first instance, appropriate agencies be entrusted with the responsibility of determining the nature and extents of violations, so that the petitioner company along with other lessees could be put on notice for rectification of the said breaches and violation or for termination of leases, if found necessary. This is more in the nature of a preliminary enquiry aimed at understanding the extent of damage or loss only and no orders would be passed without granting an opportunity to the petitioner-company and others.
26. It is also stated in the counter that Insofar as 3rd ground is concerned, there appears to be a three fold complaint from the petitioner viz.,
a. No notice was issued when 3 Member Committee visited the mines and submitted the report to the State Government.
b. No notice was issued by the CEC before making allegations against the respective lease holders.
c. No notice was issued by the State Government before issuing of G.O. dated 25.11.2009.
It is submitted that the State is aware of the need to put the petitioner on notice and a bald notice without there being details as to the nature and extent of violations would be merely empty formality, which would perhaps not appropriately satisfy the test of the Principles of natural justice. Further, the State Government proposes to issue a detailed notice to the petitioner and other lessees before passing any final orders in the matter.
27. Coming to the 4th ground, it is stated in the counter that perusal of the reports that have been relied upon by the State, make it clear that there appears to be wide spread jumbling up of the boundaries, be it inter mine area boundaries or the state boundaries. There does not appear to be any distinction between one leased area and another and also in fact between one state and another. One of the irregularities is that there are no corresponding pits in the leased areas to match the extent of mineral that has already been dispatched. In such a situation, there cannot be any clarity as to the source of mineral. For all the practical purposes, the mineral could have been extracted from areas outside the leased areas where the state is yet to grant any lease in favour of any party. The mineral could have been from anyone of the mines and from the mines falling in the State of Karnataka or the reserved forest areas, for which there is no lease or permission. In such a situation, it is only appropriate that the mineral that is available is first preserved or protected before coming to conclusion as to, to whom it belongs. Iron ore is not a perishable commodity. The impugned order would only ensure that source is verified even before it can be concluded whether the valuables are legitimate or otherwise.
28. Insofar as the aspect of jurisdiction over the stockyard is concerned, it is stated in the counter that as per the definition of mine as defined under the Mines Act, 1952, it is evident that the stockyard wherein the mineral is stored comes within the definition of premises of mine. In fact, the Apex Court also upheld the said definition in
29. Insofar as 5th ground is concerned, it is submitted that it was felt appropriate to stop the mining operations by all the six lease holders in order to resolve the entire issue by examining the following aspects;
1. Fixing of lease boundaries of all six individual iron ore mining leases on the ground as per the lease sketches approved by the Government of India at the time of approval of the lease, in the same chronological order;
2. Fixing of the inter State boundary between A.P. and Karnataka State i.e., Bellary Reserve Forest where mining leases sanctioned in A.P. State are bordering Karnataka State.
3. Prepare a combined sketch of five mining leases located in a cluster at one place and the sketch of 6th lease located separately.
4. Identify unallotted forest land with its extent, if any, in between the mining leases located in the cluster.
5. Identify inter lease encroachments with their extent, if any between the mining leases held by various lease holders.
6. Identify illegal mining by the lease holders, if any over the unallotted forest lands.
7. Identify illegal activities such as construction of road, dumping etc., taken up by the lease holders other than permitted by the Government of India/State Government.
8. Identify excessive mining, if any, over and above quantities permitted by the Govt. of India/State Govt.
Unless the above aspects are established, the main issue regarding the irregularities stated to have been committed cannot be determined. There was no other alternative other than suspending the entire mining operations.
30. It is further stated in the counter that the petitioner is holding three mining leases and carrying out mining operations for iron ore and that the mining leases were granted with the prior approval of the Forest Dept., and as per the Mining plans approved by the Indian Bureau of Mines. The petitioner can produce a maximum quantity of 7 million tones of iron ore p.a., fro the three mining leases of OMC and one Mining Lease of AMC, as per the records.
31. The petitioner has not transported any iron ore to M/s. Brahmini Industries Limited, which is under construction. The petitioner is only exporting and selling the mineral to the other industries so far. Under the guise of promoting a huge steel project of Brahmini Industries Limited, the petitioner cannot be allowed to resort to illegal mining, encroachment into the forest areas, disturbing the mining lease boundaries in the Forest area by violating pollution norms.
32. The BIOP filed WA No. 1540 of 2008 before this Court and this Court disposed of the same on 15.12.2008by observing that it is a boundary dispute, which has to be raised before the appropriate Civil Court. This Court had observed in its judgment that "since it is open cast mining and inasmuch as the land belongs to the State List, particularly falls under the jurisdiction of Forest Department of the State, it is that particular Department and the State Government, who have to take a lead role to resolve the dispute to the extent possible, of course, with the aid of the Government functionaries, to the extent required." Pursuant to the orders of this Court, the State Government issued directions to take up survey of M/s OMC and M/s BIOP lease areas and fix the boundaries. Accordingly, the Divisional Forest Officer, Anantapur surveyed the areas and fixed the boundaries. BIOP filed W.P. No. 201 of 2009 before the Supreme Court raising the boundaries dispute and requested a direction to MOEF to take up the survey. The counsel of the MOEF assured that they would complete the survey within six weeks. The Advocate for A.P. Government has informed the State that there are no orders of the Supreme Court directing a survey to be conducted and that it was only the assurance given by the counsel of the MOEF. It is true that T. Ganesh also filed an implead application in IA. No. 2 of 2009 in W.P. No. 201 of 2009. Hence, the issue related to the boundary dispute between the OMC and BIOP is pending before the Supreme Court for adjudication.
33. Out of the three mining leases held by the petitioner, the mining lease over an extent of 68.50 hectres is isolated one and the remaining mining leases are located in cluster areas as per the the lease sketches, along the boundary line of H. Siddapuram and Obulapuram where allegations and prima facie observations of shifting of boundaries are reported to the Government by the Forest committee and certain grave violation under FC Act pointed out by the CEC. CEC report indicates that there could be gap areas between the- 5 mining lease areas which are under encroachments by the lessees including the petitioner. If CEC has conducted a preliminary enquiry it would be only natural that they come to prima facie opinion regarding they being any pressing and compelling reasons for making any interim recommendations.
34. As the Mining operations are found to be in violation of both MM (D&R) Act, 1957 and FC Act 1980 the Government has issued the impugned orders for immediate suspension of Mining and Transportation of Iron ore before initiating further action under Rule 27(5) of M.C. Rules, 1960 and other statutory provisions.
35. The orders of the Government are in accordance with law and as per MM (D&R) Act, 1957 and M.C. Rules and are based on the recommendations of Forest Committee of the State Government dated 20.11.2009. the impugned order is not solely based on the CEC report but based on the findings of the encroachments, shifting of boundaries etc., as observed by the Forest Committee as well and that the suspension of mining operations is not only restricted to the petitioners-company but has been made applicable to all the mining leases in the forest area of Obulapuram. Based on the several allegations on the illegal mining and transportation of iron ore from the mining leases in the sector, the Government has constituted the committed and the G.O., was kept in A.P. Govt. web site. The copy of the report was not supplied to the petitioner as interim/temporary action was initiated under the impugned order and while initiating further action, the same will be supplied along with the show cause notice. As the lease holders have violated the M.C. rules and the lease deed conditions and encroached into the Forest and adjacent lease hold areas and exploited the mineral, it was felt justifiable to stop mining operations including transportation from stockyards also as the source of iron ore to stock yards is from these mines.
