*THE HON'BLE SMT. JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE G. CHANDRAIAH +Writ petitions Nos. 25910 & 26083 of 2009 %26-02-2010 # WPNO.25910 OF 2009 M/s. Obulapuram Mining Company Pvt. Ltd., rep., by its Director. ..... PETITIONER AND 1. The Government of A.P., rep., by its Secretary to Government, Industries & Commerce Department, Secretariat, Hyderabad and others. .....RESPONDENTS WPNO.26083 OF 2009 M/s. Anantapur Mining Corporation, Bellary rep., by its Parnter. ..... PETITIONER AND 1. The Government of A.P., rep., by its Secretary to Government, Industries & Commerce Department, Secretariat, Hyderabad and others. .....RESPONDENTS < GIST: > HEAD NOTE: !Counsel for Petitioners: Sri K Parasaran Sri Mukul Roathgi Sri P S Narsimha Sri K Raghava Charyulu Sri J Prabhakar ^Counsel for Respondents: Advocate General G.P. for Mines and Geology G.P. for Forests Sri Y Srinivsasa Murthy Counsel for Central Empowered Committee : Sri A D N Rao ? Cases referred 1) AIR 2001 SC 437 2) AIR 1964 SC 358 3) AIR 1964 SC 1284 4) AIR 1955 SC 549 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SMT. JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITIONS NO :25910 & 26083 of 2009 DATED: WPNO.25910 OF 2009 Between: M/s. Obulapuram Mining Company Pvt. Ltd., rep., by its Director. ..... PETITIONER AND 1 The Government of A.P., rep., by its Secretary to Government, Industries & Commerce Department, Secretariat, Hyderabad and others. .....RESPONDENTS WPNO.26083 OF 2009 Between: M/s. Anantapur Mining Corporation, Bellary rep., by its Parnter. ..... PETITIONER AND 2 The Government of A.P., rep., by its Secretary to Government, Industries & Commerce Department, Secretariat, Hyderabad and others. .....RESPONDENTS The Court made the following : THE HON'BLE SMT. JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION Nos :25910 & 26083 of 2009 COMMON ORDER: (per the Hon'ble Smt. Justice T.Meena Kumari ) W.P.No. 25910 of 2009 1. This writ petition is filed questioning the G.O.Rt.No.723, Industries and Commerce (M.III) Department, dated 25.11.2009 issued by the Government of A.P., suspending the mining operations of the petitioner-company and others basing on the proceedings of the Principal Chief Conservator of Forests, Hyderabad, dated 6.11.2009, 20.11.2009 and the letter of Sri M.K. Jiwarajka, Member Central Empowered Committee, dated 23.11.2009. 2. The case of the writ petitioner reads as follows: The petitioner-company is engaged in the business of mining iron ore pursuant to the validly executed and registered leases in District Anantapur, State of A.P. The petitioner is having three leases over an extent of (1) 25.98 Hectares in Obulapuram Forest Compartment No.695 (2) 39.5 Hectares in Obulapuram Forest Compartment No.695 and (3) 68.5 Hectares in Malpangudi Forest Compartment No.697 and 698. The petitioner-company has the approval for production of four million tons of iron ore per annum from lease No.1; 1 million ton of iron ore per annum from Lease No.2, and 1.2 million tons of iron ore per annum from Lease No.3. Further, it is having all the statutory clearances including the clearance under Section 2 of the Forest (Conservation) Act, the clearance under Environment (Protection) Act and the clearance under Pollution (Control) Act and it had made all necessary applications for grant of necessary clearance under the Pollution (Control) Act and the authorities accorded necessary permissions under the said Act. The petitioner has commenced the mining operations after obtaining necessary clearance from the Pollution Control Board and is continuing the mining operations as per the norms of the Pollution Control Board. Besides the above, the Anantapur Mining Corporation, a partnership firm, owned by the promoters of the petitioner-company also holds some mining lease over an extent of 6.5 hectares in Sy.No.1 of Obulapuram village, for production of 0.8 million tons of Iron Ore per annum. Thus, the petitioner-company produces approximately 7 million tons of Iron ore from Ananthapur District. The petitioner- company having decided to set up an integrated steel plant of 10 million tons per annum capacity at Jammalamadugu, Kadapa District in order to convert the iron ore into steel, floated a subsidiary company viz., M/s. Bramhani Industries Limited in the year 2007 and commenced the construction of Steel Plant. The petitioner-company and its promoters have already invested approximately Rs.1500 Crores in the said Steel plant and the said plant is on the advanced stage of completion. 