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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF
ANDHRA PRADESH
*****
W.P.(PIL) No.67 of 2018 Between:
Bathula Krishna .... Petitioner and
1.State of Andhra Pradesh rep. by its Principal Secretary, Industries and Commerce (Mines), Velagapudi, Amaravathi & Ors.
.... Respondents DATE OF JUDGMENT PRONOUNCED: 31.10.2018.
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE RAMESH RANGANATHAN AND HON'BLE MS. JUSTICE J. UMA DEVI
1. Whether Reporters of Local newspapers may ---- be allowed to see the Judgments?
2. Whether the copies of judgment may be marked -Yes- to Law Reports/Journals
3. Whether Their Ladyship/Lordship wish to see the -Yes- fair copy of the Judgment?
RAMESH RANGANATHAN, J 2 * HON'BLE SRI JUSTICE RAMESH RANGANATHAN AND * HON'BLE MS. JUSTICE J. UMA DEVI + W.P.(PIL) No.67 OF 2018 % Dated:31.10.2018 Between:
# Bathula Krishna .... Petitioner and $ 1.State of Andhra Pradesh rep. by its Principal Secretary, Industries and Commerce (Mines), Velagapudi, Amaravathi & Ors.
.... Respondents ! Counsel for Petitioner: Sri V.V. Satish, Learned Counsel.
^ Counsel for respondents: Sri C.V.Mohan Reddy, Learned
Senior Counsel for
Smt.Shobha.N., Learned Counsel
for 8th respondent.
G. P. for Mines and Geology (AP);
G.P. for Revenue (AP);
G.P. for Forests (AP);
Sri K.K.Durga Prasad,
Sri Manohar Reddy Mallasani
< GIST:
> HEAD NOTE:
? Citations:
1. (1997) 8 SCC 191
2. 1998 (3) ALD 716
3. AIR 1997 SC 1228
4. (2005) 8 SCC 534
5. (2004) 4 SCC 129
6. (2013) 7 SCC 226
7. (2002) 1 SCC 428
8. 1986 Supp SCC 517
9. (1997) 1 SCC 388
10. (1993) 2 SCC 703
11. 2010(2) ALD 789 (DB)
3
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
AND
THE HON'BLE MS. JUSTICE J. UMA DEVI
WRIT PETITION (PIL) No.67 OF 2018
ORDER: (per Hon'ble Sri Justice Ramesh Ranganathan)
In this Writ Petition, filed in public interest, a mandamus is sought to declare the action of the official respondents in allowing the 8th respondent to continue mining operations, despite his failure to comply with the conditions imposed by the 4th respondent in his proceedings dated 18.12.2014, as illegal and arbitrary; and to, consequently, direct the 2nd respondent to terminate the mining lease of the 8th respondent for non- compliance of the conditions imposed by the 4th respondent.
Facts, to the extent necessary, are that the 8th respondent made an application on 18.09.2009 for grant of lease of Laterite Mining Quarry in an extent of 20.17 Hectares in Sy. No. 532 of Thorada Village, H/o Sarugudu Panchayat, Nathavaram Mandal, Visakhapatnam District. The Tehsildar, Nathavaram, inspected the land on 16.11.2009 for which the 8th respondent had applied for a mining lease, and recorded notes of inspection, inter alia, stating that it is not forest land. The Divisional Forest Officer, Narsipatnam, in his letter addressed to the Assistant Director, District Survey & Land Records, Vishakhapatnam on 18.08.2012, clarified that the proposed leased area does not fall in the Reserve Forest areas of Narsipatnam Division, and is 2.34 km away from the nearest Sarugudu-I Reserve Forest boundary of Narsipatnam Division.
After the Government of Andhra Pradesh issued G.O. Ms. No. 2 dated 02.01.2013 prescribing uniform guidelines for issue of 4 NOC with respect to grant of mining lease and quarry lease etc, the Tahsildar, Nathavaram, inspected the land on 06.03.2013 for which 8th respondent had applied for a mining lease, and recorded his notes of inspection dated 06.03.2013, stating that there were no valuable trees on the land applied for quarry lease. The Revenue Divisional Officer, Narsipatnam, in his letter to the District Collector, Vishakhapatnam dated 26.09.2014, approved grant of mining lease to the 8th respondent stating that the land did not fall within the forest area, there were no big trees on the land, and a road was recently laid between Saduguru and Sundarakota villages. The District Collector, Visakhapatnam, vide letter addressed to the Assistant Director, Mines & Geology Department, Anakapalli on 18.12.2014, forwarded the proposal, for grant of mining lease to the 8th respondent, for necessary action as per G.O. Ms. No. 2, referring to the decision of the District Level Scrutiny Committee dated 24.11.2014 details of which shall be examined hereinafter.
The Mines and Minerals (Development & Regulation) Act, 1957 was amended on 10.02.2015. Section 10(A)(1), inserted thereto, stipulated that all applications, received prior to the date of commencement of the Amendment Act, 2015, shall become ineligible. The Ministry of Law & Justice, Government of India, in its notification in G.S.R./S.O. 423 (E) dated 10.02.2015, declared certain major minerals as minor minerals. The Government of Andhra Pradesh (Industries & Commerce (M.II) Department) issued G.O. Ms. No. 34 dated 14.03.2016 containing a list of 31 minerals that had been declared as minor minerals, for which power to 5 grant a mining lease was delegated to the Director of Mines & Geology, A.P. "Laterite" is at serial no. 20 in this list.
The Government of Andhra Pradesh (Industries & Commerce (M.II) Department) issued Memo No. 5307/M.II(1)/2016- dated 23.07.2016 directing all applications, received prior to the date of commencement of the 2015 Amendment Act, to be returned. Consequently the 8th respondent's pending application, for lease of Laterite Mining Quarry, stood returned. The Government of Andhra Pradesh (Industries & Commerce (M.II) Department) issued instructions in G.O. Ms. No. 107 dated 30.07.2016 in supercession of the orders issued in G.O. Ms. No. 2 dated 02.01.2013. These instructions removed the requirement of a District Level Scrutiny Committee.
The Director of Mines and Geology, vide Notice No.6615/R1- 3/2016 dated 23.09.2016, decided, in principle, to grant a quarry lease to the 8th respondent. The Deputy Director of Mines and Geology, vide letter dated 07.11.2016 approved the mining plan submitted by the 8th respondent. No condition for construction of a boundary wall was stipulated in the approved mining plan. The Ministry of Environment and Forests granted Environmental Clearance to the 8th respondent for the Laterite Mining Quarry vide letter dated 27.02. 2017. No conditions, for construction of a boundary wall or for payment of compensation for cutting trees, were stipulated in the environmental clearance certificate. The Andhra Pradesh Pollution Control Board, through its Zonal Office at Vishakhapatnam, issued Consent for Establishment to the 8th respondent for the Laterite Mining Quarry, under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 6 21 of Air (Prevention and Control of Pollution) Act, 1981 vide Order dated 24.03.2017, subject to the conditions mentioned in its Annexures. No conditions, for construction of a boundary wall or for payment of compensation for cutting trees, were stipulated in the Consent for Establishment Order.
The Director of Mines and Geology, vide Proceedings dated 12.04.2017, granted a quarry lease for Laterite for an extent of 20.17 Hectares in Sy. No. 532 of Thorada Village, H/o Sarugudu Panchayat, Nathavaram Mandal, Visakhapatnam District for a period of 20 years to the 8th respondent subject to satisfaction of the conditions mentioned in the appendix. The appendix did not contain any condition for construction of a boundary wall or for payment of compensation for cutting trees. The Assistant Director of Mines and Geology, Anakapalli, vide order dated 18.04.2017, permitted the 8th respondent to commence operations for quarrying Laterite over an extent of 20.17 Hectares in Sy. No. 532 of Thorada Village, H/o Sarugudu Panchayat, Nathavaram Mandal, Visakhapatnam District for a period of 20 years. On the same day, the 8th respondent also executed a lease agreement in Form G subject to certain conditions. No condition, for construction of a boundary wall or for payment of compensation for cutting trees, was stipulated in the lease agreement / Form G.
The Andhra Pradesh Pollution Control Board, through its Zonal Office at Vishakhapatnam, issued Consent for operations Order to the 8th respondent for the Laterite Mining Quarry, under Section 25/26 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21/22 of Air (Prevention and Control of Pollution) Act, 1981 vide Order dated 02.05.2017 subject to the 7 conditions mentioned in its Schedules. No condition, for construction of a boundary wall or for payment of compensation for cutting trees, was stipulated in the order granting Consent for operations.
It is the petitioner's case, in the affidavit filed in support of the Writ Petition, that the 8th respondent was granted a quarry lease for extraction of Laterite over an extent of Ac.49.85 cts in Sy. No.532 of Thorada of Sarugudu revenue village in Nathavaram Mandal, Visakhapatnam District, located adjacent to Sarugudu - I reserved forest; before a mining lease was granted in favour of the 8th respondent, the leased area consisted of thousands of trees of various kinds; the application, for grant of a mining lease, was referred to the District Level Screening Committee, Visakhapatnam for its proposal; the said committee, constituted in terms of G.O.Ms. No.2 Revenue (Assignment-I) Department dated 02.01.2013, consisted of a Chairman and six other members i.e., the Joint Collector, the concerned Revenue Divisional Officer, the Executive Engineer, A.P. Pollution Control Board, the District Forest Officer, the concerned Tahsildar, and the Assistant Director of Mines and Geology; the Committee, in its meeting held on 24.11.2014, resolved to recommend the proposal subject to certain conditions; the proposal was communicated to the Assistant Director of Mines and Geology vide proceedings of the District Collector dated 18.12.2014; certain conditions were prescribed i.e
(a) the buffer area, adjacent to the Reserve Forest, should be protected by constructing a compound wall, and mining operations should be caused without entering into the forest boundaries; (b) necessary permission should be obtained from the concerned 8 department for the removal/cutting of trees in the leased area; (c) after the value of the removed trees was assessed by the competent authority, the value of the trees should be remitted to the Gram Panchayat; the lessee was put on notice that any violation of the conditions would be viewed seriously, and the mining lease would be cancelled; on the basis of the approval granted by the 4th respondent, the 2nd respondent had granted a mining lease in favour of the 8th respondent; the 8th respondent did not comply with any of the said conditions, but was proceeding with mining operations; the 8th respondent had removed around 20,000 trees in the mining area, and around 5,000 trees for the purpose of formation of a connecting road, from the mining area to Sundarkota-Sargudu road, without obtaining permission from the concerned authority, and without obtaining a valuation certificate from the forest department; they did not deposit any amount with the Gram panchayat towards the value of the trees removed by them; the 8th respondent failed to comply with the other conditions regarding construction of a compound wall to protect the buffer area adjacent to the reserved forest; every day around 200 lorries were moving from the mining area; as no protection wall was constructed, animals in the Reserved Forest, coming towards the mining area, were being crushed under the wheels of vehicles carrying minerals; recently a bear, in the Reserved Forest, was crushed by one such vehicle causing its death; the petitioner had brought the aforesaid violations of the 8th respondent to the notice of the official respondents through his representations; no action was, however, taken against the 8th respondent for his failure to ensure compliance with the stipulated conditions, or to cancel his 9 lease for non-adherence to those conditions; the journalist, who was exposing the mining operations, was attacked at the behest of the 8th respondent; the Press Council of India had taken cognizance of the incident; the issue is pending before the Press Council; after a detailed enquiry the 4th respondent, keeping in view the welfare of wild life in the Reserve Forest as also the welfare of the Grampanchayat, had imposed the aforesaid conditions vide proceedings dated 18.12.2014; these proceedings showed that non-compliance of the conditions would lead to termination of the lease; the 4th respondent, being the authority competent to withdraw his NOC for non-compliance of the conditions imposed by it, was not taking action for cancellation of the mining lease, despite being aware that the conditions had not been complied with; and the action of the respondent, in allowing mining operations of the 8th respondent despite non-compliance of the stipulated conditions, was illegal and arbitrary.
