IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.06.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE B.RAJENDRAN Writ Appeal No.469 of 2002 and W.P.No.5078 of 2001 W.A.No.469/2002 and W.P.No.5078/2001: The Madras Aluminium Company Limited, Mettur Dam, Salem District, rep. by its Authorised Signatory. ... Appellant/ Petitioner vs. 1.State of Tamil Nadu, rep. by Secretary to Government, Industries Department, Fort St. George, Chennai-9. 2.State of Tamil Nadu, rep. by Secretary to Government, Ministry of Environment and Forest, Government of Tamil Nadu, Fort St. George, Chennai-9. 3.The Collector of Dindigul, Dindigul District. 4.The Principal Chief Conservator of Forest, Chennai. 5.The District Forest Officer, Kodaikanal Division, Kodaikanal. 6.The Deputy Director of Geology and Mining, Dindigul. ... Respondents./ Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge made in W.M.P.No.18449 of 2001 in W.P.No.5078 of 2001 dated 20.12.2002. W.M.P.No.18449/2001:- Petition praying that in the circumstances stated therein and in the affidavit filed therewith on the file of the High Court, the High Court will be pleased to pass appropriate interim direction directing the respondents to https://hcservices.ecourts.gov.in/hcservices/ permit the petitioner to enter into the mining area situate in S.No.58/8 Mannavanur village under the resurvey classified as No.58 F/8 Poondi village in Kodaikanal and remove the 14134.330 MTs of Auxite in payment of that appropriate mines dues in respect of that quantity pending disposal of W.P.No.5078/2001. Writ Petition filed praying direction in the nature of Writ of Mandamus directing the Respondents to forthwith permit the Petitioner to enter into the leased area of 960 acres situated in S.No.58/8 of Mannavanur village under the resurvey classified as No.58 F/8 Poondi village in Kodaikanal to enable it to carry on mining operations of Bauxite in terms of the lease agreement dated 10.07.1971 for such period as may be permitted by the Government either by way of extension or renewal of lease, remove and transport the Bauxite quarried subject to payment of the prescribed mining dues. For Appellant & Writ Petitioner : Mr.Satish Parasaran For Respondents in both WA & WP : Mr.M.Ramasamy, Addl. Advocate General, assisted by Mr.Kirubanandam Spl. Government Pleader(Forest) COMMON JUDGMENT (Judgment of the Court was delivered by R.BANUMATHI,J) W.A.No.469 of 2002 – This Writ Appeal arises out of the order in WMP.No.18449 of 2001 in W.P.No.5078 of 2001 whereby the learned single Judge declined to grant interim direction to the Respondents to permit the Appellant to carry on mining operation of Bauxite in Kodaikanal Forest Division. 2. W.P.No.5078 of 2001 - Writ Petitioner/Appellant is seeking for Writ of Mandamus directing the Respondents to forthwith permit the Writ Petitioner/Appellant to enter into the leased area of 960 acres situate in S.F.No.58/8 of Mannavanur village [in S.F.No.58F/8 of Poondi village in Kodaikanal] to enable it to carry on mining operations of Bauxite in terms of the lease agreement dated 10.07.1971. Since common issue is involved, both Writ Appeal and Writ Petition were taken up together and disposed of by this common Judgment. 3. Brief facts are that Writ Petitioner company was granted a lease for mining Bauxite over an area of 960 acres of land in https://hcservices.ecourts.gov.in/hcservices/ Berijam Range of Kodaikanal Forest division in G.O.Ms.No.3459 Industries Department dated 07.10.1968 for a period of 30 years. Writ Petitioner company had executed an agreement on 10.07.1971 and the lease period expires on 08.07.2001. 4. Writ Petitioner company had paid a sum of Rs.32,000/- as advance royalty for 8000 MT of Bauxite Ore from the land. Mining lease was granted to the Writ Petitioner company for mining the Bauxite Ore and Writ Petitioner company also transported the Bauxite Ore to the Sector site, Mettur Dam as per the agreement and lease deed. According to Respondents, after transporting 5269.170 MT, Writ Petitioner company had sold the quantity of 1071.010 MT of Bauxite to Madras Cements, Thullukkapatti at the rate of Rs.35/- per ton. The royalty fixed for the mineral was only Rs.2.50 per ton which they have sold it to third parties for higher price, without using it for the purpose for which it was taken. Further case of Respondents is that since the mineral was sold to third parties without using it for the purpose for which it was taken, the operations of the company was stopped w.e.f. 31.01.1980 by the company and they have abandoned their mining operations and thereafter the areas selected by the Writ Petitioner company for mining the operations have been completely planted with wattle and pine plantations. Writ Petitioner company was declared as sick company under the Sick Industrial Companies (Special Provisions) Act and was referred for a scheme under the BIFR and did not carry on its normal functions during the period 1992-1995. 