3. While so, the petitioner is being subjected to multifarious litigation by Mr. S.K. Modi and his company M/s. Bellary Iron Ore Pvt., Ltd., (BIOP) a neighbouring mine lease holder due to business rivalry with the petitioner. Earlier, the litigation initiated by M/s. Bellary Iron Ore Private Limited against the petitioner ended by an adverse order viz., in WA No.1540 of 2008 vide Judgment dated 15.12.2008. In the said proceedings, BIOP filed an application seeking a direction for Survey through Survey of India. While opposing the said prayer, the petitioner herein filed a detailed reply. But this Court did not accede to the request of the BIOP for a survey. The BIOP got complaints filed before the MOEF, Government of India. On that, the Government of India issued a letter dated 22.4.2009 directing the State Government to get the lease boundaries of the applicant and the BIOP surveyed through Survey of India and in the meanwhile, directed suspension of the forest clearance granted. The State Government gave a detailed reply dated 28.4.2009 bringing to the notice of the MOEF several events which were not noticed by MOEF while issuing its letter dated 22.4.2009. On being apprised by the State Government, the MOEF issued a letter dated 1.5.2009 keeping its earlier letter dated 22.4.2009 in abeyance. Then, BIOP filed independent writ petition along with S.K. Modi, its Managing Director, in W.P.No.201 of 2009 before the Supreme Court of India, under Article 32 of the Constitution of India seeking a direction to complete the survey in a time bound manner pursuant to the letter of MOEF dated 22.4.2009 through Survey of India. The said writ petition was disposed of on 1.5.2009 by recording the concessional statement made by the Counsel for MOEF agreeing to complete survey within six weeks. 4. Feeling aggrieved by the said order, the petitioner filed an application before the Supreme Court seeking clarification as well as for impleadment. On 23.7.2009, the learned Attorney General gave an oral assurance that the survey of India shall not proceed with survey operations until further orders. On 24.8.2009, one T. Ganesh filed an application, being I.A.No.2 of 2009 in W.P.No.201 of 2009 seeking to implead CEC and himself as party respondent. On that, the Supreme Court was pleased to issue notice. So far no further orders have been passed. The applicant viz., T. Ganesh was set up and financed by BIOP and that the father of the applicant filed WPNo.30880 of 2008 and brother of the applicant filed W.Ps No.9507/2009 and WP No.12662 of 2009 before this High Court. The CEC was made as party respondent No.4 by the brother of T. Ganesh and the said writ petitions were before this Court. In those writ petitions, the petitioner herein filed counter-affidavits and the matter was contested. On merits, a Division Bench of this Court dismissed the writ petitions vide judgment dated 17.9.2009 on the ground that the writ petitioner has no locus standi to file the writ petitions and prosecute the same. The legal position held in the judgment is equally applicable to T. Ganesh. 5. The dispute raised by BIOP pertains to a small portion of mining lease comprising of 25.98 hectres in Obulapuram village. There exists even till date a valid common boundary Mining Agreement between BIOP and the applicant. There is no dispute with reference to any of the other lease areas of the applicant. The procedure adopted by the Central Empowered Committee appears to be an unprecedented procedure for the following reasons: (i) The Powers and functions of the Committee as per orders of the Supreme Court in WP (Civil) No.202 of 1995 and 171 of 1996 in terms of Notification File No.1-1/CEC/SC/2002, dated 3.6.2002 are : “Pending interlocutory application in these writ petitions as well the reports and affidavits filed by the States in response to the orders made by the Court, shall be examined by the Committee and their recommendations will be placed before the Court for orders 6. Any individual having any grievance against any steps taken by the Government or any other authority in purported compliance with the orders passed by this Court will be at liberty to move the Committee for seeking suitable relief. The committee may dispose of such applications in conformity with the orders passed by the Court. Any application which cannot be appropriately disposed of by the Committee may be referred by it to the Court…” (ii) Further, Notification No.2 No.1-1/CEC/2002 dated 20.6.2002 provides the Rules and Procedure. The relevant portion of the said notification is extracted herein: 1. “Any person shall be at liberty to move the Central Empowered Committee, hereinafter referred to as the Committee, by filing any application for seeking suitable relief against any action taken by the Central/State Governments or any other authority, regarding: (a) Deforestation, encroachments, working of the wood based Industries, working plans, compensatory afforestation, plantations, regeneration, illegal felling and transportation of timber, illegal mining in forest area, and any other conservation issue; and (b) the implementation of the Indian Forest Act, 1927, Wild Life (Protection) Act, 1972, Forest (Conservation) Act, 1980, Environment (Protection) Act, 1986 and the National Forest Policy, 1988 