In his counter-affidavit, the 3rd respondent-Assistant Director of Mines and Geology stated that the 8th respondent had filed an application for grant of mining lease for Laterite over an extent of 20.17 hectares in Survey No.532 of Thorada Village, hamlet of Sarugudu Panchayat, Nathavaram Mandal, Visakhapatnam District for a period of 20 years on 28.08.2009; the said application was referred to the Tahsildar, Nathavaram for a report on the classification and availability of the applied area; the Tahsildar, in his report dated 06.03.2013, stated that the quarry lease area was covered by GAP area (un-surveyed hill poramboke), the Assistant Director, Survey and Land Records had allotted new Survey Number as 532, and had approved the same after the 10 record was scrutinised by the Deputy Inspector of Survey; there were no historical monument traces, irrigation canals, high- tension lines etc; the forest boundary was at a distance of 2.4 K.M from the nearest Sarugu-1 Reserve Forest boundary; no assigned land was involved in the proposed area; a road existed from Sarugudu main village to Sundarakota village; the road for the proposed mining area had to be laid in government land; and to that effect a combined sketch was furnished.
The 3rd respondent further stated that, pursuant to the recommendations of the District Level Scrutiny Committee in its meeting held on 24.11.2014, the District Collector, Visakhapatnam, vide his proceedings dated 18.12.2014, had issued a no objection certificate as per G.O.Ms.No.2 dated 02.01.2013; proposals were forwarded on the basis of the recommendations made by the joint inspection team; certain conditions were stipulated by the said team; the 8th respondent was informed that the said conditions should be strictly adhere to; and any violation would be viewed seriously, and the mining lease would be cancelled.
The 3rd respondent also submitted that the President, Sarugudu Gram Panchayat had conducted a grama sabha which had passed a resolution on 28.01.2014 expressing no objection for grant of a mining lease in favour of the 8th respondent; the 2nd respondent, vide proceedings dated 12.04.2017, had granted a quarry lease in favour of the 8th respondent for Laterite over an extent of 20.17 hectares; the Assistant Director, Mines and Geology had, vide proceedings dated 18.04.2017, executed a quarry lease deed, and had issued work orders for the period from 11 18.04.2017 to 17.04.2037, subject to the outcome of the enquiry on the NOC from the District Collector, Visakhapatnam, as he had already obtained (1) an order of environmental clearance dated 27.02.2017, (2) consent for establishment from the A.P. Pollution Control Board on 24.03.2017 valid upto 24.03.2024, and (3) order of consent for operations from the A.P. Pollution Control Board dated 02.05.2017 valid upto 31.03.2022; as per the report of the 4th respondent, the leased area was not forest land, and was classified as hill poramboke; the mining lease area is covered by thick bushes and rocks; there were no big trees; as per the report of the District Forest Officer dated 18.08.2012, the proposed lease area in Thorada village was 2.34 K.M. away from the nearest Sarugudu-I reserve forest area from any corner; the forest department had not reported any objections regarding mining operations of the 8th respondent; a quarry lease was granted only after the gram sabha resolution dated 29.01.2014; the petitioner was one of the members of the gram sabha; a quarry lease was granted to the 8th respondent with the consent of the villagers of Thorada village; no representation was received from the petitioner in the office of the 3rd respondent; and the Writ Petition is not in public interest.
In his counter-affidavit the 5th respondent-Tahsildar, Nathavaram Mandal stated that the Assistant Director, Mines and Geology had called for a report on the classification and availability of land for grant of mining lease in favour of the 8th respondent; vide letter dated 16.11.2009, a report was furnished stating that the land was inspected on 06.11.2009, the area demarcated in the sketch was not forest land, and it was a rocky terrain not fit for 12 cultivation; he had recommended grant of a mining lease; proposals were later re-submitted by the Tahsildar on 06.03.2013 stating that the proposed area did not lie in the reserve forest area, and was at a distance of 2.34 K.M from the nearest Sarugudu-I reserve forest boundary; the Revenue Divisional Officer, Narsipatnam had also submitted a report to the District Collector, Visakhapatnam stating that the proposed mining area was covered with thickets, bushes and rocks and no big trees were there, and lease for Laterite mining could be granted; on the instructions of the District Collector, a joint inspection was conducted by the Revenue Divisional Officer and others on 07.05.2013; the District Level Screening Committee met on 24.11.2014, and communicated its decision to the Assistant Director, Mines and Geology, through the District Collector on 18.12.2014, prescribing certain conditions; the Director of Mines and Geology had granted a quarry lease in favour of the 8th respondent for a period of 20 years vide his proceedings dated 12.04.2017; and as per the interim orders of the High Court mining operations were stopped.
In his counter-affidavit, the 7th respondent-Divisional Forest Officer, Narsipatnam stated that, as per the joint inspection report dated 07.05.2013, the proposed mining area was 2.34 K.Ms away from the reserve forest; an animal census was conducted in Vedurupalli beat area of Sarugudu reserve forest in January, 2018; during census, the concerned field staff had reported the presence of wildlife in Sarugudu reserve forest; no request had been received either from the lease holder, or from the concerned authorities, regarding removal or cutting of trees in the lease area; after 13 verifying the record, the Divisional Forest Officer, vide letter dated 10.07.2012, had submitted his report stating that the proposed mining area fell in a hill top (un-surveyed hill poramboke) having an elevation of 628 meters, and was 2.34 K.Ms away from the Sarugudu Reserve Forest boundary; the proposed mining area is not in the reserve forest; it was having a tree growth of less than 0.4 density; no application was received from the lease holder or the concerned authorities, i.e the revenue department and the mining department, for removal or cutting of trees in the leased area; the lease holder and the concerned authorities had not approached the forest department for assessing the value of the existing tree growth; and no recent accidental death of any wild animal was reported at the office of the Divisional Forest Officer by the concerned Range Officer.
In his additional counter-affidavit the 7th respondent- Divisional Forest Officer, Narsipatnam stated that, as per the report of the Divisional Forest Officer dated 18.08.2012, the mining area was located 2.34 K.M. away from Sarugudu reserve forest; the density of vegetation was less than 0.4; as per classification of forest cover, by the Forest Survey of India, Dehradun, all lands with forest tree cover with a canopy density of between 10% to 39% are described as 'open forest'; all forest land with poor tree growth mainly of small or stunted trees, having canopy density of less than 10%, are described as 'scrub'; and as per the glossary of forestry terms, described in the Working Plan of Narsipatnam Forest Division for the period 2013-14 to 2022-23, when the canopy density is between 0.1 and 0.4 the vegetation type is 'open', and when the density is under 0.1 the forest type is scrub; no 14 recent incidents of accidental death of wild animals had been reported to the office of the Divisional Forest Officer by the concerned field staff of Narsipatnam Range or the public or officials of other departments; during January, 2018 census the concerned field staff had reported the presence of wildlife in Sarugudu reserve forest; no application had been received from the lease holder, or from the revenue and mining department officials, for valuation, removal or cutting of trees in the leased area; and, therefore, he was not aware of the alleged removal of vegetation or trees in the leased area.
The 7th respondent further stated that the District Collector, vide proceedings dated 28.09.2014, had accorded permission for diversion of 0.9741 hectares of forest land in favour of the Executive Engineer, Panchayat Raj Division, Narsipatnam for formation of a road from Sarugudu to Sundarakota; all the villagers were using this road ever sine its formation; in terms of G.O.Ms.No.532 dated 21.07.1975, the Revenue Divisional Officer, all Tahsildars and Deputy Tahsildars were required to perform the functions of Forest Officers, and compound forest offences committed in un-surveyed lands and registered poramboke lands at the disposal of the revenue department; the Revenue Department had not reported illegal removal of trees by the lease holder; the lease area, in question, is revenue land located 2.34 K.M away from Sarugudu reserve forest; the conditions mentioned in the proceedings dated 18.12.2014 were not communicated to the Divisional Forest Officer, Narsipatnam, and he is not aware of any such proceedings; no application was received for removal or cutting of trees in the leased area; whenever leases are granted in 15 areas outside the lands under the control of the Forest Department, and having tree growth, generally the concerned departments takes steps to clear the tree growth before handing over the leased area to the lease holder; as per G.O.Ms.No.1757 dated 17.09.1978, the forest department is entrusted with the sale of forest produce in Government lands; as per Section 4 of the Andhra Pradesh (Protection of Trees and Timber in Public Premises) Rules, 1989, no trees, timber, fuel, fodder etc. should be disposed without the written concurrence of the Divisional Forest Officer concerned; in the present case, no such action was taken by the revenue department before handing over land to the lease holder; the lease holder and the concerned authorities i.e. the revenue and mining departments did not approach the forest department for assessing the value of tree growth; and as the mining area is located outside the reserve forest, the forest department is not aware of the irregularities allegedly committed by the lease holder.
In his counter-affidavit, the 8th respondent stated that the proceedings of the District Collector dated 18.12.2014 is not the basis for grant of mining lease to him; the petitioner was aware of the same despite which he made false statements; the petitioner was earlier working for him, and he used to pay for the services rendered by the petitioner; since his services were not satisfactory, he was not engaged thereafter; the Writ Petition is lacking in bona-fides; the petitioner is also involved in criminal cases, registered in Nathavaram Police Station, for cheating, forgery and for other offences in Crime Nos.5 of 2017 and 60 of 1997; the petitioner has made false assertions and is liable for perjury; 16 Laterite mineral was a major mineral till January, 2015; however, by virtue of the amendment to the MMRD Act dated 23.07.2016, it became a minor mineral; consequently grant of mining lease is under a different legal regime i.e the A.P. Minor Mineral Concession Rules, 1966; when the said mineral was a major mineral, by virtue of the provisions of the MMRD Amendment Act, all applications pending with the authorities, including his application, for grant of leasehold rights for major minerals stood rejected; a fresh application was made under the A.P. Minor Mineral Concession Rules, 1966 based on which a lease was granted vide proceedings dated 12.04.2017; after complying with the conditions in the grant order, Form-G agreement was executed on 18.04.2017; he has complied with the conditions of the grant order, and the conditions contained in the statutory lease in Form- G; it is not even the petitioner's case that the 8th respondent had violated either of these orders i.e. the grant order or the lease conditions; reliance placed on the proceedings dated 18.12.2014 is misplaced as it was issued long prior to the amendment to the MMRD Act; it does not form the basis for grant of a lease in favour of the 8th respondent; it has lost its relevance since the petitioner's earlier application, for grant of a mining lease, stood rejected by operation of law; the lease area is 2.34 k.m. away from the forest boundary; the petitioner has falsely alleged that it is close to the reserve forest area; the allegation that the reserve forest is a habitat for many wild animals is also false and is, in any event, vague; the petitioner has not even specified the kind of wild animals which allegedly inhabit the forest area; at any rate since the forest is 2.34 K.M. away, the mining activity would not have 17 any impact on wild animals; the allegation that the lease area had thousands of trees of various kinds is false; the reports of the officers clearly show that the leased area consists of shrubs and bushes; G.O.Ms.No.2 was subsequently amended vide G.O.Ms.No.107 dated 30.07.2016; G.O.Ms.Nos.2 and 107 did not authorize the District Collector to impose any conditions, and at any rate the proceedings of the District Collector dated 18.12.2014 has nothing to do with the lease granted to the 8th respondent; the Principal Chief Conservator of Forests had issued clarification, vide proceedings dated 09.12.2003, regarding the buffer zone between the mining area and the reserve forest; there is no concept of buffer zone to a reserve forest; keeping in view the clarification of the forest department, the grant order did not rightly impose any condition as suggested by the District Collector; the allegation that he had removed 20,000 trees for the purpose of mining, and 5000 trees for formation of a road, is false; he had not cut any tree; the allegation that 200 lorries were moving from the mining area was also false; and only 15 to 20 lorries move the mineral from the mining area every day.