36. The source of iron ore for stock yard of the petitioner is from three mining leases and AMC and Y. Mahabaleshwarappa and sons which all are located in this sector where the Forest Committee has observed irregularities to FC Act and MM (D&R) Act. Though the petitioner holds valid leases, the validity will sustain till the petitioner follows the conditions and stipulations laid down in the lease deed and the Rules.
37. It is also stated in the counter that the impugned order issued is in accordance with law and therefore, it needs no interference by this Court.
Writ Petition No: 26083 of 2009
38. This writ petition is filed questioning the G.O.Rt. No. 723, dated 25.11.2009 issued by the Government of A.P., suspending the mining operations of the petitioner-company and others.
39. The facts stated in the affidavit in brief are as follows:
The G.O. is common for six lessees and Obulapuram Mining company, is one out of such lessee. The promoters of the petitioner-company and the promoters of the M/s Obulapuram Mining company are one and the same.
40. The petitioner-firm obtained the second renewal of mining lease for Iron ore over an extent of 6.5 hectares in Sy. No. 1/P of Obulapuram village, Bellary Reserved Forest of Anantapur district for a further period of 20 years with effect from 19.8.2003, vide orders issued in G.O.Ms. No. 172, Industries and Commerce Department, dated 10.7.2006. Pursuant to the same, the Assistant Director of Mines and Geology, Anantapur, permitted to continue the mining operations for Iron Ore by the petitioner-firm, vide his proceedings No. 2379/M/06, dated 18.8.2006. In fact the said mining lease was granted for extraction of Iron ore in the Forest area after prior approval from the Government of India u/s 2 of the Forest (Conservation) Act, 1980 and the same is evident from the proceedings issued by the Government of India, dated 13.7.1998 and 19.8.2003, referred by the State of A.P., in G.O.Ms. No. 82, Environment, Forests, Science & Technology Department, dated 24.10.2003, pursuant to the orders issued in G.O.Ms. No. 172, Industries and Commerce (Mines-III) Department, dated 10.7.2006 and the orders issued in G.O.Ms. No. B2, Environment Forests, Science & Technology Department, dated 24.10.2003, after entering into the agreement with the Forest Department. The petitioner-firm is also having the consent of A.P. Pollution Control Board for quarrying the mining operations upto 30.11.2009. Before the grant of second renewal, the petitioner-firm conducted the mining lease operations during the first renewal lease period commencing from 27.1.1971.
41. While so, the Divisional Forest Officer, Anantapur issued a notice dated 30.10.2009 for stoppage of operations on the ground that the petitioner-firm does not possess the valid consent from the Pollution Control Board. The petitioner gave reply. The petitioner-company commenced the mining operations after obtaining necessary clearance from the Pollution Control Board and continuing the mining operations as per the norms of the Pollution Control Board.
42. While so, the Government of A.P., issued the impugned G.O., stating that the Principal Chief Conservator of Forests has constituted a Three Member Committee and submitted its report on 20.11.2009, which revealed certain inconsistencies on the location of inter village boundary between Obulapuram and H. Siddapuram villages undertaken by State High Level Committee under the Chairmanship of Chief Conservator of Forests, Ananthapur. Further, the CEC advised to the Supreme Court to take immediate steps to stop mining operations, including the transportation of already mined material in respect of six mines dealt with in Central Empowered Committee''s report.
43. The State Government taking into account of the contents of the Three Member Committee report as well as Central Empowered Committee''s report, suspended the operations, including transportation of already mined material from all the Six Mines and the respective stockyards at various placed pending appropriate orders from the Supreme Court on CEC report. The Principal Chief Conservator of Forests and the Director of Mines and Geology were directed to take immediate necessary action.
44. The impugned G.O. is without jurisdiction since the lease granted to the petitioner under MMDR Act is governed by MMDR Act only. There is no power conferred upon the State Government under MMDR Act or Under Mineral Concession Rules enabling it to suspend the mining and transportation operations. There is no encroachment or violation by the petitioner-firm even according to CEC report. Absolutely there is no complaint by anybody alleging any encroachment in the area and therefore, there is absolutely no justification in stopping the mining operations. The impugned G.O. is void ab initio since no show cause notice and no opportunity of being heard was given to the petitioner before the mining operations of the petitioner are directed to be suspended. The impugned G.O. is silent about the authority, the source of power or exercise of power relatable to which provision of law under which statute.
45. Insofar as the dispute relating to M/s. Bellary Iron Ores Private Limited and the writ petitioner is concerned, the Government of A.P., has already taken categorical stand in writing by submitting the compliance report as well as by issuing the memo dated 15.7.2009, which found part of the records of the Supreme Court in W.P. No. 201 of 2009 and it is estopped from taking any stand contrary to the same. Therefore, the suspension of mining operations in all the leases is illegal.
46. Further the village boundary between Obulapuram and H. Siddapuram villages was relaid by the A.P. State High Level Committee at the instance of BIOP and the entire record from part of W.P. No. 645 of 2008 and W.A. No. 1540 of 2008 in which the Division Bench of this Court was pleased to consider the same and against which, BIOP has not filed any SLP. Therefore, the State Government having got conducted the survey for about three months by the State High Level Committee with latest survey equipments and experts in survey, cannot rely upon the inspection report of the Three-Member Committee in which there is no expert in survey to which survey and land records or Mines and Geology Department are not parties.
47. Being the lessee, the petitioner-company was not informed of about the constitution of three member committee, the scope and the purpose for which the committee desire to inspect and deal with and finally even the purported report of the Three Member Committee has not seen the light of the day till date. The action of the Government A.P., in stopping the transportation from the stock yard of the petitioner company situated Obulapuram village is illegal, as the petitioner has already paid royalty for the material mined, sold out the material to some parties. The ore does not belong to petitioner company. There is absolutely no justification to stop the sold material from transportation not fro the mines but from the stockyard.
48. The respondents 1 and 2 filed a memo adopting the counter-affidavit filed in W.P. No. 26083 of 2009.
Submissions:
49. It is contended by learned senior Counsel that nearly 8 committees have been appointed by the Government from time to time and that when a question was raised in the Assembly, a delegation of political parties have also visited the sites and found neither violation in mining operations nor any boundary dispute. It is also further contended that even the other committees who were appointed from time to time all of them have found that there was no allegation of illegal operations beyond the mining lease granted to the petitioner. It is also contended that the basis for issuance of impugned GORt. No. 723 Industries and Commerce, M-III department dated 25-11-2009 is the report of Central Empowered Committee (three-member committee) constituted by the Hon''ble Supreme Court by its order dated 9-5-2002 in Writ Petitions (Civil) Nos. 202/95 & 171/96. According to the said G.O the said committee in its report submitted on 20-11-2009 reported several inconsistencies in the area located at Siddapuram and Obulapuram villages undertaken by the High level committee constituted by Forest Department date 4-2-2008 under the Chairmanship of Chief Conservator of Forests. It is also contended that the G.O is also based on the recommendations of Central Empowered Committee which submitted its report to the Supreme Court in IA No. 2 of 2009 and the said committee has advised the State Government to take immediate steps to stop the mining operations including transportation of mined material from six mines dealt in its report. Learned Counsel further contended that in the G.O it is stated that the balance of convenience lies in suspending the mining operations in all the six mines dealt with in the CEC''s report, since the iron ore once mined and or dispatched cannot be recouped and thereby suspended the operations, including transportation of already mined material from the six (6) Mines mentioned at para-1 of the G.O and the respective stock-yards at various places, pending appropriate orders from the Hon''ble Supreme Court of India on CEC Report. Aggrieved against the same, the present writ petition is filed.
