IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE EIGHTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 13312 of 2008 Between: M/s. Sri Venkata Sai Stone Crusher Rep. by its Proprietor M. Shashiverdhan Reddy S/o. Chelma Reddy, aged 50 yrs R/o. Penugonda Village, K. Samudram Mandal, Warangal District. ..... PETITIONER AND The Forest Range Officer, Mahaboobabad Warangal District. .....RESPONDENT Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue any appropriate writ order or direction more particularly one in the nature of writ of Mandamus declaring the notice of the respondent herein in Rc No. 125/M/2008 dt. 19-6-2008 as arbitrary, illegal, and without jurisdiction and violative of Article 14, 19(i)(g) of the Constitution of India. Counsel for the Petitioner: MR.V.TULASI REDDY Counsel for the Respondent.: GP FOR FORESTS The Court made the following : ORDER: This writ petition has been filed by M/s.Sri Venkata Sai Stone Crusher, rep. by its Proprietor M.Shashivardhan Reddy, with a prayer to issue a writ, order or direction, more particularly, one in the nature of writ of Mandamus declaring the notice in Rc.No.125/M/2008, dated 19.06.2008, issued by the Forest Range Officer, Mahaboobabad, Warangal District-respondent, as arbitrary and illegal. 2. The petitioner is the owner of an extent of Ac.11.04 guntas comprising Survey No.261/1 situated at Vemmunur village, Mahabubabad Mandal, Warangal District. The petitioner obtained quarry lease in respect of one hector in S.No.262/1 of Vemmunur village from the Assistant Director of Mines and Geology, Warangal, for the purpose of quarry for building stone and road metal under proceedings No.7215/Q/2007, dated 18.03.2008. He has a crushing unit in Survey No.70/1. He obtained necessary permission from the authorities such as Pollution Control Board and Factories Department in respect of crushing unit in Survey No.70/1. Whileso, the Forest Range Officer, Mahaboobabad, Warangal District-respondent issued a notice dated 19.06.2008 directing the petitioner to stop all crushing activity. The text of the said notice reads as hereunder: “It is noticed that, the Revenue land Sy.No.262/1 of Vemmunur village to an extent of 11.04 Acres was given to Mining activities to M/s.Venkata Sai Stone Crusher of the owner Sri M.Sehshivardhan Reddy, whereas on inspection the crushing activities are doing in the Reserve Forest of Dhanasari Forest Block compt. No.1191 and 1192 in position in the name above said Sy.No. Hence, the area is under dispute, as requested by you I have addressed to Tahsildar, Mahabubabad to fix up the boundaries on ground to above said Sy.No. so, as to conduct the joint survey to clear the dispute. Hence, you are directing to stop all crushing activities upto clear the dispute otherwise action will be taken as per Forest Conservation Act Provisions. Hence, this notice is issuing.” The said notice is under challenge in this writ petition. 3. Respondent filed counter-affidavit. B.Nagaraju, Forest Range Officer, Mahabubabad, Warangal District, has sworn to the counter- affidavit. It is stated in the counter-affidavit that the petitioner having taken undue advantage of the proceedings issued by the Assistant Director of Mines and Geology, Warangal, started mining activities in reserve forest Compt.No.1191 and 1192 of Forest Block Dhanasari, notified under Hyderabad Forest Act, 1355 Fasli (Corresponding to Section 4 of the Andhra Pradesh Forest Act, 1967). For better appreciation, I may refer paras.4 and 5 of the counter-affidavit and they are thus: “4. It is further submitted that the Asst. Director, Mines and Geology, Warangal, has sanctioned the Mining lease in Sy.No.262/1 of Vemnoor village to an extent of 1 Hector without verified the spot on the field and without fixing the boundary of the area of Sy.No.262/1 of Vemnoor village. The petitioner herein has taking undue advantage of the Asst. Director Mines and Geology, Warangal, has started the mining activities in Reserved Forest Compt.No.1191 and 1192 of Forest Block Dhanasari, Notified under Hyderabad Forest Act, 1355 Fasli (corresponding to Section 4 of Andhra Pradesh Forest Act, 1967), which attract to Forest Conservation Act, 1980. Once the area is notified under Forest Act, no person acquire new rights and no forest area shall be used for non forestry purpose, which violates Section 2 of Forest Conservation Act, 1980. 5. It is further submitted that the Government of Andhra Pradesh, Hyderabad vide Memo.No.3778/For.I(i)2001-1 Environment, Forest, Science and Technology (For-I) Dept. Dt.20.04.2001 “has requested to Director of Mines and Geology, Hyderabad to issue suitable instructions to all the concerned not to issue mining lease in Forest area and also adjacent area without consulting the concerned forest officials, as once the lease is granted by the mining department without consulting the forest department it is very difficult to cancel the lease and in several cases the parties are approaching the Hon’ble High Court and the matter is getting complicated”. The said Government Memo has been communicated to Asst. Director, Mines and Geology, Warangal, and the Thasildar, Mahabubabad and requested them not to give mining permission in Reserved