The 8th respondent would further submit that the allegation that a journalist was attacked at his behest is false; While Crime No.32 of 2017 was registered against five persons, his name was not mentioned either in the FIR or in the charge-sheet; the allegation that a bear died under the wheels of a vehicle is false; no case was registered either in the Police Station or brought to the notice of the forest department; the photographs filed by the petitioner are not clear, and could have been morphed; no such incident took place; the Department of Mines and Geology issued 18 notice dated 23.09.2016 directing him to submit a mining plan approved by the Deputy Director of Mines and Geology, along with consent for establishment from the A.P. Pollution Control Board and Environmental clearance from the Ministry of Environment and Forests within six months; he had, accordingly, submitted the mining plan approved by the Deputy Director of Mines and Geology, Visakhapatnam vide letter dated 07.11.2016, environmental clearance approved by the Ministry of Environment Forest and Climate Change, Hyderabad vide letter dated 27.02.2017, and the consent for establishment approved by the A.P. Pollution Control Board, Visakhapatnam vide letter dated 24.03.2017; after submission of these documents, the 2nd respondent issued proceedings dated 12.04.2016 granting quarry lease for Laterite over an extent of 20.17 hectares; he executed a lease deed in Form-G with the 3rd respondent who issued proceedings dated 18.04.2017 directing him to submit consent for operations order from the A.P. Pollution Control Board, before commencing quarrying operations; the order of consent for operations was submitted, vide letter dated 02.05.2017, to the third respondent before commencement of quarrying operations; and the District Collector had issued a no objection certificate dated 07.05.2017.
The 8th respondent also stated that, after commencement of the mining operations, he had laid a road, for a length of 2.75 K.M, from the mining area to Sundarkota - Sarugudu road; it was false to state that trees were cut for laying the road; only shrubs and bushes were removed; as per the directions of the mining department, he had planted 3000 trees on both sides of the road; 19 he had planted 12000 trees (of which 6700 trees were supplied by the Department of Forests, Narsipatnam) around the mining area by arranging water facility through drip irrigation; the letter of the Forest Section Officer dated 21.08.2017, and the photographs of plantations and water tanks were being filed; the petitioner had made several unfounded allegations, contrary to the inspection carried out much prior to the lease, only to blackmail and exploit the 8th respondent; the lease was granted with the consent of the Gram Panchayat, of which the petitioner is a member; the petitioner made a false complaint in the name of Ganga Raju who, on enquiry, stated that his signature was forged; Sri Ganga Raju gave a complaint to the Nathavaram Police Station stating that the petitioner had forged his signature; he (i.e the 8th respondent) has deployed heavy machinery at the quarrying area paying huge rentals for the said equipment; more than 300 persons were working in the quarry area; they are deprived of their livelihood because of stoppage of quarrying operations; he had contractual commitments to third parties for supply of laterite minerals; if quarrying operations were not started, it would result in breach of trust and contractual commitments; he was paying seigniorage fee of Rs.10 crores per annum, besides income-tax and GST to the government regularly; stoppage of work would also result in loss of revenue to the Government; and the interim order should therefore be vacated and the Writ Petition should be dismissed.
In the affidavit, filed in reply to the counter-affidavit filed by the 3rd respondent, the petitioner stated that the 1st respondent issued G.O.Ms. No.2 dated 02.01.2013 appointing the District Level Scrutiny Committee to grant no objection to the proposed 20 mining leases; this G.O. was in force till it was superseded by G.O.Ms. No.107 dated 30.07.2016; when G.O.Ms. No.2 dated 02.01.2013 was in force, the 8th respondent made his second application on 30.05.2016, and on the very next day i.e. 31.05.2016 the 3rd respondent had directly submitted his proposal to the 2nd respondent recommending grant of quarry lease; the authorities had taken NOC dated 28.01.2014 issued by the Grampanchayat, and the NOC dated 18.12.2014 issued by the District Level Scrutiny Committee, into consideration and had processed the application of the 8th respondent; except the NOC issued by the DLSC, there is no other NOC in existence with respect to the subject mining area; the District Collector, Visakhapatnam had submitted a report confirming the correctness of the DLSC proposal vide letter dated 18.05.2017; the conditions, imposed in proceedings dated 18.12.2014, would form part of the conditions of the grant; the 8th respondent is obligated to obey the conditions stipulated by the District Level Scrutiny Committee; the 8th respondent had failed to fulfil any of the said conditions; he had cut the trees, and had removed the thicket bushes without obtaining prior permission, and he had failed to pay compensation; existence of trees is recorded in the mining plan; the District Level Committee had taken into consideration all factors, particularly that the mineral had to be transported through the road adjacent to the reserve forest, and had imposed the conditions with a view to protect the forest and the wild life; a portion of the road passes through Sarugudu reserve forest, and comes out of the Reserve forest at the end of Sarugudu Reserve Forest boundary; the authorities had, therefore, permitted the 8th respondent to form a 21 road to Sundarakota connecting the road at the end point of the Reserve forest; the entire area, at the right hand side of the "Y" junction, is the reserve forest; the left hand side road leads to Sundarkota; as the mineral had to be transported through the road passing adjacent to the reserve forest boundary, construction of a compound wall was essential; the 8th respondent is transporting mineral through Sarugudu Reserve Forest unlawfully; the 8th respondent is put to strict proof of his contention that he had planted 3000 trees on both sides of the road, and has planted 12000 trees in the mining area; Sri Gangaraju, having complained against the 8th respondent, could not withstand the harassment meted out to him by the 8th respondent; the 8th respondent was idle till he obtained a mining lease, and the question of his providing employment to others does not arise; the 8th respondent is a resident of Visakhapatnam, and the very fact that the counter- foils produced by him belong to Kakinada falsifies his version; the petitioner has 3½ acres of cashew garden; the money transactions into his account were in respect of the sale of cashew to M/s.Pavan Kumar Agency at Kakinada; the 8th respondent had obtained counter-foils from M/s.Pavan Kumar Agency, and had cooked up a false story; he got a false criminal case foisted against the petitioner in Cr. No.5 of 2017; the said complaint was closed before the Lok-Adalat; the Writ Petition is filed only in public interest, and the petitioner has no personal interest in the matter; he has no personal grudge or animosity against the 8th respondent; when NOC was granted, the petitioner was not a member of the Grampanchayat; the consent of the Grampanchayat was obtained by mis-representation stating that the mining area is situated at a 22 distance of 2.4 kilometres from the residential area of Thorrada village; the mining area falls within 800 metres from the village; the 8th respondent has used excavators to remove and load the minerals into trucks; and the very fact that the 8th respondent produces 7½ lakh tonnes of Laterite every year falsifies his contention of transporting mineral only with 15 to 20 lorries per day.
In his affidavit, filed in reply to the counter-affidavit filed by the 3rd respondent, the petitioner stated that location of the mining area was suppressed, and the resolution of the Gram Panchayat was obtained misrepresenting facts to the general body; the gram- panchayat was led to believe that the mining area is located at a distance of 2.5 kilometres, while it is located only at a distance of 700 metres; as per the Toposheet prepared by the department of Survey of India, the area in Torrada village is classified as Dense Mixed Jungle; as per the definition provided by the Forest Survey of India, all lands with a forest cover of trees, with a canopy density of 40-69%, fall within the category of dense forest; it is therefore not true to state that there are no trees in this area; the District Forest Officer is also a member of the District Level Scrutiny Committee; and the conditions imposed by the Committee, as well as the conditions imposed by the Forest Department, necessitated compliance.
I. ARE THE CONDITIONS, IMPOSED IN THE NOC PROCEEDINGS DATED 18.12.2014, MANDATORY?
Sri V.V. Satish, Learned Counsel for the petitioner, would submit that Rule 12(5)(a)(i) of the A.P. Minor Mineral Concession Rules, 1966 (the "1966 Rules" for short) recognizes the 23 requirement of an NOC; though the Rules do not prescribe a detailed procedure for grant of NOC, executive instructions have been issued to fill up this gap; in the exercise of its powers under Rule 9-S of the 1966 Rules, the State government had issued G.O.Ms.No. 181 dated 28.5.1998 prescribing the procedure to issue an NOC; G.O.Ms.No.2 dated 2.1.2013 was issued thereafter appointing the DLSC, in the place of the Tahsildar, to grant NOCs; the NOC is a statutory requirement, and is mandatory for the mining lease application to be processed; there is no provision, either in the 1966 Rules, or in the executive instructions, restraining the NOC issuing authority i.e the District Level Scrutiny Committee (in short the DLSC) from imposing conditions while granting NOC; as the DLSC has been appointed to perform the statutory function of granting an NOC, it is entitled to impose conditions for such grant in the absence of any restriction; the 8th respondent was well aware that his application, for grant of a mining lease, was processed on the basis of the NOC granted by the DLSC; the order of grant, and the lease orders dated 12.04.2017 and 18.4.2017 respectively, were issued subject to the outcome of the enquiry in respect of the NOC; the present mining lease is covered by the NOC passed under G.O.Ms.No.2 only; the conditions imposed by the DLSC should be read as part of the conditions imposed under the grant and the lease proceedings; violation of the said condition would result in termination of the lease under Rule 12(1)(5)(h(xii) of the 1966 Rules; and the 8th respondent had failed to comply with the conditions imposed by the DLSC, in its proceedings dated 18.12.2014, to safeguard the environment, particularly to restrict exploitation of trees, to save 24 wildlife and to compensate the gram panchayat for the loss of trees.
On the other hand Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on behalf of the 8th respondent, would submit that, when the 8th respondent's earlier application dated 18.09.2009 was under process, the Tahsildar was authorized to issue the NOC; the Government of Andhra Pradesh issued G.O.Ms.No.2 dated 02.01.2013 prescribing guidelines for grant of NOC by the DLSC; the DLSC granted a No objection Certificate, vide proceedings dated 18.12.2014, subject to certain conditions; the NOC is not contemplated either under the 1957 Act or the 1966 Rules; it is merely an administrative arrangement to ascertain whether Govt. land, over which lease is sought, is available for lease or not; NOC is an internal departmental affair, without the intervention/ knowledge of the applicant who has sought grant of lease; the proceedings of the DLSC were neither communicated to the 8th respondent nor is it referred to in any consequential /subsequent proceedings; the Government of India promulgated the Mines and Minerals (Development and Regulation) Act, 2015 on 12.01.2015; 31 minerals were deleted from the list of major minerals, and included in the list of minor minerals by Notification No S.O 423(E) dated 10.02.2015 under Section 3(3) of the 1957 Act; Laterite, which was hitherto a major mineral, has, by virtue of the above notification, become a minor mineral; by virtue of the amendment to the 1957 Act, all pending applications, excluding those where a letter of intent (LOI) was issued, stood rejected; thereafter the State Government issued GO.MS No. 56 dated 31-04-2016, amending the 1966 Rules, 25 requiring all applicants for mining leases to apply afresh wherever the mineral has become a minor mineral; G.O.Ms.No.2 dated 02- 01-2013 was preceded by G.O.Ms. No.181 dated 28-05-1998; both of them are administrative instructions issued by the Government of A.P. to facilitate easy processing of applications for grant of mining leases relating to government lands i.e. to ascertain whether the land has any encumbrances like assignment or forest land etc; there is no statutory basis for the said G.Os; under G.O Ms. No 181 dated: 28-5-1998, it was the Tahsildar who alone could grant an NOC; the Government of Andhra Pradesh issued G.O.Ms.107 dated 30.07.2016 superseding G.O.Ms.No.2 dated 02.01.2013, providing for a new procedure for grant of NOC to lease applications; one significant change was that the Tahsildar was given authority to grant NOC dispensing with the DLSC; in respect of revenue lands, adjoining or within 500 meters distance from the reserve forest boundary, the Tahsildar was required to issue NOC only after a no objection report was obtained from the concerned Divisional Forest Officer; the application of the 8th respondent was processed, and an order of grant was issued by the Director of Mines and Geology on 12.04.2017; the Grant order does not reflect the conditions mentioned in the proceedings of the DLSC; the 8th respondent is bound by the Grant Order and the statutory lease agreement in Form-G executed on 18.4.2017; and even if the proceedings of the DLSC dated 18.12.2014 is assumed to apply to the 8th respondent's mining lease, these conditions did not form part of any of the statutory proceedings issued later, which alone are binding on the 8th respondent.