50. A Division Bench of this Court granted interim stay of the operation of the said G.O after hearing both sides and aggrieved against the same, State Government preferred an appeal to the Supreme Court. The Supreme Court by virtue of orders dated 14-1-2010 granted interim stay of the orders passed by Division Bench of this Court dated 11-12-2009 in Civil Appeal No. 269-270/2010, but, the apex Court directed the parties to appear before the High Court on 18-1-2010 observing that the High Court to dispose of the matters as early as possible. It is also contended that the apex Court also observed that the High Court shall also hear the C.E.C., who is made as one of the respondents in the proceedings and that the facts stated by the C.E.C. may be considered on merits by the High Court. With the above observations, the Supreme Court disposed of the SLP No. 1301/2010 and 1379/2010.
51. It is also contended that one of the conditions imposed in the interim order of the High Court is that the State Government shall be free to identify, demarcate and fix the boundaries of the leased areas after giving notices to the applicants, and it is also observed by the Supreme Court in its order that it may be done by the State Government and the interim stay ordered by it will continue, except as regards this condition, till the High Court passes a final order.
52. In view of the orders dated 14-1-2010 passed by the Apex Court that the matter be disposed of within a period of four weeks these matters are listed before this Division Bench for final hearing.
53. It is contended on behalf of petitioner that while issuing the said G.O. the Government has not taken into consideration all the orders passed by a Division Bench of this Court that the boundary dispute has to be settled in the civil court, but, instead, the State Government acted only on the recommendations made by the CEC in suspending the mining operations. It is contended that the word ''suspension of the operations'' is unknown to law of Mining and even assuming that the power exists, it only exists with the Central Government but not with the State Government as the Central Government is the authority to grant or approve the license/lease. It is also contended by the learned Counsel that in the light of the observations made by the Apex Court that they never asked CEC to submit a report, the recommendations made by the CEC to suspend the mining operations cannot be said to be a binding force on the State Government to pass the impugned G.O. on the ground of balance of convenience and also that once material is lifted it cannot be recouped. It is contended that the apex Court has observed that the report submitted by the CEC has also to be considered, this Court has to look into the legality of the CEC report on merits. It is contended that the impugned G.O itself is bad for want of affording an opportunity to the petitioner to put forth its objections to any of the reports relied upon by the State Government while issuing the G.O. Hence, the order of the Government is non-est in the eye of law for not following the principles of natural justice and also without jurisdiction as the Statute does not prescribe such action.
54. Learned Counsel further argued that neither of the committees, at any point of time, has given a notice to the petitioner company while conducting inspection of the site, so also the Central Empowered Committee (hereinafter referred to as ''CEC'') and that the CEC has not even visited the site to have on ''spot survey'' of the boundaries nor did it give any notice to the petitioners while submitting the report.
55. Learned Counsel has further argued that Writ Petition No. 201/2009 was been filed before the Supreme Court by one S.K. Modi as petitioner No. 1 and Bellary Iron Oar company as petitioner No. 2 with a prayer to ensure that the survey and demarcation of the mining lease mentioned in the order dated 22-4-2004 be completed within four weeks. It is contended that a reference has also been made to the judgment of the Division Bench of this Court in Writ Appeal No. 1540 of 200885 WP No. 645 of 2008 dated 15-12-2008. The apex Court disposed of W.P.(Civil) No. 201 of 2009 observing that learned Counsel appearing for the MOEF submits that the survey will be conducted within a period of six weeks. Then IA No. 1 was filed in the said petition by the petitioner herein before the Supreme Court for recalling the order passed in the above writ petition and that was directed to be listed on 23-7-2009 and again it was adjourned to 24-8-2009. When the matter came up on 24-8-2009 the Supreme Court has ordered a notice in IA No. 2 of 2009 that was filed by one Tapal Ganesh who is not a party in the main writ petition making the Chairman, the Central Empowered Committee as proposed respondent with different prayers as show in the writ petition and the Supreme Court has only issued notice which is filed for clarification of the order dated 1-5-2009.
56. Learned Counsel has further contended that as the Committee has not even come on record as proposed respondent the committee''s report cannot bind the State Government to pass the impugned G.O. Hence, the order of the State Government is ultra vires of the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (for short called ''MMDR Act''.). Learned Counsel, based on record, has further argued that when a question was raised in the Legislative Assembly with regard to boundary dispute, a delegation of political parties have also inspected the site and found that no illegal mining operations were carried out. It is also contended that the CEC has also not given any opportunity to the petitioner and it has submitted its report basing on certain records of the State Government and it is one sided report. It is contended that if any violation of the Forest Act is found, the Government of India, Ministry of Environment & Forests (GOI) issued memo No. 5-5/86 FC dated 7-12-1999 to the effect that in case if the State Government found any violations of the provisions of Indian Forest (Conservation) Act a report should be sent to Chief Conservator of Forests, Government of India, so as to take appropriate action for such violation. It is contended that the State Government did not chose to act upon that memo and has taken a decision on its own. It is contended that the State Government has no power what-so-ever to suspend the operations either under the Mines and Mineral (Development and Regulation) Act or The Mineral Concession Rules, 1960 and in the absence of such power, relying upon the material which is almost in the exparte form shows the violation of principles of natural justice and the report of CEC as well as the other committees is behind the back of the petitioner and hence the impugned G.O is liable to be set aside. It is contended by the counsel for petitioner that as the lease is granted under Mines and Mineral (Development and Regulation) Act 1957, which is the legislation made by the Union Government dealing with the subject under its control, State has to act only as per the provisions of the said Act as the subject is already covered under the said Act.
57. Learned Senior Counsel Sri Parasaran and Sri Mukul Roathgi, on behalf of petitioners have argued that the action of the State Government in issuing the impugned G.O is without any jurisdiction and violative of provisions of the Act and also the Rules and also the principles of natural justice. It is contended that as the petitioners have established a large industry and obtained the orders of export, the sudden suspension of mining operation, without any opportunity of being heard, would amount to infringement of right to trade and business as provided under Article 19(1)(g) of the Constitution of India. It is also argued that the findings of the committees is beyond the judgment of the Division Bench findings in W.A. No. 1540 of 2008 as it was observed by the Division Bench that the matter involves purely questions of fact which has to be verified after giving an opportunity to the affected persons. Learned Counsel also contended that the report of the CEC which recommended for suspension of the operations is not based on any actual fact finding for the reason that the Committee never visited the disputed site and that though it has given a notice to the State Government and others but failed to give any notice to the affected parties which itself would go to show that the Committee has acted in violation of principles of natural justice and such findings do not bind the State to pass impugned orders.