including the Rules, Regulations and Guidelines framed thereunder; in respect of which the Supreme Court has passed orders in W.P.Nos.202/95 and 171/96.” (iii) On a plain reading of the said two notifications, it is apparent that the committee has been appointed to assist the Supreme Court and to consider applications filed by any person concerning the issues on which orders have been passed by the Supreme Court of India in W.P.Nos.202 of 1995 and 171 of 1996. (iv) Admittedly, the present proceedings do not arise out of the said two writ petitions nor do they pertain to the issues on which the Court passed any orders in the above-referred two writ petitions. The Supreme Court never referred W.P.No.202 of 2009 to Forest Bench. The present dispute is purely a boundary dispute between two neighbouring mine lease holders. The issue was dealt with in detail by this Court in WA No.1540 of 2008 vide judgment dated 15.12.2008 wherein it directed parties to approach the Civil Court for obtaining relief. (v) Further more, while the matter is still pending before the Supreme Court, CEC, suo moto, without any direction proceeded with the matter, conducted exparte proceedings and finally submitted even a report to the Supreme Court. Till date no even a copy of the said report was furnished to the petitioner and the petitioner with great difficulty obtained from media part of the Report dated 19.11.2009. The report dated 19.11.2009 has not yet been considered by the Supreme Court but the CEC has shockingly proceeded to issue a letter dated 23.11.2009 to the Chief Secretary, Government of A.P., advising to stop all mining activities in all the mines and further stop transportation of ore already extracted. The exercise of such power by the CEC does not appear to be in sync with Constitutional scheme of separation of powers amongst various organs of the State. (vi) The Central Empowered Committee appears to have issued a notice to State of A.P., and not to this petitioner company directing the officials to attend a Meeting on 5.10.2009 and also issued a letter to the Principal Chief Conservator of Forests, Andhra Pradesh, Hyderabad dated 13.11.2009 calling for some crucial information. The Principal Chief Conservator of Forests, Hyderabad furnished the information sought for on 17th November. It is un- understandable now a report of such volume with such information could be made ready, processed, approved by all members and was released to Media and was filed in the Supreme Court on 19.11.2009 itself. The quick succession events speak volumes. Unfortunately, the State of Andhra Pradesh is fully aware of the same. 7. The other grounds on which the report dated 19.11.2009 and consequent letter dated 23.11.2009 are susceptible are as under: (i) to the best of knowledge of the applicant the Central Empowered Committee has never filed any report or recommendation in any matter not pertaining to Forest Bench or the I.As in the writ petition No.202 of 1995 and W.P.No.171 of 1996. (ii) It was stated at the outset of the report that the report was prepared pursuant to the orders of this Court dated 24.8.2009 which is incorrect. It can be seen from the proceedings of the Court dated 24.8.2009 that this Court was pleased only to issue the notice in I.A.No.2/2009 which was filed seeking impleadment of the Central Empowered Committee. This Court never directed the Central Empowered Committee to enquire into the matter or to submit any report thereto. In fact, after 24.8.2009 the matter was not listed before the Court and the applicant has not yet filed its counter affidavit to the said I.A.No.2/2009 and no arguments were advanced on the issue of impleadment of Central Empowered Committee in this boundary dispute matter between two private companies. (iii) The Central Empowered Committee having issued the notice of hearing asking the officials of the Government of A.P., as well as Counsel for the applicant in I.A.No.2 of 2009 ought to have issued the notice to M/s Obulapuram Mining Company, the petitioner herein. The proceedings dated 5.10.2009 of CEC are without Notice and behind the back of the petitioner. No opportunity of being heard has been given to the present applicant by following the principles of natural justice. The Central Empowered Committee has not even followed the principles of natural justice and gave recommendations behind the back of the applicant which is violative of the principles of natural justice, more particularly the principle of audi alteram partam; (iv) The Central Empowered Committee besides not giving opportunity of being heard to the present applicant also visited or inspected the site in question. (v) The Central Empowered Committee lost sight of the statutory permissions accorded by the Director General Mines Safety, approving the common boundary mining agreement under Regulation 111(3) of The Metalliferrous Mines Regulations, 1961 dispensing