26
By his proceedings dated 18.12.2014, the District Collector, Visakhapatnam informed the Assistant Director of Mines and Geology, Anakapalli that the application of the 8th respondent, for grant of quarry lease for extraction of laterite in an extent of Ac.49.85 cents of Thorada of Sarugudu revenue village, was forwarded; the Assistant Director of Mines and Geology had called for a report on the classification and availability of the area applied; and the Tahsildar, Nathavaram had, by proceedings dated 06.03.2013 and 27.04.2013, reported that the quarry lease area was an un-surveyed hill poramboke, the Assistant Director, Survey and Land Records, had allotted new survey number as 532 and had approved the same after scrutinizing the records, there were no historical monument traces, irrigation canals, H.T. Lines etc, the forest boundary was at a distance of 2.4 K.M. from the nearest Sarugudu-1 reserve forest boundary, a road already existed from Sarugudu to Sundarakota village, however the road for the proposed mining area had to be laid, and to that effect a combined sketch was being furnished.
The District Collector further stated that a joint inspection was conducted on 07.05.2013 by the Revenue Divisional Officer, Narsipatnam, the Divisional Forest Officer, Narsipatnam and the Assistant Director, Mines and Geology, Anakapalli; their report revealed that the proposed extent was covered in Survey No.532; the village was 2.34 K.Ms away from the nearest Sarugudu-1 reserve forest boundary in any corner; the proposed mining area was between latitude 17.52067 to 17.51889 and longitude 82.35364 to 82.35364 with small alterations; no assignment was granted in the proposed lease area, or in surrounding areas, as it 27 was covered by hill ranges; there were no historical monuments; the 8th respondent had filed an application on 18.09.2009; before that, there were no applications pending; it was a first priority application of the applicant; basing on the recommendations of the joint inspection team and field level officers, and the Grama Sabha resolution, the proposals were being forwarded with a direction to take necessary action as per the provisions issued in G.O.Ms.No.2 as decided in the DLSC held on 24.11.2014 at the Collector's Office, Visakhapatnam:-
i) the Buffer area adjacent to the Reserve Forest should be protected by constructing compound wall and carryout the mining operations without entering into the forest boundaries;
ii) Necessary permission has to be obtained from the concerned Department for the removal/cutting of trees in the leasing area;
iii) Also direct the concerned applicant that after assessing the value of the removed trees by the competent authority i.e. Forest and Horticulture Department, and arrived tree value should be remitted to the Gram Panchayat;
iv) The road necessary for transportation should be formed by the applicant. It also shall be maintained by him with his own expenditure with the following conditions:
a) The road should be constructed under the close supervision of mining department;
b) After completion of road, the same may be handed over to the Gram Panchayat with absolute rights and other conditions if any required may also be stipulated while according permissions to the applicants;
c) The applicant should not claim exclusive right on the road and other villagers should also be allowed to utilize the road on par with the applicants without any difference;
d) The applicant should not trespass in the Government land in the vicinity in anyway; else appropriate action will be initiated against the applicant;28
e) The conditions imposed by the authorities concerned should be strictly adhere to. Violation of any conditions will be viewed seriously and if noticed any, the mining lease will stand cancelled.
A copy of the reports of the Tahsildar, Nathavaram and the Revenue Divisional Officer, Narsipatnam, and the joint inspection report were forwarded for taking further action.
While considering the questions whether the conditions imposed by the District Collector, Visakhapatnam, in his NOC letter dated 18.12.2014, are binding on the petitioner, and whether such conditions have statutory sanction, it is necessary to refer to certain statutory provisions, executive instructions and other orders issued by Government officials. Section 3(e) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter called the "1957 Act") defines 'minor minerals' to mean, among others, any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral. Section 10 relates to the application for a prospecting licence or a mining lease and, under sub-section (1) thereof, an application for a reconnaissance permit, prospecting licence or mining lease, in respect of any land in which the minerals vest in the Government, shall be made to the State Government concerned in the prescribed form and shall be accompanied by the prescribed fee. Under Section 10(3), on receipt of an application under Section 10(1), the State Government may, having regard to the provisions of the Act and any Rules made thereunder, grant or refuse to grant the permit, licence or lease. Section 10-A was inserted in the 1957 Act by Act 10 of 2015 with retrospective effect from 12.01.2015. The said provision relates to the rights of existing concession-holders and applicants. Under sub-section (1) thereof, 29 all applications, received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 shall become ineligible. Consequently, the application submitted by the 8th respondent earlier on 18.09.2009, for grant of a mining lease, stood cancelled.
The Secretary to the Government (Mines & FP) informed the Director of Mines and Geology, by memo dated 23.07.2016, that the Government of India had amended the 1957 Act on 10.02.2015 (by Act No.10 of 2015); Section 10 of the said Act was amended and Section 10-A(i) was inserted stating that all applications received prior to the date of commencement of the Amendment Act, 2015, shall become ineligible; the Government of India had issued notification, in S.O.No.423(E) dated 27.03.2015, declaring certain major minerals as minor minerals; the powers, regarding granting mining leases, were delegated to the Director of Mines and Geology and, accordingly, the relevant rules were amended vide G.O.Ms. No.56 dated 30.04.2016; the Government had decided that applications, received prior to the date of commencement of the Amendment Act, 2015 for grant of prospecting licence/mining lease, should be returned to the applicants informing them of the changed position of law, and asking them to re-submit their applications; and, upon re-submission, to process them in accordance with the provisions of the 1957 Act and the 1966 Rules.
Rule 9(S) of the 1966 Rules stipulates that the Government shall be the authority to issue clarifications/guidelines or relaxation orders from time to time, in the implementation of the 1966 Rules. The Government of Andhra Pradesh issued G.O.Ms. 30 No.181 dated 28.05.1998 giving detailed instructions for expeditious disposal of the prospecting licence/mining lease and quarry lease applications. Para 2 of the said G.O. required the Assistant Director of Mines and Geology, immediately after receipt of the application, to acknowledge its receipt, fix a date for inspection, and send one set of applications to the Mandal Revenue Officer concerned to report on the category of the land, and availability of the land, for grant of prospecting licence/mining lease or quarry lease. Para 3 required the Mandal Revenue Officer (Tahsildar) to send his report to the Assistant Director of Mines and Geology within a period of 30 days, duly marking a copy of the said report to the District Collector.
The executive instructions in G.O.Ms.No.181 dated 28.05.1998 were superseded by G.O.Ms.No.2 dated 02.01.2014 whereby uniform detailed guidelines were prescribed for a No Objection Certificate to be issued in respect of licenses for mining leases and quarry leases in relation to government lands. The Assistant Director of Mines and Geology was required to receive applications as per the procedure in vogue. Para 6(i) of G.O.Ms.No.2 required a joint inspection team, consisting of the Revenue Divisional Officer, the Divisional Forest Officer and the Assistant Director of Mines and Geology, to inspect the proposed land and submit a detailed report to the District Collector within 30 days of receipt of the application for grant of mining lease/quarry lease. Para 6(vi) required a District Level Screening Committee to be constituted under the Chairmanship of the District Collector, and to consist of several officials, including the District Forest Officer as a member, and the Assistant Director of 31 Mines and Geology as the member-convenor. This committee was required to meet once every 60 days, scrutinize the report of the joint inspection team, take a decision on the issue of NOC, and forward its decision to the Director, Mines and Geology for necessary action.
The Director of Mines and Geology submitted a proposal to the Government to make certain modifications to the orders issued in G.O.Ms.No.2 dated 02.01.2013 regarding the No Objection Certificate. Pursuant thereto, the Government issued G.O.Ms.No.107 dated 30.07.2016 in furtherance of the objective of expediting disposal of mineral concession applications, and in supersession of the orders issued in G.O.Ms.No.2 dated 02.01.2013. Para 6 of G.O.Ms.No.107 dated 30.07.2016 required the Assistant Director of Mines and Geology, immediately after receipt of the application, to fix a date for inspection, survey and demarcation of the area applied for, and to send one set of applications to the Tahsildar concerned to report on the category of the land and availability of the land for grant of leases. Para 6(ii) required the Tahsildar to send his report to the Assistant Director of Mines and Geology within a period of 30 days, duly marking a copy of his report to the District Collector. Para 6(iii) stipulated that, in respect of revenue lands adjoining or within 500 mts distance from the reserve forest boundary, the Tahsildar shall issue NOC after obtaining a no objection report from the Divisional Forest Officer concerned. Para 6(v) stipulated that, if the District Collector is in agreement with the report of Tahsildar, there is no need to make any further report to the Director/Deputy Director of Mines and Geology; however, if the District Collector disagrees with 32 recommendations of the Tahsildar, he should send his recommendations to the Director/Deputy Director of Mines and Geology within 30 days from the date of receipt of the report from the Tahsildar; and, in case no report is received from the District Collector within 30 days, it would be assumed that the Collector has no objection to the grant of mineral concession. Para 6(vi) required the Assistant Director of Mines and Geology to submit his report, along with the recommendations of the Tahsildar, to the Director/Deputy Director of Mines and Geology, within 15 days from the date of receipt of the report from the Tahsildar. Para 6(ix) stipulated that, in respect of areas falling in the forest, the Assistant Director of Mines and Geology should submit proposals to the Director of Mines and Geology with technical observations of the area applied for, with 9 sets of applications as per the Forest Conservation Act, 1980. The Director of Mines and Geology was obligated to forward the statutory proformae to the Principal Chief Conservator of Forests, so as to enable the applicant to obtain forest clearance under the Forest Conservation Act, 1980. The Principal Chief Conservator of Forests was required to make his recommendations to the Government within a period of 30 days. Para 6(x) required the Director/Deputy Director of Mines and Geology either to pass orders granting lease or make recommendations to the State Government/Director of Mines and Geology depending upon the delegation of powers within a period of 30 days. While making recommendations, the Director/Deputy Director of Mines and Geology were required to take note of the opinion of the Collector on the recommendations of the Tahsildar, if any such opinion was received. If no opinion of the Collector was 33 received, the Director/Deputy Director of Mines and Geology was required to pass orders or make his recommendations to the Government on the basis of the report of the Tahsildar.
Rule 12 of the 1966 Rules relates to grant of lease. Rule 12(5)(a)(i) stipulates that a prospecting license or a quarry lease for minor minerals, mentioned at Serial No.18 to 48 in Schedule-I of Rule 10, shall be granted by the Director, Mines and Geology on an application made to the Assistant Director of Mines and Geology concerned in Form-N or P, and each application to be accompanied by a sketch drawn to scale demarcating the boundaries duly signed by the applicant and by a qualified surveyor. A non- refundable application fee and deposit of Rs.25,000/- was required to be made. The deposit amount was refundable when the application was rejected on technical grounds like non-availability of area or rejection of No Objection Certificate. Schedule - I, under Rule 10 of the 1966 Rules, contains a list of minor minerals, and at Serial No.37 thereof is 'Laterite' which is the mineral for which a mining lease was granted in favour of the 8th respondent.
Rule 12(5)(i)(h) of the 1966 Rules prescribes the conditions of licence or lease. Clause (xii) thereunder stipulates that, in case of any breach on the part of the licensee or lessee of any covenant or conditions contained in the grant, the Director may, after giving an opportunity to the defaulter, determine the licence or lease and take possession of the premises under licence or lease, and forfeit the security deposit. Clause (xii) would be attracted only if the 8th respondent is held to have acted in breach of any of the provisions or conditions contained in the grant.