58. Learned Counsel also submitted that the Three-member committee has not found any illegality in the mining of this OMC private Company and it pointed out only certain irregularities with regard to the Forest Laws in its report dated 20-11-2009 and has found no irregularities and therefore it ought not to have recommended for suspension of any mining operations when there is no illegal mining. Learned Counsel further argued that there is a variation in the CEC report on 19-11-2009 and three-member committee on 20-11-2009 which itself goes to show that CEC report cannot be a basis for suspending the mining operations. It is further contended that the CEC has asked for a clarification from the State Government on 13-11-2009 and there is no material available to show that the State Government clarified in that regard by furnishing the information as required by the CEC. He also contended that a meeting notice was issued by the C.E.C on 24-9-2009 to discuss with regard to alleged violation of Forest (Conversation) Act, 1980 by the DFO, Ananthapur District and though a copy was marked to the officials concerned, so also to the applicant through his advocate on record and also to the members of CEC but no notice was issued to the petitioner company whose land has to be surveyed to know whether there is any boundary dispute or illegal mining operations that itself goes to show that the committee has acted beyond its jurisdiction and also acted in violation of the principles of natural justice. It is contended that pursuant to the letter dated 23-11-2009 by the C.E.C, addressed to the Chief Secretary to Government of Andhra Pradesh stating that they submitted a report to the Supreme Court and they also advised the State Government to take immediate steps to stop mining operations including transportation of the material from the six mines, which is resulted into issuance of the impugned G.O by the State Government on 25-11-2009 under GORt No. 723, Industries and Commerce (M-III) Department by suspending the mining operations.
59. Learned Counsel has further argued that the issuance of G.O is without jurisdiction on the part of the State Government and more so the State Government has not applied its mind independently before issuing the G.O nor issued any notice to the affected parties seeking any clarification in view of the fact that the three-member committee appointed by the State Government on 20-11-2009 is completely contra to the report submitted by CEC. Secondly the issuance of GO without giving any notice to the party is violation of principles of natural justice. Except the report submitted by the C.E.C., there was no other material available to the State Government to come to the conclusion that there is any illegal mining operations or any boundary dispute to pass the impugned order and hence the same is liable to be set aside.
60. Learned Senior Counsel Sri P.S. Narsimha has submitted that, Article 246 read with Schedule 7, List-I, as per entry-54, the Union Government has power to enact the laws relating to the mines and mineral and that so far as the State is concerned, Entry 23 in the list, deals with them. He also submitted that the power of granting of licence is with Central Government and termination also lies with the Central Government. Learned Counsel also referred to Section 2 of the Act to support his contention under which the Union took the control with regard to regulation of mines and the development of minerals to the extent provided thereunder.
Learned Senior Counsel Mr. Narsimha argued that the CEC failed in issuing notice to the affected party i.e., the petitioner herein and that there was no site visit conducted by the Committee to find out the factual scenario with reference to any encroachment of the boundaries. It is contended that the Central Empowering Committee was constituted in pursuance of the orders of the Hon''ble Supreme Court in IA Nos. 1413, 1414 and batch in W.P.(C) 202/1995 filed by one T.N. Godavarman Thirumulpad, for the purpose of monitoring and ensuring compliance with the orders of that Court covering the subject matter of forest and wild life and related issues arising out of the said orders. Learned Counsel also argued that the guidelines were issued by the Supreme Court in IA 2016 in WP(c) No. 202/1995. With reference to the functions of the CEC, it is contended that it is constituted to monitor the implementation of the orders of Supreme Court and place reports of non-compliance before the Court and Central Government for appropriate action. The other condition is to examine pending Interlocutory Applications in the said Writ Petitions (as may be referred to it by the Apex Court) as well as the reports and affidavits filed by the States in response to the orders passed by the Hon''ble Supreme Court. Learned Counsel also argued that the jurisdiction of CEC is fixed in the context of W.P.(C) No. 202/95 and in IA No. 1413; 1414 and batch and they cannot assume the power by themselves for submitting a report to the Supreme Court without any orders of the apex Court. Learned Counsel also argued that in view of the observations made by the Apex Court that the facts stated by the C.E.C may be considered on merits by the High Court, this Court is empowered to go into merits of the report submitted by the C.E.C, that violated the principles of naturals justice and that as the Committee did not even visit the site and submitted its report on the disputed questions of fact which is to be proved based on evidence to be adduced by the respective parties and as such the findings of the committee cannot be said to be valid.
61. Per contra, the learned Advocate General has argued that in view of the reports dated. 19-11-2009 & 201-11-2009 submitted by the C.E.C, and other three-member committee of the State Government the Government has directed the petitioner company and other companies to stop illegal mining operations and not to transport the stocks pending appropriate orders from the Hon''ble Supreme Court. Learned Advocate General also argued that the merit of the C.E.C report has to be gone on its own merits as directed by the Supreme Court. The C.E.C has advised the State Government to stop the mining operations as it found some illegal mining operations beyond the fields allotted to the parties and State has got power to stop the mining operations if it finds any irregularities. Learned Advocate General argued that the State can exercise inherent power to issue G.O in view of wild allegations and also in view of the reports that illegal mining activities are going on in the disputed site by the petitioners and therefore the power of the Government cannot be find fault.
62. Learned Counsel Sri A.D.N. Rao, appearing on behalf of the Central Empowering Committee has argued that in number of cases the Supreme Court has accepted the reports submitted by C.E.C and when notice was ordered in IA No. 2/2009 papers were transmitted to C.E.C and the Committee is not precluded from filing its report and therefore it opined that it has to submit its report and accordingly the Committee has acted upon to find out whether there is any illegal mining operations by superimposing the maps supplied by the State Government. He fairly submitted that the Committee has not visited the site and there is no need to have a physical survey and the maps supplied by the State are sufficient to find out whether there is any boundary dispute or not. Learned Counsel also tried to support the report of the C.E.C on the ground that Supreme Court has issued guidelines enlisting the powers exercised by the Supreme court in T.N. Godavarman case and the committee has submitted its report and the same was accepted by the Supreme Court. It is also contended that the committee is only an advisory to the State Government and it has advised the State Government to stop the mining operations and it is for the Government either to accept or to reject the recommendations, but, committee cannot be find fault for issuing such recommendations as such recommendations are within the parameters of the guidelines issued by the Apex Court.
63. Heard all the learned Counsel appearing on behalf of respective parties.
64. The record shows that the petitioner companies were granted three leases for extracting mining in Ananthapur District by virtue of GOMs No. 80 dated 18-2-2002, EFS&T orders and forest clearance in GOMs No. 73 dated 28-7-2007 in an extent of 25.98 Hectares in Obulapuram Forest compartment No. 695, and by virtue of GOMs No. 152, dated 18-6-2007 & forest clearance in EFS & T Orders in GOMs No. 117 dated 7-10-2006 in an extent of Ac 39.5 Hectares in Obulapuram Forest Compartment No. 695 , third lease under GOMs No. 151, dated. 18-6-2007, & forest clearance in EFS & T Orders under GOMs No. 07, dated. 10-01-2007 in an extent of 68.5 Hectares in Malpangudi Forest Compartment No. 697 & 698 respectively. The above fact remains undisputed by the respondents. According to the petitioners they have been working in the iron ore mines, within the leased boundaries, in accordance with law. The lease deeds are valid up to 25-4-2017, 2027 and 2027 respectively. It is also an undisputed fact that the petitioner company has obtained all necessary clearances as required under the Pollution (Control) Act and also the clearances u/s 2 of the Forest (Conservation) Act, the clearance under Environment (Protection) Act and also other authorities if any. The undisputed fact remains that there was an issue with regard to the boundaries between the petitioners company and one M/s. Bellary Iron Ore Company. The record also shows that on 17-3-2008 final survey report of the A.P. State High Level Committee was accepted by the Government of Andhra Pradesh which was also the subject matter in Writ Petition No. 645 of 2008 and also in W.A. No. 1540 of 2008. The chronology of events which remained undisputed by the respondents as narrated in the affidavit would go to show that there was a final survey report of A.P. State High Level Committee dated 17-3-2008. On 18.2.2009 the Government of A.P., directed the Divisional Forest Officer, Ananthapur to fix the mining lease boundaries. The Chief Conservator of Forests confirmed that there are no violations under Forest (Conservation) Act, 1980 and all the leases are adequately demarcated on the ground. On 25.4.2009 the Secretary, Commerce and Industries Department of A.P., addressed a letter to the Ministry of Mines, Government of India stating that survey was conducted and leased area was adequately demarcated on the ground. The State Government also requested on 28-4-2009 the Central Government MOEF to revoke the suspension order passed on 22-4-2009. Accordingly the suspension orders were kept in abeyance. On 27-6-2009 the Special Secretary, MOEF, Union of India reported that no survey is needed since there are no violations by any of the lessees. The record further shows that the C.E.C submitted its report dated. 19- 11-2009 with an observation that after superimposition of the plans supplied by the State Government it would show that the boundaries are not tallying with the original allotment and therefore it recommended for stoppage of mining operations and also not to lift the stocks which are available on the stock yards. In pursuance of the said report, the State Government issued the impugned GORt No. 723, Industries & commerce (M-III) Department, dated 25-11-2009 suspending the mining operations of the petitioner company including the transportation of already mined material from the six mines mentioned at para-1 of the GO., and in the respective stock yards pending appropriate orders by the Hon Tale Supreme court of India. The said G.O is impugned in the present writ petition by the petitioner companies. It is necessary to extract the impugned G.O., which is as follows:
Government of Andhra Pradesh
Abstract
Mines & Minerals - Mining Leases for Iron Ore existing in the H. Siddapuram, Obulapuram and Malapanagudi villages, covering Bellary Reserve Forest, Anantapur District - Suspension of mining operations - Orders - Issued.