with the statutory 7.5 meters buffer zone, which are still in force. Copies of the approval filed along with this application clearly establish that the report is inaccurate; (vi) No final orders were passed in I.A.No.2 of 2009 by this Court either impleading or rejecting to implead the Central Empowered Committee as party to the Writ Petition No.201 of 2009. (vii) The prayers in W.P.No.9507 of 2009, W.P.No.12662/2009 as well as prayer of T. Ganesh before this Court in I.A.No.2/2009 are one and the same. In view of the dismissal of the said writ petition by the common order dated 16.9.2009 by the High Court of A.P., in which Central Empowered Committee is also a Respondent, in all fairness, the Central Empowered Committee ought to have restrained itself from making present report at the instance of T. Ganesh since the High Court of A.P. held that the Brother of T. Ganesh who took similar plea which stand on the same footing was held to be not having locus standi to prosecute and make the same prayer. The Central Empowered Committee ought to have referred to the said proceedings and the outcome of the same in the present report. (viii) The Forest (Conservation) Act, 1980 does not deal with the complaints such as boundary disputes between or among lessees in a Forest area. The Forest (Conservation) Act, 1980 also does not deal with the disputes relating to village boundaries. The Forest Conservation Act also does not deal with the complaints relating to overlapping. In fact, there is no complaint by M/s Obulapuram Mining Company or M/s YM & Sons to the State Government complaining about the over lapping of their areas. The aspect of overlapping was detected only during the common survey on fixation of the lease boundaries of all five leases and for the purpose of preparation of the common sketch depicting all the five leases. (ix) The lease areas of five user agencies were granted at different points of time and were renewed at different points of time by drawing independent lease sketches to each of the lessee without reference to the lease boundaries of the adjoining lessees. This was done long time back i.e., few decades ago. There was no requirement under MMDR Act to have a combined sketch duly depicting the leases of the neighbouring lessees and all four sides. Accordingly, independent lease sketches were drawn and the lessees were enjoying their areas. (x) The common boundary mining agreement among the lessees and the approval for the same by the competent authority demolish the allegation that there existed an un- allotted area among the lessees. (xi) The Forest (Conservation) Act, 1980 does not deal with any individual complaints or any individuals or lessees or any violations by any user agency. The Forest (Conservation) Act, 1980 mandates that no State without the prior approval of the Central Government pass any order diverting any forest land for non forest purposes. (xii) This does not cover the cases or complaint relating to encroachment by the lessees into the neighbouring forest areas i.e., beyond the leasehold area and mining in the forest area. These encroachments are covered under the Indian Forest Act and the Provisions of Indian Forest Act alone shall apply as confirmed by Government of India in their Notification dated 7.12.1999. (xiii) The edifice on which the Central Empowered Committee proceeded with as if M/s Obulapuram Mining Company, the present applicant has committed certain violations of the provisions of the Forest (Conservation) Act, 1980 and this Court directed Central Empowered Committee to enquire and submit a report vide its order dated 24.8.2009 itself is wrong and incorrect. Therefore, the report is void ab-initio void and without jurisdiction besides being in violation of the principles of natural justice, since being an exparte report given without hearing the affected parties. (xiv) The Central Empowered Committee has pre conceived that there are some violations by this applicant, violating provisions of the Forest (Conservation) Act, 1980 under mistaken impression that mining was done by the lessee beyond its leased area and in an un-allotted forest area. Assuming without admitting that even if the allegation is taken on its face value the violation does not come under the purview of Forest Conservation Act, 1980. The offences relating to encroachment in the Forest Area comes under the purview of provisions of Indian Forest Act and the consequences such as consequent penalty for the same are different from the offences under the purview of the Forest (Conservation) Act, 1980. That in this regard the notification issued by the Government of India being notification dated 7.12.1999 clearly clarifies. 