34
By his proceedings dated 12.04.2017, the Director of Mines and Geology, in the exercise of the powers conferred under Rule 12(5)(a)(i) of the 1966 Rules, granted a quarry lease for laterite over an extent of 20.170 hectares in Survey No.532 of Thorada Village to the 8th respondent for a period of 20 years subject to the outcome of the enquiry on the NOC by the District Collector, Visakhapatnam, and subject to fulfillment of the conditions mentioned in the appendix enclosed to the order. The 8th respondent was informed that the grant was liable for cancellation if it was grossly inequitable or was made under a mistake of fact or owing to mis-representation or fraud or in excess of authority. The conditions stipulated in the NOC of the District Collector dated 18.12.2014 are not among the conditions stipulated in the appendix to the grant order.
A Lease agreement, in Form-G, was entered into on 18.04.2017 between the Government of Andhra Pradesh and the 8th respondent whereby quarry lease was granted over an extent of 20.17 hectares of land for extraction of Laterite mineral for a period of 20 years from 18.04.2017 to 17.04.2037. While several conditions are stipulated in the lease agreement, none of the conditions stipulated in the NOC letter of the District Collector dated 18.12.2014 are imposed therein.
By his proceedings dated 18.04.2017, the Assistant Director, Mines and Geology informed the 8th respondent that the Director of Mines and Geology had granted a quarry lease for laterite vide proceedings dated 12.04.2017; the grantee had submitted all statutory documents by his letter dated 18.04.2017; the 8th respondent was permitted to commence quarry operations for 35 laterite subject to the outcome of the enquiry on the NOC from the District Collector, Visakhapatnam and submission of CFO from the A.P. Pollution Control Board, and as per the provisions contained in the 1966 Rules; the lessee should maintain all records and accounts in the forms prescribed by the Government; and the special conditions specified in the Annexure to the grant order should be fulfilled by the lessee.
While the order of grant is dated 12.04.2017, it is not even contended by the petitioner that any of the conditions in the grant have been violated by the 8th respondent. On the other hand, it is his case that the conditions stipulated in the No Objection Certificate issued by the District Collector dated18.12.2014 has been violated.
As noted hereinabove, the 8th respondent had submitted an application for grant of mining lease earlier on 18.09.2009. The entire exercise of inspection and survey was undertaken pursuant thereto, the matter was placed before the DLSC thereafter, and its recommendations are those referred to in the proceedings of the District Collector dated 18.12.2014. The fact, however, remains that, as a consequence of the amendment to the 1957 Act and insertion of Section 10-A therein with retrospective effect from 12.01.2015, the 8th respondent's application for grant of mining lease dated 18.09.2009 stood rejected. The 8th respondent, thereafter, submitted a fresh application on 30.05.2016.
It is no doubt true that, when the 8th respondent made the fresh application on 30.05.2016, G.O.Ms.No.2 dated 02.01.2013 was still in force as G.O.Ms.No.107, which superceded G.O.Ms.No.2, was issued thereafter on 30.07.2016. However, by 36 the time the Director of Mines and Geology granted a quarry lease vide proceedings dated 12.04.2017, and a lease agreement in Form-G was entered into on 18.04.2017, G.O.Ms.No.107 dated 30.07.2016 had already come into force superceding the earlier G.O.Ms.No.2 dated 02.01.2013. G.O.Ms.No.107 dated 30.07.2016 conferred power on the Tahsildar to cause an inspection, and to submit a report to the Assistant Director of Mines and Geology. The said G.O. substituted the Tahsildar as the NOC issuing authority in the place of the DLSC. The No Objection Certificate, issued by the Tahsildar, is for grant of a mining lease to the eligible applicant. It enables the Director of Mines and Geology to grant a mining lease and execute a lease agreement with the lessee permitting the latter to quarry minor mineral. The executive instructions issued in G.O.Ms.No.2 dated 02.01.2013 required a joint inspection team to cause an inspection and submit its report to the District Collector. The DLSC was required to scrutinize the joint inspection report, and take a decision regarding grant of NOC. G.O.Ms.No.2 dated 02.01.2013 related to grant of NOC in respect of government lands. It did not specifically confer any power to prescribe conditions for grant of NOC. Since a mining lease is granted only on the lessee obtaining environmental clearance, consent for establishment and consent for operations from the Pollution Control Board, it is debatable whether the DLSC can impose any further conditions, more so in the absence of any specific provision in this regard in G.O.Ms.No.2 dated 02.01.2013. In any event, by the time a lease was granted to the 8th respondent, and a lease agreement was executed in his favour, G.O.Ms.No.2 dated 02.01.2013 stood superceded by G.O.Ms.No.107 dated 37 30.07.2016. We find considerable force in the submission of Sri C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the 8th respondent, that the proceedings of the District Collector dated 18.12.2014, granting a conditional NOC in terms of G.O.Ms.No.2 dated 02.01.2013, ceased to have any application after the amendment to the 1957 Act with effect from 12.01.2015, and on G.O.Ms.No.107 dated 30.07.2016 coming into force.
The Director of Mines and Geology granted a quarry lease in favour of the 8th respondent, vide proceedings dated 12.04.2017, subject to the outcome of the enquiry on the NOC by the District Collector. The Assistant Director of Mines and Geology, in his letter addressed to the 8th respondent on 18.04.2017, had also observed that the permission granted to the 8th respondent, to commence quarrying operations for Laterite, was subject to the outcome of the enquiry on the NOC by the District Collector. While neither of the aforesaid proceedings disclose what the enquiry on the NOC by the District Collector related to, it does appear from the material on record that the enquiry was caused on the complaint of Sri B.Ganga Raju who had requested that no mining lease be granted to the 8th respondent, as it would affect the rights of tribals. Pursuant thereto, the Director of Mines and Geology appears to have addressed a letter dated 31.03.2017 requesting the District Collector to enquire into the contents of the petition filed by Sri B.Ganga Raju. It is only on 08.05.2017 that the District Collector appears to have submitted his report to the Director of Mines and Geology stating that the petition filed by Sri B. Ganga Raju is fake; the allegations mentioned in the petition were also not truthful; proposals, for grant of mining lease in 38 favour of the 8th respondent, were being sent following the guidelines issued in G.O.Ms.No.2 dated 02.01.2013; and further action may be taken in the matter. By the time the District Collector sent his letter on 08.05.2017, the Director of Mines and Geology had already granted the quarry lease on 12.04.2017, and a lease agreement had also been entered into with the 8th respondent on 18.04.2017. It does appear that reference in the grant order dated 12.04.2017, to the outcome of the enquiry on the NOC by the District Collector, is the enquiry which was required to be caused on the complaint of Sri B. Ganga Raju which the District Collector, in his proceedings dated 08.05.2017, has held to be fake.
In his report dated 08.05.2017 the District Collector has, however, referred only to the earlier proposal and to the recommendations made by him under G.O.Ms.No.2 dated 02.01.2013 which does appear to indicate that the District Collector was also of the view that the conditions imposed in the proceedings dated 18.12.2014, which was issued in terms of the executive instructions issued in G.O.Ms.No.2 dated 02.01.2013, should be complied with. It is relevant, in this context, to note that the proceedings dated 18.12.2014 was addressed by the District Collector to the Assistant Director of Mines and Geology; and, while a copy thereof was marked to the Revenue Divisional Officer, the Tahsildar and the Director of Mines and Geology, the said letter was not communicated to the 8th respondent. Further, neither in the order of grant dated 12.04.2017, nor in the lease agreement executed on 18.04.2017, is there any reference to the conditions imposed in the proceedings of the District Collector 39 dated 18.12.2014. It does appear that the Director of Mines and Geology, while granting a quarry lease in favour of the 8th respondent on 12.04.2017 and in executing a lease deed in his favour on 18.04.2017, has chosen not to impose any such conditions.
While the 8th respondent cannot be faulted for not abiding by the conditions in the proceedings dated 18.12.2014, the contents of which were not even brought to his notice, the question which would necessitate examination is whether the Director of Mines and Geology had erred in granting a lease in favour of the 8th respondent, and in having executed a lease deed in his favour, without imposing the conditions stipulated by the DLSC as reflected in the letter addressed by the District Collector to the Assistant Director of Mines and Geology on 18.12.2014. It is in this context that supercession of G.O.Ms.No.2 dated 02.01.2013 by G.O.Ms.No.107 dated 30.07.2016 assumes significance. While the requirement of an NOC from the DLSC is stipulated in G.O.Ms.No.2 dated 02.01.2013, the said G.O. was superceded by G.O.Ms.No.107 dated 30.07.2016. Under G.O.Ms.No.107, the requirement of an NOC from the DLSC has been dispensed with and, instead, the power to grant the NOC has been conferred on the Tahsildar. In the absence of any obligation imposed either by a statutory provision, or even by way of executive instructions of the Government, the Director of Mines and Geology cannot be faulted for not imposing the conditions stipulated in the proceedings of the District Collector dated 18.12.2014 either in the grant order dated 12.04.2017 or in the lease agreement dated 18.04.2017. The petitioner's contention of the lease granted in favour of the 8th 40 respondent being vitiated, for non-compliance with the conditions imposed by the DLSC, does not therefore merit acceptance. The question which would, however, necessitate examination is whether such conditions were imposed in the larger public interest of environmental protection of the reserved forest, and to protect the wild life therein. This issue shall be examined later in this order.
II. IS CUTTING OF SHRUBS AND THICKETS IN THE MINING AREA PROHIBITED?
Sri V.V. Satish, Learned Counsel for the petitioner, would submit that the mining area and its surroundings should be treated as forest, though it is not recorded as a forest; the subject mining area, which forms part of the scheduled agency area, is covered by thick tree growth; the provisions of the A.P. Forest Act, 1967 are made applicable to Schedule Agency Areas under G.O.Ms.No.871 F & RD dated 17.11.1977; as there exists tree growth in the subject area, it falls within the definition of "Forest" under Section 28-A(a) of the Act, and as per the dictionary meaning noted in Samatha v. State of AP1 and in Gatlameedi Pothanna v. Divisional Forest Officer, Nirmal, Adilabad District2; the mining area should be treated as a forest, though it is not registered or recorded as a forest area; Section 28B 1(a) of the A.P. Forest Act mandates prior consent of the District Collector to lease any portion of the "Forest Produce" which includes Laterite; Section 28(2) also mandates that no "owner" of any forest shall, without the previous permission of the District Collector, cut trees or do any act which are likely to denude the forest or 1 (1997) 8 SCC 191 2 1998 (3) ALD 716 41 diminish its utility as a forest; the trees in the leased area, in the road area to the Y junction, in the adjacent reserve forest area, and the wildlife in the reserve forest, fall within the definition of "environment" as defined under Section 2(2) of the Environmental Protection Act 1986 (the "1986 Act" for short); the Chief Engineer of the A.P. Pollution Control Board is the statutory authority to exercise powers under the 1986 Act; the Revenue Divisional Officer, who is also a member of the DLSC, is also a statutory authority under the provisions of the A.P. Water Lands and Trees Act, 2002; the District Collector, a member of the DLSC and a statutory authority, is obligated to protect forests in the agency area under the A.P. Forest Act; the Chief Engineer and RDO, being statutory authorities to protect the environment and trees, are duty bound to guard the forest, trees, and the environment; they are empowered to impose conditions to preserve them, while giving their NOC for grant of a mining lease; the conditions so imposed shall bind the Owner (government in this case) and its lessee (R.8); the 8th respondent is not authorised to cut trees, or even brushwood or undergrowth, as it is in violation of the DLSC conditions, and also the terms of the grant and the lease; it is clear that the mining lease holder did not obtain permission from any competent authority either to cut the trees or other growth in the leased area, and the area through which the road was formed to the 'Y' junction; when R.8 removed trees unauthorizedly, the authorities were watching silently; in the order of grant dated 12.4.2017 and the terms of lease dated 18.4.2017 prohibition is imposed on cutting of trees, and the lessee is permitted to clear brush wood or undergrowth on payment of compensation to the 42 concerned department; as cutting of trees and other growth, without permission, is in violation of the conditions of lease and the grant proceedings, besides the conditions imposed by the DLSC, the lease is liable to be cancelled as per Rule 12(1)(5)(h(xii) of the 1966 Rules.