------------------------------------------------------------------------------------------------
Industries and Commerce (M.III) Department
G.O.Rt No. 723, Dated: 25-11-2009
Read the following:
1) From the Prl.CCF, AP, Hyderabad Rc. No. 51066/2004/F2, dated: 06-11-2009
2) From the Prl.CCF, AP. Hyderabad Rc. No. 51066/2004/F2, dated 20-11-2009
3) From Sri M.K. Jiwrajka, Member Central Empowered committee F. No. 1-21/CEC/SC/2008-Pt.III dt.23.11.2009.
ORDER:
1. Whereas, the Government of Andhra Pradesh have granted the following mining leases in Obulapuram, H-Siddapuram and Malapanagudi Villages of Ananthapur District covering part in Bellary Reserve Forest:
-------------------------------------------------------------------------
Sl. Name of the Lessee Reference in EFS&T orders No.
No. which &
Lease was Date
granted (Forest Clearance)
-------------------------------------------------------------------------
1. M/s. Bellary Iron Ore G.O.Ms. No. 102, GOMs No. 76
Pvt. Ltd. Dated. 11-02-2000 Dt 26.6.98
-------------------------------------------------------------------------
2. M/s. Y. Mahabales- G.O.Ms. No. 156, G.O.Ms. No. 152,
Wara & Sons Dt.08-03-2001 Dt.2.12.1999
-------------------------------------------------------------------------
3. M/s. Obulapuram Transferred vide G.O.Ms. No. 73,
Mining Company G.O.Ms No. 80 Dt.28.7.07
Pvt. Ltd., Dt. 18-02-2002
-------------------------------------------------------------------------
4. M/s Ananthapur G.O.Ms. No. 172 G.O.Ms. No. 82
Mining Corporation Dated.10.7.06 Dated.24.10.03
-------------------------------------------------------------------------
5. M/s. Obulapuram G.O.Ms. No. 151, G.O.Ms No. 07
Mining corporation Dt.18-6-2007 Dated 10.01.07
Pvt. Limited
-------------------------------------------------------------------------
6. M/s. Obulapuram G.O.Ms. No. 152 G.O.Ms. No. 117,
Mining Corporation Dated. 18.6.2007 Dated. 7-10-2006
Pvt. Limited
-------------------------------------------------------------------------
2. And whereas, pursuant to the directions of the Government, the Principal Chief Conservator of Forests, Andhra Pradesh, Hyderabad has constituted a three member committee vide reference 1st read above to enquire into the allegations of illegal mining etc., in the above mining areas. The said Committee in it''s report submitted on 20-11-2009 has reported several inconsistencies in the location of the inter village boundary between H. Siddapuram and Obulapuram Villages undertaken by the High Level Committee constituted by the Industries & commerce Department on 14-2-2008 under the chairmanship of the chief Conservator of Forests, Anantapur. That the inconsistent survey done and the resultant faulty location of inter village boundary has led to improper location of various mining leases on the ground.
3. And whereas, the Central Empowered Committee while submitting it''s report to the Hon''ble Supreme Court of India on I.A. No. 2/2009 in W.P.(C) No. 201/2009 filed before the Hon''ble Supreme Court of India, have furnished a copy of the said Report to the State Government vide reference 3rd read above and advised to take immediate steps to stop the mining operations including transportation of already mined material from all the six (6) mines dealt with in the CEC''s Report.
4. And whereas, the balance of convenience lies in suspending the mining operations in all the six (6) mines dealt with in the CEC''s Report, since the iron ore once mined and or dispatched cannot be recouped.
5. Now, therefore, after detailed examination of the entire issue, the State Government, taking into account the contents of the three Member Committee report and the contents of the Central Empowered Committee report, hereby suspend the operations, including transportation of already mined material from the six (6) Mines mentioned at para-1 above and the respective stock-yards at various places, pending appropriate orders from the Hon''ble Supreme Court of India on CEC report.
6. The Director of Mines & Geology, Hyderabad and the Principal Chief Conservator of Forest, A.P., Hyderabad shall take immediate necessary action accordingly.
(By order and in the name of the Governor of Andhra Pradehs)
M. Veerabhadraiah
Secretary to Government
To
The Director of Mines & Geology, Hyderabad
The Principal, Chief Conservator of Forests, A.P., Hyderabad
The E.F.S. & T Department
The Lease Holders concerned through DMG, AP, Hyderabad
Copy to: The Central Empowered Committee,
2nd Floor, Chanakya Bhavan, Chanakya Puri, New Delhi. The Spl. Secretary to C.M/P.S. to C.M/P.S to Min (M&G)/P.S. to Min.(Forest) P.S. to C.S
Xxx
Xxx
//forwarded by order//
Section Officer
65. It is clear that several committees were appointed by the State Government to go into the question of illegal mining operations by the petitioner companies and according to them when a question was raised in State Assembly, the representatives of political parties have also visited the site and found that there are no illegal mining operations. It is to be noticed that the State level committee (Three-Member committee) which was appointed on 20-11-2009 has reported several inconsistencies in the location of village boundary between Obulapuram and H. Siddapuram villages. The G.O. also reads that the CEC has submitted its report to the Supreme Court in IA 2/09 in Writ Petition No. 201/09 and furnished a report to the State advising it to take immediate steps to stop mining operations including transportation of mined material in the six (6) mines dealt with in CEC report. The above G.O further reads that the mining operations are suspended including transportation of already mined material from the six mines mentioned at para-1 and respective stockyards at various places as per CEC report. Learned Counsel has argued that none of the committees, either the State Level (Three-Member committee) Committee or the C.E.C has issued any notice to the petitioner company or afforded any opportunity to the petitioner either before or at the time of conducting survey so as to make any submission before the said committees before they submit their reports. Learned Counsel further argued that the action of the said committees as well as the State Government in issuing the impugned G.O., without issuing any prior notice to the petitioner, is nothing but violative of principles of natural justice and against the provisions of the Act.