5. Mr.Satish Parasaran, learned counsel for Writ Petitioner company has drawn our attention to series of representations made by the Writ Petitioner company to the District Collector of Dindigul to allow it to commence the mining operation and requesting 'NOC' for the same. Writ Petitioner company had also sent letter [17.06.1997] to the District Forest Officer, Dindigul requesting permission to the Writ Petitioner company to resume mining operations in the leased land. Learned counsel for Writ Petitioner mainly relied upon the letter No.30945/FRX/97-2 from the Secretary to Government, Ministry of Environment and Forests [dated 18.12.1997] to the Principal Chief Conservator of Forests stating to continue their operations till the existing lease expires and issued necessary instructions to the District Forest Officer. The said letter dated 18.12.1997 reads as under:- "3. In this connection, I am also directed to state that renewal of any lease after the expiry of the existing lease should be granted as per Section 2 of the Forest (Conservation) Act, 1980, after obtaining the prior approval of the Government of India, under any circumstances there can be no automatic renewal. In the circumstances stated above I am therefore to https://hcservices.ecourts.gov.in/hcservices/ request you to permit the Madras Aluminium Company Limited to continue their operations till the existing leases expires and to issue necessary instructions to the District Forest Officer." Learned counsel for Writ Petitioner had also drawn our attention to the letter dated 09.01.1998 from the Writ Petitioner company to the Ministry of Forests and Environment, Government of Tamil Nadu requesting permission to enter the leasehold property and resume mining in the light of the orders of the Supreme Court. 6. Forest (Conservation) Act came into force on 27.12.1980. Forest (Conservation) Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance. Sec.2 of Forest (Conservation) Act imposes restriction on the use of forest land for non-forestry purposes. As per Sec.2 of Forest (Conservation) Act, no forest land can be diverted for any non-forestry activity without the prior approval of the Central Government. Sec.2 of Forest (Conservation) Act reads as under:- "2. Restriction on the reservation of forests or use of forest land for non forest purpose:- Notwithstanding anything contained in any other law for the time being inforce in a state, no state Government or other authority shall make except with the prior approval of the Central Government, any order directing. (i)that any reserved forest (within the meaning of the expression, "reserved forest" in any law for the time being in force in that state) or any a portion thereof, shall cease to be reserved. (ii)that any forest land or any portion thereof may be used for non-forest purpose. (iii)That any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to authority, corporation, agency or any other organization not owned, managed or controlled by Government; (iv)that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for deforestation. 7. In (1997) 2 SCC 267 [T.N.Godavarman Thirumulkpad v. Union of india and others], the Supreme Court had categorically directed the Forest department throughout the country to scrupulously follow the provisions of Forest (Conservation) Act. In the said Judgment it was also specifically made clear that "mining activity is non-forestry activities and that should be ceased forthwith". As per the direction of the Supreme Court felling of trees in all https://hcservices.ecourts.gov.in/hcservices/ forests is to remain suspended except in accordance with the working plans of the State Governments, as approved by the Central Government. In so far as, in State of Tamil Nadu, there will be a complete ban on felling of trees in all forest areas except in accordance with the plans of State Government. 