Sri V.V.Satish, Learned Counsel, would further submit that, in the approved mining plan of R.8, the location of the mining area is mentioned on the Topo sheet 65k/6 issued by the Survey of India; the Topo sheet, which is an authorized document, shows existence of a forest in the mining area, and also in the road to the Y junction area; they are classified as DENSE MIXED FOREST; the Forest Survey of India, Dehradun issued a Manual of Instructions for Field Inventory according to which the definition of Dense Forest is "cover of trees with canopy density of 40% to 69%"; the State Level Environment Impact Assessment Authority, in its letter dated 31.12.2016, observed that the area is covered by a Green Belt (as the petitioner could get it after hearing, a copy of the same is filed herewith); the photographs filed by the petitioner, along with the PIL, clearly show that the entire area is covered by tree growth; initially, in his counter-affidavit, the Divisional Forest Officer admitted existence of trees, and alleged that the density of tree growth is 0.04 as per their document; and, subsequently, after physical inspection, he stated that the average tree density is calculated to be 238 no. per hectare; the 7th respondent filed his report of inspection, allegedly conducted on 23.7.2018, in which it was estimated that about 1396 trees in the active mining area of Ac.3.86, and the road area to Y junction, were removed; the inspection report does not speak about the remaining portion of 43 the lease area of 16.31 hectares in which R.8 had already removed the growth; if the same calculation (238 trees per hectare) is applied to the entire mining area, the number of trees removed would come to 4,800 trees, and 476 trees towards the road i.e a total number of 5276 trees; the 8th respondent has, unauthorisedly, formed a road to Y junction by removing trees; the 7th respondent has admitted removal of trees in this stretch; the lease deed does not cover the stretch of 2.5 kilometers of the road area; the 8th respondent was required to obtain separate orders of allotment to form the road from the concerned authorities; hence, formation of the road to Y junction, and removing trees therein, is illegal; and there is no justification, on the part of the officials, in keeping quiet without initiating action against the 8th respondent.
On the other hand Sri C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the 8th respondent, would submit that the leased area has sparse tree growth, that too stunted, and consists mainly of shrubs and bushes; even if trees were present, their growth was stunted; the petitioner has made bald, baseless and misleading/malicious averments that the 8th respondent had removed 25,000 trees; all relevant proceedings of the official respondents show that the proposed mining area does not have trees at all, and is covered with shrubs and bushes; there were no big trees or trees having commercial timber value; according to ICAR (Indian Council of Agricultural Research) Laterite Soils are acidic and residual in nature which are formed under typical monsoonal conditions; the process of formation is called leaching; in leaching process siliceous compounds of soil are washed away by heavy rain in hot climate and sloppy terrain; hence such soils 44 are deficient in siliceous compounds; these soils are not very fertile, and are suitable for bushes and pastures only; these soils are in oxides of iron and aluminum, but deficient in nitrogen, phosphoric acid, lime and potash; and the 8th respondent has planted 15,000 trees on both sides of the road, and around the mining area, (of which 6700 trees were supplied by the department of Forest, Narsipatnam), by arranging water facility through drip irrigation system.
By G.O. Ms. No.871, F&RD, dated 17-11-1977 the Government of A.P, in the exercise of the powers conferred by sub- paragraph (1) of paragraph 5 of the 5th schedule to the Constitution of India, directed that the A.P. Forest Act, 1967 (the "1967 Act" for short) shall apply to the Scheduled Areas in the State of A.P., subject to the modifications (as contained in Sections 28-A to 28-G of the 1967 Act. (Gatlameedi Pothanna2). Section 2(g) of the1967 Act defines 'forest produce' to include the following whether found in, or brought from a forest or not, that is to say mineral including laterite. Section 3 enables the Government to constitute any land as a reserve forest in the manner provided in the 1967 Act. Section 17 of the 1967 Act stipulates that no right of any description shall be acquired by any person in or over a reserve forest, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or any person in whom such right was vested before the publication of the notification under Section 15 of the 1967 Act. The subject land is, admittedly, located at a distance of 2.34 K.M. from the boundaries of the Sarugudu Reserve Forest and Section 17, which relates to rights in a reserve forest, has therefore no application. 45 Even otherwise the right to quarry laterite mineral was acquired by the 8th respondent pursuant to a grant in writing made on behalf of the State Government.
Chapter-III-A of the 1967 Act contains provisions applicable to Schedule Areas and for preservation of private forests. Section 28-A(a) defines 'forest', with respect to Chapter-III-A, to include waste or communal land containing tree growth and shrubs, pasture land and any other class of land declared, by the Government in this behalf by notification in the Andhra Pradesh Gazette, to be a forest. It is only shrubs and tree growth in land, which the Government has declared, by notification in the A.P. Official Gazette, to be a forest, which would fall within the definition of 'forest' under Section 28-A(a) of the 1967 Act. It is not even the petitioner's case that the subject land, for which a mining lease has been granted to the 8th respondent, has been declared by the State Government to be a forest.
Section 28-B of the 1967 Act relates to preservation of private forests and, under sub-section (1)(a) thereof, no owner of any forest shall, without the previous sanction of the District Collector, sell, mortgage, lease or otherwise alienate the whole or any portion of the forest or the forest produce. As the heading of the provision indicates, Section 28-B relates to preservation of private forests. It is not even the petitioner's case that the subject land is a "private forest" falling within the ambit of Section 28-B of the 1967 Act. Section 28-D provides that if, in opinion of the Government, it is necessary for the preservation of a forest or forests, they may, by notification in the Andhra Pradesh Gazette, (i) prohibit or regulate the doing of any act likely to be detrimental to 46 the preservation of such forest or forests; and (ii) regulate the exercise of customary or prescriptive rights in such forest or forests. No notification issued by the Government under Section 28-D of the 1967 Act, whereby prohibition was imposed on the removal of trees, shrubs and thickets in the subject mining area, has been brought to our notice.
Section 28 of the A.P. Water, Land and Trees Act, 2002 (hereinafter called the "2002 Act") relate to tree plantation in urban areas and, under Section 28(5), no felling of the trees or branches is permitted without the prior permission of the designated officer. In case a tree is to be felled, not less than two seedlings should be planted; and when such planting is not possible, the cost of raising seedlings and their maintenance shall be recovered from the concerned individual, organization or other persons for raising plantations in public places. Rule 9 of the Andhra Pradesh Water, Land and Trees Rules, 2004 (the "2004 Rules" for short) empowers the Government, by notification, to constitute a Divisional Authority with the Revenue Divisional Officer/Sub-Collector as the Chairman. While the respondents state, in their respective counter-affidavits, that no tree was felled in the Mining area, and the area, where a mining lease was granted, had shrubs and thickets, and no trees in which case neither the 2002 Act nor the 2004 Rules would have any application, the Joint inspection report dated 25.07.2018 estimates 1396 trees to have been in existence, in which case the provisions of the 2002 Act may be attracted.
The description of the word "forest", according to its dictionary meaning, covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the 47 purpose of Section 2(i) of the Forest Conservation Act, The term "forest land", occurring in Section 2, not only includes "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of ownership. The provisions enacted in the Forest Conservation Act, 1980, for the conservation of forests and the matters connected therewith, must apply clearly to all forests so understood irrespective of the ownership or classification thereof. (T.N. Govardhan Thirumulkpad v. Union of India3; Gatlameedi Pothanna2). The Forest Conservation Act not only regulates forests as recorded in the Government records, but also forests as understood as per its dictionary meaning, even existing in private land. (Gatlameedi Pothanna2).
The word "forest" bears an extended meaning of a tract of land covered with trees, shrubs, vegetation and undergrowth intermingled with trees and pastures, be it of natural growth or man-made forestation. (Samatha1). The word 'forest' should be understood in a wider sense covering not only all statutory notified forests and recorded forests, but also forests as understood according to the dictionary meaning. (Gatlameedi Pothanna2). The expression 'forest land' not only includes preserved forests, but also covers track or land covered with trees, shrubs, vegetation and undergrowth intermingled with trees with pastures be it of natural growth or man-made fore- station. (Samatha1; Gatlameedi Pothanna2).
The counter-affidavit of the 3rd respondent-Assistant Director of Mines and Geology refers to the report of the 4th respondent that 3 AIR 1997 SC 1228 48 the leased area was not forest land, and was classified as hill poramboke; the mining lease area is covered by thick bushes and rocks; there were no big trees; and as per the report of the District Forest Officer dated 18.08.2012, the forest department had not reported any objection regarding mining operations of the 8th respondent. In his counter-affidavit, the 5th respondent-Tahsildar also stated that the mining area, demarcated in the sketch, was not forest land; it was a rocky terrain not fit for cultivation; the proposed area did not lie in the reserve forest; and the Revenue Divisional Officer, Narsipatnam had submitted a report to the District Collector, Visakhapatnam stating that the proposed mining area was covered with thickets, bushes and rocks, and no big trees were there. In his counter-affidavit, the 7th respondent- Divisional Forest Officer has also stated that the proposed mining area is not in the reserve forest; it was having a tree growth of less than 0.4 density; and no request was made for assessing the value of the existing tree growth. The 7th respondent-Divisional Forest Officer has also explained that, when the canopy density is between 0.1 and 0.4, the vegetation type is 'open'; and neither the revenue department nor the mining department had approached the forest department for assessing the value of the tree growth.
Sri V.V.Satish, Learned Counsel for the petitioner, would refer to a Topo-sheet, filed for the first time along with the written submissions, to contend that the area is classified as Dense Mixed Jungle by the Forest Survey of India. Learned Counsel has also calculated the number of trees existing on the land. These contentions do not form part of the pleadings either in the Writ affidavit or in the reply-affidavits filed by the petitioner or in any of 49 the counter-affidavits filed by the respondents. As noted hereinabove, all the respondents have stated, in their counter- affidavit, that there was no tree growth and the mining area was covered by thickets and bushes. Sri C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the 8th respondent, would contend that the soil is incapable of tree growth; and the area had sparse tree growth consisting mainly of shrubs and bushes.
After the Writ Petitioner was heard in part on 20.07.2018, a copy of the joint inspection report dated 25.07.2018 of the Divisional Forest Officer, Narsipatnam, pursuant to the inspection caused by him along with the concerned mining and revenue officials, was filed as part of the additional material papers. The said report records that, as per the report of the special team dated 24.07.2018, the average trees per hectare was found to be 238 in the locality, and the team estimated that, in the total area already mined and the area in which the approach road was formed, approximately 1396 trees may have existed, and may have been removed by the lease holder. The report further states that it is a general procedure for the government departments to obtain enumeration and valuation of the tree growth in government lands and premises from the forest department before commencement of any developmental work; but, in this case, neither the revenue department nor the mining department or even the mining lease holder (i.e. the 8th respondent) had not approached the forest department for enumeration and valuation of the tree growth, existing on the mining area and the approach road area, before commencement of mining operations. While this report refers to the joint inspection caused on 25th July, 2018, its contents run 50 counter to what has been stated in the counter-affidavits filed earlier wherein existence of trees in the mining area was denied.
If the contents of the joint inspection report dated 25.07.2018 are true, then the 8th respondent must be held to have felled trees without obtaining permission from the forest department. It would also mean that all the respondents have failed to disclose true and correct facts in their counter-affidavits. Since the joint inspection report dated 25.07.2018 was enclosed along with the additional material papers filed by the 7th respondent on 31.07.2018, the 8th respondent has not had the opportunity to rebut the contents of the said report. It would not be appropriate for us, therefore, to fault the 8th respondent or proceed on the premise that several trees were felled without obtaining prior permission from the forest department or that the 8th respondent had failed to pay compensation for the trees felled by him. In any event, if trees have already been felled, the question of their now seeking permission to fell the trees does not arise. As the 8th respondent did not have an opportunity to rebut these allegations, we direct the 7th respondent to put the 8th respondent on notice regarding existence of 1396 trees, give them an opportunity of being heard, and after determining the exact number of trees, if any, felled by the 8th respondent, to fix its value and direct the 8th respondent to pay the said amount to the gram Panchayat.