66. Here, it is to be seen that right to conduct mining operation is a matter of right accrued to the petitioner by virtue of the statutory leases granted to it and thereby the petitioner has got a vested right to carryout the business so long as the lease is in force and for the purpose of curtailing the said right, which results depriving the legitimate right of the petitioners in conducting mining operations, would requires a notice of hearing by any statutory authority which would like to interfere with their mining operations. In the instant case, no such notice has been given to the petitioners which would amount to violative of principles of natural justice. Therefore, we see some force in the said contention of the counsel appearing on behalf of petitioners that issuing the impugned GO without notice of being heard is violative of principles of natural justice.
67. The main contention urged before this Court is that the action of the State Government is in violation of the provisions of the Act for the reason that Section 5 of the Act, makes it very clear that State Government shall not grant a reconnaissance permit, prospecting licence or mining lease to any person with respect to any mineral specified in the First Schedule, except with the previous approval of the Central Government. For better appreciation it is necessary to extract Section 5 of the Act, which reads thus:
5. Restrictions on the grant of prospecting licences or mining leases- [(1) A State Government shall not grant a reconnaissance permit, prospecting licence or mining lease to any person unless such person-
a) is an Indian national, or company as defined in Sub-section (1) of Section 3 of the Companies Act, 1956 (1 of 1956);
(b) satisfies such conditions as may be prescribed;
Provided that in respect of any mineral specified in the First Schedule, no reconnaissance permit, prospecting licence or mining lease shall be granted except with the previous approval of the Central Government.
Explanation: xxxxxx
From a reading of the above section, it is very clear that except with the previous approval from the Central Government, State Government shall not grant any reconnaissance permit, prospecting licence or mining lease and therefore the power of the State Government is very limited.
68. Further, Section 4A of the Act deals with the termination of such prospecting licences or mining leases. A reading of the section is as follows:
4A. Termination of prospecting licences or mining leases.- (1) Where the Central Government, after consultation with the State Government is of opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution, or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for conservation of mineral resources or for maintaining safety in the mines or for such other purposes, as the Central Government may deem fit, it may request the State Government to make a premature termination of a prospecting licence or mining lease in respect of any mineral other than a minor mineral in any area or part thereof, and, on receipt of such request, the State Government shall make an order making a premature termination of such prospecting licence or mining lease with respect to the area or any part thereof.
(2) Whereas xxxxxx
(3) No order making a premature termination of a prospecting licence or mining lease shall be, made except after giving the holder of the licence or lease a reasonable opportunity of being heard.
(4) xxxxxxxxxx
From the above, it is clear that Sub-section (1) of Section 4A of the Act indicates the procedure for termination of prospecting licence or mining leases and makes it obligatory on the part of the Central Government to consult the State Government if it is of the opinion it is expedient in the interest of regulation of mines, to request the State Government to make a premature termination of prospecting licence or mining lease in respect of any material other than a mining mineral and on such request the State Government shall make an order making premature termination of the licence or lease.
69. Further, Sub-section (3) of Section 4A mandates the Government to give prior notice and a reasonable opportunity of being heard in case of making a premature termination of a prospecting licence or mining lease. The Mines and Minerals (Development and Regulation) Act, 1957 or The Mineral Concession Rules, 1960 does not indicate any exclusive power vests with the State Government to suspend the mining operations unilaterally. In view of the above, it is only the Central Government which has got the power to pass any orders as it is the authority which has to give the approval for granting of prospecting licence or mining lease and if the Central Government refuses to approve the proposal made by a State Government, the State Government cannot grant such licence. Even in respect of termination of such licence or lease is concerned, the Central Government can order for a premature termination after consultation with the State Government and after giving a reasonable notice to the effecting parry.
70. Turning to the case on hand, in view of the above provisions of the Act which says that the State Government has got only limited power in regard to granting of licence or lease or premature termination of the same in accordance with provisions of the Act 67 of 1957, the contention of the learned Advocate General that the State Government has got inherent power to suspend the mining operations and also in preventing the agencies from lifting the mined material from the stockyards by way of impugned G.O cannot find place and has no legal force for the reason that the Mines and Minerals (Development and Regulation) Act 1957 was promulgated by the Parliament in the public interest.
71. Even in case of cancellation of lease on seriously disputed on facts, the following cases supported the principle that the cancellation should not be exercised under Rule 27(5) of the Mineral Concession Rules, 1960, without giving opportunity of personal hearing to lessee and is violative of the principles of natural justice and cannot be sustained. When a cancellation of lease is to be exercised invoking the powers under Rule 27(5) of Mineral Concession Rules, 1960, it was held that without giving opportunity of hearing before cancellation was all the more necessary when joint inspection was seriously disputed and facts were in controversy. See:
72. According to Section 5 of the Act 67 of 1957, the State Government shall not grant the prospecting lease except with the previous approval of the Central Government.
73. Section 4(A) has provided for termination of prospecting lease at the instance of the Central Government and the State Government could not terminate on its own. See:
74. Under the above circumstances, when the State Government has no power to terminate the lease except in accordance with the provisions of the Statute, contention of the learned Advocate General that they have inherent power to stop mining operation, even without hearing the affected party, without issuing notice to the affected party at different stages, cannot be sustained.
75. The function of Article 246 of Constitution of India read with Entry-54 of List-I is to give positive power to Parliament to make legislations in respect of the entries. In the Seventh Schedule of the Constitution in Union List entry-54 provides for regulation of mines and minerals development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest, the Union Government should take under its control the mines and development of minerals by way of a separate legislation and the result is the Mines and Minerals (Development and Regulation) Act, 1957. In view of the above, the contention of the learned Advocate General that the State Government has got inherent power to pass any orders including suspending the mining operations cannot be said to have any force as it is the Central Government which regulates the subject of mines and development of minerals by way of separate legislation under the Control of the Union. However, if at all any power is conferred, it is with the Central Government that can make any order with reference to grant of approval for granting prospecting licence or mining lease and also for premature termination after consultation with the State Government and after giving prior notice and reasonable opportunity of being heard to the affected party.
76. The above provisions would go to show that power vests with the Central Government to grant approval or for premature termination and therefore the contention of the learned Advocate General that the State Government had inherent powers is beyond the scope of the provisions of the Statute. The further contention of the learned Advocate General that they would contemplate to issue a notice cannot be sustained for the reason that the ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively depending upon the facts of each situation. In this case, the petitioner was not given any opportunity of being heard before a decision was taken by the respondent authorities to stop the mining operations and also preventing the petitioners from lifting the stocks from the stockyards. In the absence of any inherent power vested with the State Government, issuance of the impugned G.O is against the principles of natural justice. Further, the impugned G.O did not spell out any reasons except stating that the Three member committee, in its report submitted on 20-11-2009, has reported several inconsistencies in the location of the inter village boundary and the balance of convenience lies in suspending the mining operations in the six mines dealt with in the C.E.C''s Report. But, in this case, petitioner was granted with the lease in pursuance of the provisions of the Act and is a statutory lessee and therefore the power of the authorities also has to be exercised as conferred by the statute. Even though the impugned G.O did not spell out any reasons except mentioning that the balance of convenience lies in suspending the mining operations, yet, the Government in its counter tried to support its action by depending on different committees and different reports, but it is an established principle that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise at the time of hearing the matter in the Court. For the above proposition, support can be drawn from the decision between State Government Houseless Harijan Employees Association v. State of Karnataka AIR 2001 SC 437. The decision of the Government has to be regarded as violative of principles of natural justice, with reference to a case where the result of a decision taken by the Government, the other party is likely to be prejudicially affected; the Government has to exercise its power in accordance with law. In this case, the material placed before this Court go to show that the State has failed in exercising its power as per law.