Forest area and also adjacent to forest area without taking no objection certificate from the forest department, vide Divisional Forest Officer, Warangal South Division Rc.No.3404/2001/S2, Dt.20.06.2001. Neither the Thasildar, Mahabubabad nor the Asst. Director Mines and Geology, Warangal, have inspected the spot on the field and without following the Government instructions and also without consulting the forest department, sanctioned the mining lease in favour of the petitioner, and the petitioner has taken undue advantage of the above references started crusher activities in Reserved Forest Compt.No.1191 and 1192 of Forest Block Dhanasari, Notified under Hyderabad Forest Act, 1355 Fasli (corresponding to Sec.4 of Andhra Pradesh Forest Act, 1967), with an intention to encroach the Reserved Forest area for mining of crusher of stone.” 4. When this writ petition came up for admission, with the consent of both the counsel, the writ petition itself is taken up for final disposal. 5. Heard learned counsel appearing for the petitioner and learned Government Pleader for Forests appearing for the respondent. 6. Learned counsel appearing for the petitioner submits that under Section 62 of the Andhra Pradesh Forest Act, 1967, (for short, ‘the Act’), the respondent is not competent to direct the petitioner to stop crushing activity in Survey No.262/1. Learned counsel took me to the provisions of Section 62 of the Act, which reads as hereunder: “62. Government may invest forest officers with certain powers:- (1)(a) The Government may, by notification and subject to such terms and conditions as may be specified therein, invest any forest officer not below the rank of a Ranger with all or any of the following powers, namely – i) to enter upon any land and to survey, demarcate and make a map of the same: Provided that no such demarcation shall take away or abridge the right of any person in or over the land; ii) to hold enquiries into forest offences, and in the course of such enquiries to receive and record evidence; iii) to accept compensation for forest offences under Section 59. (b) The Government may, by notification invest any forest officer, not below the rank of a Forest Range Officer with all or any of the following powers, namely:-- (i) power of a Civil Court to compel the attendance of witnesses and the production of documents and material objects; (ii) to search or to issue a search warrant which may be executed in the manner provided in the Code of Criminal Procedure, 1898; (2) The Government may, in like manner, withdraw any powers invested under sub- section (1). (3) Any evidence recorded under item (ii) of Clause (a) of sub-section (1) shall be admissible in any subsequent trial of the alleged offender before a Magistrate, if it has been taken in the presence of the accused person and recorded in the manner provided by Section 355, Section 356 or Section 357 of the Code of Criminal Procedure, 1898.” A further submission has been made by the learned counsel that the petitioner obtained necessary permission to start a crushing unit from various statutory authorities and therefore, the respondent cannot interdict the crushing activities. 7. Learned Government Pleader for Forests appearing for the respondent submits that the petitioner under the guise of the orders obtained from the Assistant Director of Mines and Geology, Warangal, is carrying on the mining activities in the forest land. 8. I have gone through the notice impugned in the writ petition. It is stated in the said notice that the petitioner is carrying on crushing activities in the forest block compt.No.1191 and 1192. Crushing activity, according to the petitioner, is in Survey No.70/1. The mining activity is being carried on in Survey No.262/1. The respondent is not concerned with the Survey No.262/1. According to the respondent, the Compt.No.1191 and 1192 forms part of Forest Block of Dhansari, notified under Hyderabad Forest Act, 1355 Fasli (corresponding to Section 4 of the Andhra Pradesh Forest Act, 1967). Even if the impugned notice is considered, what is prevented is only crushing activity of the petitioner and not the mining activity. Therefore, the respondent under the guise of the impugned notice cannot interfere with the mining activity of the petitioner that is being carried on in Survey No.262/1. Since notice is stated to have been issued by the Tahsildar, Mahabubabad, on 05.07.2008 vide Rc.No.25/1797/2007, to the respondent to place on record the relevant material to proceed with the joint inspection. It is for the respondent to respond to the notice of the Tahsildar, Mahabubabad and invite joint inspection. 9. Accordingly, the writ petition is disposed of at the admission stage directing the respondent not to interfere with the mining activity of the petitioner that is being carried on in Survey No.262/1. The petitioner and the respondent are directed to have joint inspection of the land bearing S.No.262/1 pursuant to the notice issued by the Tahsildar on 05.07.2008 vide Rc.No.25/1797/2007 within two weeks from the date of receipt of a copy of this Order. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:08th July, 2008. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{VSMI}