The value of the shrubs and bushes in the mining area, besides the value of the trees, should have also been determined, and the 8th respondent ought to have been called upon to pay compensation for cutting such tree growth in the light of Section 51 28(5) of the 2002 Act. Suffice it to leave it open to the forest department to cause inspection of the area and, on the basis of information if any available with them regarding the extent of shrubs and thickets in the mining area prior to 12.04.2017, (the date on which a mining lease was granted to the 8th respondent), to also determine the extent to which the area was covered by thickets and bushes, determine its value, and intimate the same to the 8th respondent who shall, within one month from the date of receipt of such intimation, pay its value to the Gram Panchayat. In case the 8th respondent fails to make payment for the trees, shrubs and bushes removed by him for carrying on mining operations, within 30 days of intimation, the 2nd respondent shall, thereafter, take action against the 8th respondent in this regard, in accordance with law.
III. DO THE CONDITIONS IMPOSED BY THE DLSC ACCORD WITH THE PROVISIONS OF PART IV AND IV-A OF THE CONSTITUTION?
Sri V.V.Satish, Learned Counsel for the petitioner, would submit that the conditions imposed by the DLSC are in consonance with Article 48A and 51-A(g) of Constitution of India; the conditions are therefore valid and are binding on the owner (government-State) and the lessee; the official respondents, being custodians of natural resources, are duty bound to preserve and protect natural resources like air, water, plants, flora and fauna; they are bound to enforce the conditions imposed by the DLSC to protect trees and wild life; having taken advantage of the NOC of the DLSC for all purposes, and being bound by the fundamental duty under Article 51-A(g) of the Constitution, the 8th respondent 52 is under an obligation to comply with the conditions under the NOC.
On the other hand Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on behalf of the 8th respondent, would submit that the 8th respondent obtained all necessary clearances and approvals from the concerned departments; none of the approvals or clearances stipulate or reflect any of the conditions specified by the DLSC; the 8th respondent is bound only by the grant order dated 12.04.2017 issued by the Director of Mines & Geology and the Form "G" lease deed, which is a statutory form under the 1966 Rules; he is also bound by the conditions imposed in the Consent for Establishment (CFE) and the Consent for Operations (CFO) issued by the A.P. Pollution Control Board, and the permission granted by State Environmental Impact Assessment authority under the Environment (Protection) Act; all these permissions are statutory in character; and there is no obligation on the 8th respondent, under any statutory proceedings, to construct a wall adjacent to the Reserve forest, which is 2.34 km away from the quarry.
The Directive principles of State policy, and the fundamental duties as enshrined in Article 51-A of the Constitution, play a significant role in testing the reasonableness of any restriction cast by law on the exercise of any fundamental right by way of regulation, control or prohibition. (State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat4). Articles 48 and 51-A(g) of the Constitution should be kept in mind while interpreting statutory provisions also. (Mirzapur Moti Kureshi Kassab Jamat4; State 4 (2005) 8 SCC 534 53 of W.B. v. Sujit Kumar Rana5). Article 48-A was inserted in Part IV of the Constitution, and the State was burdened with the responsibility of making an endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. By the same amendment, Fundamental Duties of the citizens were enumerated in the form of Article 51-A (Part-IV A). These include the duty to protect and improve the natural environment including forests and wildlife and to have compassion for living creatures [Article 51-A(g)]. (Association for Environment Protection v. State of Kerala6).
Fundamental duties, though not enforceable by the Writ of the court, yet provide valuable guidance and aid to interpretation and resolution of constitutional and legal issues. In the case of doubt, Article 51-A can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the Courts. The fundamental duties must be given their full meaning. The State is, in a sense, "all the citizens placed together" and, therefore, though Article 51-A does not expressly cast any fundamental duty on the State, the duty of every citizen of India is, collectively speaking, the duty of the State. (Mirzapur Moti Kureshi Kassab Jamat4; AIIMS Students' Union v. AIIMS7). The obligation to protect and preserve forests is the fundamental duty of every citizen, and all persons in a comprehensive sense, i.e., juristic as well. Maintenance of ecology is the primary duty of the State to prevent any further degradation of the ecology and 5 (2004) 4 SCC 129 6 (2013) 7 SCC 226 7 (2002) 1 SCC 428 54 environment and equally is the duty of every citizen. (Samatha1; Gatlameedi Pothanna2).
The State and the citizen are under a fundamental obligation to protect and improve the environment, including forests and to have compassion for living creatures. (Mirzapur Moti Kureshi Kassab Jamat4; T.N. Godavarman Thirumalpad3). Preservation of the environment, and keeping the ecological balance unaffected, is a task which not only the governments but also every citizen must undertake. It is a social obligation of the State as well as of the individuals (Mirzapur Moti Kureshi Kassab Jamat4; Rural Litigation and Entitlement Kendra v. State of U.P8) to conserve, and if it becomes inevitable to disturb its existence, it is the concomitant duty to reforest and restore forestation. It is the duty of the State to coordinate with all concerned, and provide adequate measures to promote, protect and improve both man-made, natural environment flora and fauna as well as biodiversity. (Samatha1). Even in the absence of any statutory violation, the Court would be guided by the directive principles laid down in Article 48-A and the fundamental duties imposed under Article 51- A of the Constitution of India.
In examining whether the conditions imposed by the DLSC, as reflected in the proceedings of the District Collector dated 18.12.2014, should be enforced, and the 2nd respondent be called upon to prevent further mining activity being carried on by the 8th respondent, we must bear in mind that the terms of the grant, and the mining lease deed, have not been violated; and the 8th respondent has obtained all statutory clearances such as 8 1986 Supp SCC 517 55 environment clearance, consent for establishment and consent for operations. It is only if the conditions imposed by the DLSC are reasonable, and in larger public interest, would the question whether such conditions should have been imposed in the grant and the mining lease necessitate examination.
The conditions imposed by the DLSC are (1) the buffer area of the reserve forest should be protected by construction of a compound wall; (2) mining operations should be carried out without entering the forest boundaries; (3) permission should be obtained for removal/cutting of trees in the leased area; (4) after the value of the trees are assessed by the forest department, the 8th respondent should remit the tree value to the concerned Gram Panchayat; (5) a road should be constructed and handed over to the Gram Panchayat for its utilization by the general public; and (6) the 8th respondent should not trespass into government land.
We have already dealt with conditions (3) and (4) in the earlier part of this order. With regards condition No.(5), a road has already been laid from the mining area till the "Y" junction, and it is not even the petitioner's case that the general public have not been given free access to the road. As all public roads vest in the Gram Panchayat, the 8th respondent is bound to hand it over to them, and it is always open to the officials concerned to take necessary action in accordance with law. Even if condition No.6 had not been imposed, the 8th respondent cannot carry on mining operations beyond the area leased in their favour. If they do so, it would violate the conditions of the grant and the mining lease agreement, for which the 2nd respondent is entitled to take necessary action in accordance with law.
56
That leaves us with conditions (1) and (2) imposed by the DLSC as reflected in the proceedings of the District Collector dated 18.12.2014. We shall examine condition No.(2) later in this order. In so far as condition No.1 is concerned no reasons have been assigned by the DLSC for imposing such a condition. The road laid from the mining area to the "Y" junction splits into two thereafter. While one of the two roads goes through the reserve forest, the other goes outside the reserve forest to Sundarakota. If the intention of imposing the condition of construction of a compound wall is to prevent the 8th respondent from entering into the forest, condition No.2 would have sufficed, and it was wholly unnecessary to impose condition No.1. As construction of a compound wall is not referable to any statutory provision - either plenary or subordinate, and as the object of prescribing such a condition has not been spelt out either by the District Collector or the DLSC, we see no reason to prescribe any such condition as it is not stated as to how this condition would further the directive principles of State policy under Article 48-A and the fundamental duties under Article 51-A of the Constitution of India. IV. IS THE ROAD, THROUGH THE RESERVE FOREST, MEANT FOR THE USE OF THE FOREST DWELLERS ONLY?
Sri V.V.Satish, Learned Counsel for the petitioner, would submit that the road through the Reserve Forest is provided for community rights to the user agency only; the proceedings of the 7th respondent dated 13.8.2014 show that the villagers of Sarugudu Panchayat had requested that a road be provided from Sarugudu to Sundarkota; the condition prescribed for construction of a protection wall, imposed by the DLSC, is justified; the District 57 Collector-cum-Chairman of the District Level Committee, and the Divisional Forest Officer, had forwarded proposals to the District Level Committee under the provisions of the ST and Other Traditional Forest Dwellers(Recognition of Forest Rights) Act 2006 (the "2006 Act" for short) for its final decision on providing a road for community rights to the User Agency; as forest land was diverted to provide a road for community rights of the agency people, the road so laid through Sarugudu Forest to Sundarkoda can be used only by the ST and other Traditional Forest Dwellers for exercising their community rights, but not for the commercial activity of transporting mineral of the 8th respondent; once a road is formed through the reserve forest, clearly stating that this access has been provided for community rights of the user agency, the 8th respondent has no authority to enter into the reserve forest for transportation of his mineral.
The 2006 Act is an Act to recognize and vest forest rights, and occupation in forest land, in forest dwelling Scheduled Tribes and other traditional forest dwellers. Chapter-II prescribes forest rights, and Section 3 stipulates the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers. Section 4 relates to recognition of, and vesting of, forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers, and Section 5 prescribes the duties of holders of forest rights. Under Rule 7 of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2008, the State Government is required to constitute a District Level Committee with the District Collector as the Chairperson. Rule 8 details the functions of the District Level Committee. None of the functions 58 stipulated in clauses (a) to (i) thereunder relate to the grant of an NOC. Neither the provisions of the 2006 Act nor the 2008 Rules have any application to the case on hand, since it is not even the petitioner's case that any of the provisions of the 2006 Act or the 2008 Rules have been violated on a mining lease being granted in favour of the 8th respondent or by their transportation of the quarried mineral.
In the absence of any specific provision in the 2006 Act being violated, and as neither the provisions of the 2006 Act nor the 2008 Rules so prohibit, the 8th respondent cannot be disabled from entering the reserve forest in terms of the said Act and Rules. Whether the 8th respondent should be permitted to transport large truck loads of laterite through the reserve forest, and whether such transportation would cause ecological degradation of the reserve forest, besies causing harm to the wildlife therein, shall be examined hereinafter in this order.
V. PROTECTION OF WILDLIFE IN THE RESERVE FOREST : IS IT NECESSARY THAT RESTRICTIONS BE IMPOSED ON TRANSPORTATION OF MINERAL THROUGH THE RESERVE FOREST?
With regards protection of wild life in the reserve forest, Sri V.V. Satish, Learned Counsel for the petitioner, would submit that the 7th respondent, in his counter, has admitted existence of wildlife in Sarugudu Reserve Forest; it is an undisputed fact that the 8th respondent is transporting his mineral through Sarugudu Reserve Forest; in the mining plan, it is clearly stated that R.8 would extract 7,50,000 tonnes of laterite every year; this, by itself, supports the petitioner's case that 200 transporting lorries move through the reserve forest; none of the officials have disputed the said fact of movement of 200 lorries per day to transport the 59 mineral; this activity of transportation is dangerous to wildlife in the reserve forest; the condition of restriction of entry into the Reserve forest, imposed by the DLSC, is valid and is binding on the 8th respondent; entering into the reserve forest is illegal; the original route for transportation of mineral, as prescribed by DLSC after taking note of the Sub-Collector Narsipatnam's Letter dated 26.9.2014, is through Sundarakota Road; the District Collector enclosed a road sketch to his proceedings dated 18.12.2014, and imposed certain conditions to form a road; and the 8th respondent, instead of forming a road from the mining area to Sundarakota, is entering and transporting his mineral through the Sarugudu Reserve Forest illegally.