77. Learned Advocate General could not place any source of tracing out the power to issue the impugned G.O when the leases are already covered by the Statute. It is also established principles of law that whenever a statute requires a particular act to be done in a particular manner; the authorities are bound to act under the provisions of that particular Statute. It is also to be observed that when a power is given by the Statute to do certain things in a certain way and the things must be done in that way only but not in any other manner than that which has been prescribed. For the above principle, support is drawn from
78. It is to be further seen that with regard to C.E.C the Hon''ble Supreme Court in its order observed that
In the impugned judgment the High Court has made certain observations regarding the CEC Report. We make it clear that both the parties are allowed to raise their contentions in respect of the report of the C.E.C. The pendency of any matter regarding this before this Court need not preclude the High Court from considering the C.E.C report on merits. We also make it clear that this Court had not specifically directed the C.E.C to file its report as regards these leases. The High Court shall also hear the C.E.C who is made as one of the respondents in these proceedings. The facts stated by the C.E.C may be considered on merits by the High Court.
79. From the above, it is clear that the Supreme Court has not directed the C.E.C to file any report as regards these leases and it left open to the High court to hear on the report of C.E.C. It is the contention on behalf of C.E.C. that they have drawn the report by superimposition of the maps furnished by the State Government and they came to the conclusion that there was overlapping of the boundaries, but the material goes to show that the CEC has submitted it''s report on 19-11-2009 recommending stopping of mining operations which also finds place in the impugned G.O. On 23-11-2009 a letter was addressed by the Member Secretary of CEC to the Chief Secretary to Government of A.P., and on 25-11-2009 the State Government issued the impugned G.O.Rt. No. 723. In the said GO it is also stated that the CEC has recommended for stoppage of mining operations by the petitioner which itself is sufficient to say that the Government merely acted on the report of the CEC and did not act independently by application of mind while issuing the said G.O. It has to be observed that though a contention is sought to be raised before this Court that CEC has taken up the job of submitting it''s report under impression that the Supreme Court has asked a report in the particular case, but the Supreme Court made it clear that it had not specifically directed the C.E.C to file its report as regards these leases and that if any such report is filed the High court shall also hear the CEC and may consider on merits.
80. Here, it may be necessary to extract the notification with regard to constitution of Central Empowered Committee and the guidelines framed by the Hon''ble Supreme Court, which are as follows:
Central Empowered Committee
(Constituted by the Hon''ble Supreme Court of India by India by order dated 9.5.2002)
Writ Petitions (Civil) No. 202/95 & 171/96
Room No. 106, Paryavaran Bhavan,
CGO Complex, Lodi Road
New Delhi
File No. 1-1/CEC/SC/2002 Dated: 3.6.2002
Notification
1.0 The Central Empowered Committee (hereinafter referred to as the Committee) has been constituted by the Hon''ble Supreme Court by its order dated 9.5.2002 I Writ Petitions (Civil) Nos. 202/95 & 171/96. In pursuance to para 2 of the said order, the following are nominated to the Central Empowered Committee with the approval of the Ministry of Environment & Forests (MoEF) and concurrence of the Solicitor General for India/Amicus Curiae in the said cases:
(i) to (iv) xxx
2. xxx
3. The powers and functions of the Committee as per the orders of the Hon''ble Supreme Court of India are as under:
(3) Pending interlocutory application in these two writ petitions as well as the reports and affidavits filed by the States in response to the orders made by the Court shall be examined by the Committee, and their recommendations will be placed before Hon''ble Court for orders.
(4) xxx
(5) The Committee shall have the power to:
(a) Call for any documents from any person or the Government of the Union or the State or any other official.
(b) Summon any person and receive evidence from such person on oath either on affidavit or otherwise.
(c) Seek assistance/presence of any persons(s)/official(s) required by it in relation to its work.
(6) The Committee may decide its own procedure for dealing with applications and other issues. Union of India shall provide suitable and adequate office accommodation for the Committee. The expenditure incurred on the working of the Committee including salary, remuneration o the extent not payable by the Government to the members and supporting staff, may be met out of income accruing to the Special Investigation Team (SIT). Necessary procedure for this may be formulated by the Committee in consultation with the SIT.
(7) & (8) xxx
81. The Supreme Court made certain guidelines for the C.E.C., in I.A. No. 2016 in W.P.(C) No. 202/95, which are as follows:
Herd learned Solicitor General and learned A.C. They have been contemplating all formalities and terms and conditions. After discussing the learned Solicitor General and learned Amicus Curiae, for the time being we agree with the following terms and reference of CEC:
1. In supercession of all the previous orders regarding constitutions and functioning of the Central Empowered Committee (hereinafter called the "Empowered Committee") is constituted for the purpose of monitoring and ensuring compliance with the orders of this Court covering the subject matter of forest and wild life and related issues rising out of the said orders.
2. The Committee shall exercise the following powers and perform the following Junctions:
(i) To monitor the implementation of this Court''s orders and place reports of non-compliance before the Court and Central Government for appropriate action.
(ii) To examine pending Interlocutory Applications in the said Writ Petitions (as may be referred to it by the Court) as well as the reports and affidavits filed by the States in response to the orders passed by the Hon''ble Court and place its recommendations before the Court for orders;
(iii) To deal with any applications made to it by any aggrieved person and wherever necessary to make a report to this Court in that behalf;
(iv) For the purposes of effective discharge of powers conferred upon the Committee under this order; the Committee can-
(a) Call for any documents from any person or the government of the Union or the State or any other official;
(b) Undertake site inspection of forest area involved;
(c) Seek assistance or presence of any person(s) or official(s) required by it in relation to its work;
(d) Co-opt one or more persons as its members or as special invitees for dealing with specific issues;
(e) Co-opt, wherever feasible, the Chief Secretary or his representative and Principal Chief Conservator of Forests of the State as special invitees while dealing with issues pertaining to a particular State;
(f) To suggest measures generally to the State, as well as Central Government, for the more effective implementation of the Act and other orders of this Court.
(v) xxx xxx
3. xxx xxx
82. It is fairly admitted by the learned Counsel appearing on behalf of Central Empowered Committee that the committee did not visit the site. The material also would go to show that the CEC was constituted in pursuance of the orders of the Supreme Court in W.P. No. 202/95 & 171/96 under Notification No. 1-1-CEC/SC/02 dated 3-6-2002; Sub-clause (5) of Clause 3.0 of Notification says that the Committee shall have the power to (a) Call for any documents from any person or the Government of the Union or the State or any other official, (b) Summon any person and receive evidence from such person on oath either on affidavit or otherwise; (c) Seek assistance/presence of any persons(s)/official(s) required by it in relation to its work. But in this case, the committee only relied upon by the material submitted by the Government and it never chosen to issue notice to the affected parties that is the petitioner herein and more so when there are so many disputed questions of fact with regard to overlapping of boundaries etc., the committee did not chose to visit the disputed site to know the real facts. In the absence of any such enquiry and more so in view of the observations made by the Hon''ble Supreme Court that they never asked the C.E.C to submit any report, submitting a report even without giving any prior notice to the affected party, it is to be held that the C.E.C has not followed the principles of natural justice and also has not followed the procedure as contained in Clause 3.0(5) as stated above. The duty of the C.E.C is only to take steps in implementing the orders of the Hon''ble Supreme Court. Further, it is to be held that the committee has not afforded any opportunity to the person affected and has come to the conclusion in recommending stoppage of mining operations till the matter is considered and decided by the Supreme Court. Under the above circumstances, the contention of the learned Counsel that they are entitled to file a report even though they are shown as proposed respondents in the above IA cannot be accepted. A pervasive argument has been advanced by Mr. P. Narasimha, senior Counsel, that C.E.C is supposed to file its report in I.As filed in W.P.(C) No. 202/95 & 171/96 famously known as T.N. Godavarman case and the guidelines issued by the Apex Court also makes the above proposition very clear. He contended that the State Government erred in acting on such recommendations of the CEC, which acted on its own.