8. The CEC report dated 19.11.2009 has been publicized in the media but not provided to the applicant. Since the applicant has not been provided even with a copy of the CEC report dated 19.11.2009 the applicant reserves right to file a detailed objections to the said report on being provided with a copy of the same. The CEC without either issuing notice to the affected parties or hearing them appears to have pointed out certain defects and inconsistencies in the report of the Government of A.P., dated 28.4.2009 in its report and seems to have arrived at its own conclusion on the basis of incomplete material. 9. Further, the scope of W.P.No.202/2009 itself was to fix a time frame for the survey to be conducted through Survey of India. The petitioner filed I.A.No.1 of 2009 opposing the said prayer in view of the complicity between BIOP and the Survey of India. The CEC has not considered any of the material placed before this Court nor considered the binding judgments dated 15.12.2008, 17.9.2009 between the parties of A.P. High Court wherein the prayer for survey through Survey of India was not acceded to in view of the objections raised by the applicant. Besides the report of CEC insofar it relates to survey is violative of the oral order and oral undertaking by the Learned Attorney General dated 23.7.2009 before the Supreme Court. No time frame has been fixed for the said survey and the mining operation in all mining lease areas are required to be stopped without any justification. 10. It is further stated that there are thousands of employees directly/indirectly employed with the applicant in its activities on a daily basis. Sudden and abrupt suspension of its operation both mining and transporting of the iron ore would cause great irreparable loss to all those dependant on the applicants mining activities. Every day about 1000 trucks transport the material and about 4000 people depend on such transport industry alone and all the trucks would be stranded and cause great loss to all the concerned. 11. It is also submitted that the entire income arising from the mine is reinvested for setting up Brahmani Steel Plaint at Jammalamadugu in Dr. Y.S. Rajashekar Reddy, Kadapa District of A.P. and already about 1500 Crores of promoters money has been invested in the steel plant. The steel plant project shall also be jeoparadized if the revenue arising from the mines are abruptly stopped and thereby cause paucity of funds for the Steel plant, which is at a very advanced stage. The entire source of finance for the steel plant is only from the income arising from the petitioner’s mines. 12. While so, the Government of A.P., issued the impugned G.O., stating that the Principal Chief Conservator of Forests has constituted a Three Member Committee and submitted its report on 20.11.2009, which revealed certain inconsistencies on the location of inter village boundary between Obulapuram and H. Siddapuram villages undertaken by State High Level Committee under the Chairmanship of Chief Conservator of Forests, Ananthapur. Further, the CEC advised to the Supreme Court to take immediate steps to stop mining operations, including the transportation of already mined material in respect of six mines dealt with in Central Empowered Committee’s report. 13. Insofar as the leases pertaining to 39.5 hectares and Ananthapur Mining company as well as the leases relating to Malpangudi are concerned, the village boundary has no relevance, since they are away from the village boundary, but still the Government of A.P. choose to suspend the mining operations on the ground that the same committee complained about the alignment of the village boundary. 14. Insofar as the dispute relating to M/s. Bellary Iron Ores Private Limited and the writ petitioner is concerned, the Government of A.P., has already taken categorical stand in writing by submitting the compliance report as well as by issuing the memo dated 15.7.2009, which found part of the records of the Supreme Court in W.P.No.201 of 2009 and it is estopped from taking any stand contrary to the same. Therefore, the suspension of mining operations is illegal. 15. Further the village boundary between Obulapuram and H. Siddapuram villages was relaid by the A.P. State High Level Committee at the instance of BIOP and the entire record from part of W.P.No.645 of 2008 and W.A.No.1540 of 2008 in which the Division Bench of this Court was pleased to consider the same and against which, BIOP has not filed any SLP. Therefore, the State Government having got conducted the survey for about three months by the State High Level Committee with latest survey equipments and experts in survey, cannot rely upon the inspection report of the Three-Member Committee in which there is no expert in survey to which survey and land records or Mines and Geology Department are not parties. 16. Being the lessee, the petitioner-company was not informed of about the constitution of three member committee, the scope and the purpose for which the committee desire to inspect and deal with and finally even the purported report of the Three Member Committee has not seen the light