On the other hand Sri C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the 8th respondent, would submit that the petitioner has made unsubstantiated and incorrect averments that a wild animal was killed, due to the movement of vehicles; no such incident occurred; and neither was it reported to the concerned police nor to the office of Divisional Forest Office, Narsipatnam.
In his counter-affidavit, and additional counter-affidavit, the 7th respondent-Divisional Forest Officer, Narsipatnam has stated that an animal census was conducted in the Vedurupalli beat area of Sarugudu reserve forest in January, 2018; and, during census, the concerned field staff had reported the presence of wild life in Sarugudu reserve forest. The importance of protecting wild life, and preventing degradation of forests, is well recognised. The Environment (Protection) Act, 1986 (for short "the 1986 Act") was enacted to protect and improve the environment and for prevention 60 of hazards to human beings, other living creatures, lands and property. Section 3 of the 1986 Act enjoins the Central Government that it should take such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. Forests should be preserved from deforestation to maintain the ecology and to prevent environmental degradation, and hazardous effects on the right to life. (Samatha1). The environmental clearance obtained by the 8th respondent, to carry on mining operations in the area given to him on lease, does not relate to transportation of the quarried mineral through the Sarugudu reserve forest. While the 8th respondent claims that between 15 to 20 lorries transport the quarried mineral each day, the petitioner claims that around 200 lorries, carrying the quarried mineral, would pass through Sarugudu reserve forest each day.
It is the duty of the Government to protect wildlife and natural resources. The "Doctrine of the Public Trust" is founded on the premise that certain common properties such as forests are of immense importance to the people in general, and they must be held by the Government as a trustee for the free and unimpeded use by the general public. The doctrine enjoins upon the Government to protect natural resources. (Association for Environment Protection6). The State is the trustee of all natural resources which are, by nature, meant for public use and enjoyment. As a trustee, it is under a legal duty to protect natural resources. (Association for Environment Protection6; M.C. Mehta v. Kamal Nath9).
9 (1997) 1 SCC 388 61 If there is a law made by Parliament, or the State Legislature, Courts serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. In the absence of legislation, the executive, acting under the doctrine of public trust, cannot abdicate natural resources. The aesthetic use and pristine glory of natural resources, the environment and the eco-system of our country cannot be permitted to be eroded unless it is for the public good and in public interest to encroach upon these resources. (Association for Environment Protection6).
Formulated from a negative angle, the doctrine does not prohibit alienation of the property held as a public trust. However, to properly scrutinise such actions of the Government, Courts must make a distinction between the Government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of public resources. (Association for Environment Protection6).
The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest are held subject to the duty of the State not to impair such resources, uses or values. The same obligations apply to managers of forests and other public assets. (Association for Environment Protection6). The Court can invoke the public trust doctrine, and take affirmative action, to protect forests and 62 associated natural eco-systems. (Association for Environment Protection6).
No exercise has been undertaken by the forest department to determine the number of lorries, carrying the quarried mineral from the 8th respondent's leased area, which would pass through the Sarugudu reserve forest each day. Nor has any steps been taken to examine its effect on the wildlife, and to the forest itself, because of vehicular pollution and accidental death of wild animals being caused by such vehicles. In this context it is necessary to also note that, while there exists a road to Sundarakota outside the reserve forest, the distance is far longer than the road passing through the Sarugudu reserve forest. The economic benefits which the 8th respondent may gain, on the shorter route being taken for transportation of the quarried mineral through the Reserve forest, must yield to the larger public interest of protection of wildlife in the Reserve forest and to prevent environmental degradation to the reserve forest itself.
Applying the doctrine of public trust, we direct the Principal Chief Conservator of Forests, Andhra Pradesh to undertake the exercise of estimating the number of vehicles belonging to the 8th respondent which pass through the reserve forest, carrying the quarried mineral, each day; and determine the threat to wildlife in the Reserve forest, and the damage which may be caused to the forest itself, because of vehicular pollution caused by the large scale movement of such vehicles. Based on the result of such an exercise, the Principal Chief Conservator of Forests, Andhra Pradesh may either prohibit or regulate movement of the vehicles, carrying the quarried mineral from the 8th respondent's mining 63 area, through the Reserve Forest. The entire exercise, culminating in an order being passed by the Principal Chief Conservator of Forests, Andhra Pradesh, shall be completed within a period of two months from the date of receipt of a copy of this order. Till a decision is taken by the Principal Chief Conservator of Forests, Andhra Pradesh, and is communicated to him, the 8th respondent shall not transport the quarried mineral through the Sarugudu Reserve Forest, and shall, instead, use the road leading to Sundarakota passing outside and beyond the Sarugudu Reserve Forest limits.
VI. DOES THE WRIT PETITION LACK BONAFIDES?
Sri C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the 8th respondent, would submit that this Writ Petition lacks bonafides, and is only filed for the purpose of black-mail; criminal cases have been registered against the petitioner; the petitioner was earlier working for the 8th respondent who used to pay for the services rendered by him; since the services of the Writ Petitioner were not satisfactory, the 8th respondent stopped engaging him; the consequence is the present Writ Petition; and any other contention, advanced by the petitioner, has no basis in the pleadings.
On the other hand Sri V.V.Satish, Learned Counsel for the petitioner, would submit that the allegation that petitioner was an employee of the 8th respondent is completely false; it is made only to dilute the cause in this PIL; while the present PIL was under adjudication, the Police of Nathavaram had detained the petitioner on 28.04.2018, and had later showed arrest in connection with the FIR in a 20 years old matter i.e., Cr.No.60 of 1997, though the 64 petitioner's name is not there in it; on 1.8.2018, the court below granted bail, holding that the prosecution had failed to show that the name of the petitioner was wrongly omitted in the FIR; even 20 days after granting bail, the petitioner was not released as the police deliberately delayed verifying the sureties produced by the petitioner; immediately upon his arrest, the petitioner's son filed I.A Nos.2 & 3 of 2018 seeking to implead the concerned police authorities, and sought for production of the detenue before this Court; later on, the family members were told that he was arrested in connection with the above case; in the petition, it is clearly stated that the 8th respondent is behind this detention; neither the 8th respondent nor the police officials have filed any counter to I.A.Nos.2 and 3 of 2018; the petitioner is implicated in the crime only to suppress his voice against the illegal activities of the 8th respondent; the action of the official respondents, in allowing the 8th respondent to continue his mining operations despite their knowledge that the 8th respondent has consciously violated the terms and conditions imposed under the NOC, the terms of the grant and the lease, and though he was causing biological imbalance and threat to wildlife, is illegal and arbitrary; and the lease of the 8th respondent is liable to be cancelled.
The allegations and counter-allegations, leveled both by the petitioner and the 8th respondent against each other, notwithstanding, we may not be justified in non-suiting the petitioner, particularly when the joint inspection report of the Divisional Forest Officer, Narsipatnam, pursuant to an inspection caused along with the concerned Mining and Revenue officials on 25.07.2018, discloses that there may have existed approximately 65 1396 trees in the total area already mined, and in the area in which the approach road was formed. If this assessment, in the joint inspection report, is true, then all the respondents, including the 7th and 8th respondents, must be held to have failed to bring these facts to the notice of this Court in the counter-affidavits and additional counter-affidavits filed by them earlier.
Even otherwise if any other member of the public, to whom the conduct alleged against the petitioner in the present case could not be attributed, can file such a writ petition for the same relief, this disability would not attach to him. The relief claimed by the petitioner in the writ petition, being in the nature of a class action, without seeking any relief personal to him ought not to be dismissed merely on the ground of lack of standing since this is a matter of public concern, relates to the good governance of the State itself, and the preservation of forests and protection of wild life. We see no reason, therefore, to non-suit the petitioner on this ground. (Dr. Kashinath G. Jalmi v. The Speaker10; Campaign for Housing and Tenural Rights (CHATRI), Hyderabad v. Government of A.P.11).
The Census conducted in January, 2018 discloses existence of Wild Life in the Sarugudu Reserved Forest. If, as is contended by the petitioner, around 200 lorries carrying quarried Laterite, pass through the Sarugudu Reserved Forest each day, it may not only have an adverse ecological impact on the forest, but may also cause harm to the wild life therein. In any event, since the issues involved are of paramount importance, and the personal difference, if any, between the petitioner and the 8th respondent are 10 (1993) 2 SCC 703 11 2010(2) ALD 789 (DB) 66 secondary, we see no reason to dismiss the Writ Petition as lacking in bonafides.
CONCLUSION:
1. The conditions imposed by the DLSC, as reflected in the District Collector's proceedings dated 18.12.2014, do not have statutory sanction and were, in any case, issued before the amendment to the 1957 Act in the year 2015. While these conditions were imposed in terms of G.O.Ms. No.2 dated 02.01.2013, by the time the quarry lease was granted and a lease agreement was entered into in April, 2017, G.O.Ms. No.2 dated 02.01.2013 stood superceded by G.O.Ms. No.107 dated 30.07.2016. As the proceedings of the District Collector dated 18.12.2014 were not even communicated to him, the 8th respondent cannot be held to be bound thereby.
2. Notwithstanding the fact that the proceedings of the District Collector dated 18.12.2014 does not have statutory sanction, strict judicial scrutiny by Courts is necessary in environmental matters, in view of the directive principles of State policy enshrined in Article 48A, and the fundamental duties in Article 51A of the Constitution.
3. Since no reasons have been assigned by the District Collector, in his proceedings dated 18.12.2014, for imposing the condition of construction of a compound wall in the buffer zone of Sarugudu Reserve Forest, and as such a condition is not referable to any statutory provision or even to the executive instructions, issued by the Government from time to time, we see no reason to impose any such condition on the 8th respondent for being permitted to carry on mining operations.
4. Applying the doctrine of public trust we issue the following directions:67
a. the 7th respondent shall put the 8th respondent on notice regarding existence of 1396 trees in the mining area, before the mining lease was granted, and call upon him to show cause why action should not be taken against him for illegal felling of those trees. The 7th respondent shall estimate the value of the trees so felled, collect the said amount from the 8th respondent, and remit it to the concerned Grampanchayat.
b. The 7th respondent shall ascertain whether the 8th respondent's claim of having planted more than 12,000 trees is true; and determine whether such plantation and maintenance would suffice as reforestation compensation for the trees felled earlier by the 8th respondent.
c. The Principal Chief Conservator of Forests, A.P. shall undertake the exercise of estimating the number of vehicles of the 8th respondent carrying quarried Laterite, which would go through the Sarugudu Reserved Forest each day, and asses the possible threat to Wild Life in the Reserve Forest, and the ecological damage which may be caused to the forest because of vehicular pollution.
d. After the aforesaid exercise is completed, the Principal Chief Conservator of Forests, Andhra Pradesh may either pass orders prohibiting or regulating movement of the vehicles carrying quarried mineral from the 8th respondent's mining area, through Sarugudu Reserved Forest, to reach Sundarakota.
e. Till orders are passed by the Principal Chief Conservator of Forests, A.P, and are communicated to the 8th respondent (which exercise shall be completed within two months from the date of receipt of a copy of this order), the 8th respondent shall not transport the quarried Laterite Mineral through the Sarugudu Reserve Forest; and shall, instead, use the road passing outside and beyond the Sarugudu Reserved Forest Area to reach Sundarakota.
Since the Principal Chief Conservator of Forests, A.P. is not a respondent to this Writ Petition, a copy of this order shall be 68 marked to him for necessary action. The 7th respondent-Divisional Forest Officer, Narsipatnam shall also communicate a copy of this order to the Principal Chief Conservator of Forests, A.P. requesting him to take necessary action in compliance with the aforesaid directions.
The Writ Petition is, accordingly, disposed of. The miscellaneous petitions pending, if any, shall stand closed. No costs.
______________________________ RAMESH RANGANATHAN, J ________________ J. UMA DEVI, J Date:31.10.2018 Note: L.R. copy to be marked.
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