83. We also had an occasion to go through the guidelines issued by the Apex Court in W.P.(C) No. 202/95 8K 171/96 in the case of T.N. Godavarman Thirumulpad and the constitution of the C.E.C and the notification thereon. It is a fact that C.E.C. was shown as proposed respondent in IA No. 2/2009, the application filed by one Tapal Ganesh, before the Apex Court. By order dated 24-8-2009 the Apex Court has ordered ''Notice''. No material is placed before this Court by any of the respondents that C.E.C. has been allowed to come on record in the said I.A. No. 2/2009 in pursuance of ''notice'' issued by the Apex Court. In the background of above facts, we see some force in the argument advanced by Mr. P. Narasimha, learned senior Counsel that filing of any report by C.E.C is confined only to such I.A. in W.P.(C) No. 202/95 & 171/96. It is equally important to note the observations of the Apex Court while disposing of Civil Appeal Nos. 269-270/2010 &SLP( c) Nos. 35169-35170/2009, on 14-1-2010 observed to the effect that ''we also make it clear that this Court had not specifically directed the C.E.C to file its report as regards these leases.'' ...''the facts stated by the C.E.C may be considered on merits by the High Court''. In view of the above observations of the Apex Court, the contention of learned Counsel appearing on behalf of C.E.C that there is no need for specific direction to file the report fails. Even on merits also, it is very manifest from the records that no notice has been issued to petitioner who is the affected party before submitting its report. Here it is not out of place to mention that the C.E.C has issued a notice to the State of A.P., on 5-10-2009 and also to the Principal Chief Conservator of Forests, Hyderabad on 13-11-2009 seeking certain information. The Principal Chief Conservator of Forests furnished information on 17-11-2009. But the C.E.C submitted its report to the Supreme Court on 19.11.2009 i.e., within a span of one day. It is not known how the C.E.C prepared its report within a day. Further, the material on record would show that the Member of C.E.C addressed a letter to the Chief Secretary, Government of Andhra Pradesh in File No. 2-21/CEC/SC/2008-PLD dated 23-11-2009 stating that a copy of the report has been provided to the standing counsel of the State of A.P., the Chief Secretary, Government of A.P., and the Principal Chief Conservator of Forests, A.P. Forest Department and also advised the Government to take immediate steps to stop the mining operations including transportation of already mined material, from all the six mines dealt with in the C.E.C''s report. From the above letter it is clear that the C.E.C. has not served a copy of its report to the petitioner which is against to the principles of natural justice. As stated earlier and also as admitted by the learned Counsel, the report is prepared without (i) visiting the disputed site; (2) only on the basis of material placed by the State (3) by superimposing the maps; (4) the C.E.C has not taken into consideration the observation of Division Bench of High Court in W.A. No. 1540 of 2008, wherein the Division Bench directed the petitioner to approach competent Civil Court for adjudication on boundary dispute. From the above, it can be said that C.E.C has acted on its own, more so, without following the principles of natural justice while recommending the State Government for stoppage of mining operations and for further direction not to lift the stock available in the stockyard. Hence, such report cannot be a basis for the State Government to issue the impugned G.O. In the following cases the Apex Court has held that Administrative Bodies are also bound to act justly and fairly which may bring in the requirement of natural justice.
84. It has to be observed that the Division Bench of this Court in Writ Appeal No. 1540/2008 observed that as there are bundle of disputed questions of fact are involved, it is for a competent Civil Court to go into all questions of fact, and therefore it granted liberty to the petitioners therein to approach the competent Civil Court having jurisdiction, seeking redressal of its grievance about the damages already suffered by the either party and the appropriate Government or Governments are directed to examine the ground realities and make all efforts to fix the mining boundaries in respect of leased out areas. The above judgment of the Division Bench of this Court in W.A. No. 1540 of 2008 has became final and binds all the parties including the State Government as the State Government is also a party to the above writ appeal. Learned Counsel appearing on behalf of the petitioner herein drew the attention of this Court to the observations made by the Division Bench in the above writ appeal to the effect that "as it is not in dispute since both petitioner as well as R-11 therein has been carrying out mining operations, no hardship would be caused if the petitioner is permitted to carryout mining operations in the allotted mining area."
85. From the above discussion, the action of the State Government in not issuing any notice to the affected parties can be termed as violative of principles of natural justice as the leases in the present case are statutory leases in favour of the petitioners under the provisions of Mines and Mineral (Development and Regulation) Act 1957, which legislation is enacted by the Union Government in pursuance of entry 54 of Seventh Schedule. It is to be further observed that the State Government has no power what-so-ever in passing the impugned G.O Rt. No. 723, Industries & Commerce (M-III) Department, dated 25.11.2009 as it is violative of principles of natural justice and therefore the said G.O. is liable to be set aside.
86. Further, in
xxxxxx If Parliament by its law has declared that regulation and development of mines should in public interest be under the control of the Union, to the extent of such declaration the jurisdiction of the State Legislature is excluded. In other words, if a Central Act has been passed which contains a declaration by Parliament as required by Entry 54, and if the said declaration covers the field occupied by the impugned Act the impugned Act would be ultra vires, not because of any repugnance between the two statutes but because the State Legislature had no jurisdiction to pass the law. xxxx
87. Further there is no power vested with the State Government to order for suspension of the mining operation unilaterally and to issue executive orders which runs contrary to the provisions of the Act & Rules. It cannot ignore or issue contrary to the Rules or the Act. For the above said principle support can be drawn from the judgment of the Apex Court in
(7) xxxxxxxx Thus under this article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. Similarly, Article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on Clause (1) further lays down that although with regard to the matter in the concurrent List the executive authority shall be ordinarily left to the State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also.
Neither of these articles contains any definition as to what the executive Junction is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the union on the one hand and the States on the other. They do not mean, as Mr. Pathak seem to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to Junction in respect to them.
On the other hand, the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Article 73 of the Constitution. Xxxxxxxxxxx
88. Admittedly, the Act 67 of 1957 falls within List-I of Entry 54 of Seventh Schedule which falls within the jurisdiction of the Central Government. The State Government has no power or authority to interfere with the matter except with the previous approval from the Central Government even to legislate on the subject which falls within the jurisdiction of Union Government. In the instant case, the impugned Order was issued by the State Government without the approval of Central Government. No record is placed before this Court by the State Government to show that it has obtained prior approval with regard to the issuance of the impugned G.O. Therefore, the impugned G.O.Rt. No. 723, Industries & Commerce (M-III) Department, dated 25-11-2009 suffers from the elements of jurisdiction as well as principles of natural justice and as such the same is not sustainable and is liable to be set aside to the extent of the petitioners only. Accordingly the same is set aside.
89. For the aforementioned discussion, the writ petition Nos. 25910 & 26083 of 2009 are allowed. There shall be no order as to costs.