8. In view of the clear interdict under the provisions of Forest (Conservation) Act, no Writ of Mandamus could be issued to the Forest department to permit the Writ Petitioner company to enter upon the land to enable it to carry on the mining operation. Writ of Mandamus could be issued only when the Writ Petitioner company has got right and in accordance with law. Writ of Mandamus cannot be issued contrary to the statutory mandate. Since Sec.2 of Forest (Conservation) Act imposes restriction on the use of the forest land for non-forestry purposes, the positive mandamus sought for by the Writ Petitioner company cannot be issued and the Writ Petition is liable to be dismissed. 9. Learned counsel for Appellant fairly conceded that in the light of Sec.2 of Forest (Conservation) Act, Court cannot issue positive mandamus to direct the respondents to permit the writ petitioner/appellant to enter into the mining area situate in S.No.58/8. The writ petitioner/appellant is not entitled to the relief sought for in the writ petition. 10. Learned counsel for the writ petitioner/appellant requested the Court to consider the request of the writ petitioner to remove the Bauxite already mined and kept in heaps in the mining area. Mr.Satish Parasaran,learned counsel for the writ petitioner/appellant has drawn our attention to the report filed by the Commissioner, whereby the Commissioner has noted 32 heaps of mined Bauxite in Block II-A of the leased out area in the site as under: Eastern side – 19 heaps Southern side – 3 heaps West - 10 heaps 11. In the interim report, the Commissioner has also estimated the mined Bauxite about 2849.66 M.T. The Commissioner has also noted that all the heaps are covered with marsh and humous soil and within the cluster of trees and in some of the heaps, well grown wattle trees were seen. 12. Even though the Commissioner has noted 32 heaps of mined Bauxite, the Commissioner has also noted well grown wattle trees in some of the heaps. While considering the request of the writ petitioner, it is not known whether the Bauxite can be removed without affecting the well grown trees. In such view of the matter it is not possible for us to issue any direction to the respondents to consider the request of the writ petitioner to https://hcservices.ecourts.gov.in/hcservices/ remove the mined Bauxite. In 2006 (4) SCC 257 [Employees' State Insurance Corporation v. All India ITDC Employees' Union and others], the Supreme Court has held that if the Court issues a direction to consider the request/representation of the writ petitioner, the authorities either out of ignorance or due to the fear of violating the order of the Court, might tend to pass favourable orders. Applying the ratio of the said decision, we are afraid that if any direction to the respondents are given to consider the request of the writ petitioner to remove the mined Bauxite, it might tend to prejudice the mind of the respondents. However, it is observed that it is always open to the writ petitioner/appellant to make representation to the authorities concerned for removing of mined Bauxite, who shall consider the same on its own merits. We make it clear that we are not making any observation on the merits of the request of the writ petitioner in making a representation. 14. With the above observation, the writ appeal and the writ petition are dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. bbr To 1.The Secretary to Government Industries Department, Fort St. George, Chennai-9. 2. The Secretary to Government, Ministry of Environment and Forest, Government of Tamil Nadu, Fort St. George, Chennai-9. 3.The Collector of Dindigul, Dindigul District. 4.The Principal Chief Conservator of Forest, Chennai.6 https://hcservices.ecourts.gov.in/hcservices/ 5.The District Forest Officer, Kodaikanal Division, Kodaikanal. 6. The Deputy Director of Geology and Mining, Dindigul. 1 cc to Mr. Sathish Parasaran, Advocate, Sr. 44935 1 cc to Spl. Government Pleader, (Forests), Sr. 45212 1 cc to Government Pleader, SR. 44840 W.A.No.469 of 2002 & W.P.No.5078/2001 RSM (CO) kk 7/7 https://hcservices.ecourts.gov.in/hcservices/