Skip to content


Mspl Limited, Rep by Its Executive Director. Vs. the State of Karnataka Rep by Its Secretary Department of Mines and anr. - Court Judgment

LegalCrystal Citation
SubjectMines And Minerals
CourtKarnataka High Court
Decided On
Case NumberRegular Second Appeal No. 834 of 2002, C/w RSA No. 835 of 2002
Judge
Reported in2009(1)KCCR5(SN)
ActsConstitution Of India - Articles 226, 227; Mineral Concession Rules, 1960 - Rules 59, 30, 7A(1), 60, 24A95); Mines and Minerals (Development & Regulation) Act, 1957 - Sections 30, 11(2), 17A
AppellantMspl Limited, Rep by Its Executive Director.
RespondentThe State of Karnataka Rep by Its Secretary Department of Mines and anr.
Appellant AdvocateA. Ravi Shankar, Adv.
Respondent AdvocateA.G. Shivanna; R.S. Ravi, Advs.
Cases Referred

 

1. Amritlal Vs Union of India Air 1973 Gujarat 117
2. Amritlal Vs Union of India AIR 1976 SC 2591
3. State of Tamil Nadu Vs M/s Hind Stone AIR 1981 SC 711
4. S. Sundaram Vs R. Pattabbiraman AIR 1985 SC 582
5. State Of Karnataka Vs Dundamada Shetty ILR 1993 KAR 2605 - AT 2649
6. Secretary, Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35
7. Shamsher Singh v. State of Punjab (1974) 2 SCC 831: AIR 1974 SC 2192
8. R.K. Jain v. Union of India (1993) 4 SCC 120: 1993 AIR SCW 1899
9. Samatha Vs. State Of Andhra Pradesh &
Others' AIR 1997 SC 3297
10. Virendar Gaur v/s State of Haryana (1995) 2 SCC 577 : 1995 AIR SCW 306
11. Rural Litigation and Entitlement Kendra v/s State of U.P., 1969 Supp (1) SCC 504 : AIR 1989 SC 594
12. Chhetriya Pradushan Mukti Sangarsh Samiti v/s State of U.P., (1990) 4 SCC 449b: AIR 1990 SC 2060
13. Subhash Kumar v/s State of Bihar, (1991) 1 SCC 598: 1991 AIR SCW 121
14. Sachidanand Pandey v/s State of West Bengal, (1987) 2 SCC 295 : AIR 1987 SC 1109
15. State of Bihar v/s Murad Ali Khan (1988) 4 SCC 655: AIR 1989 SC 1
16. M.C. Mehra v/s Union of India, (1992) 1 SCC 358: 1991 AIR SCW 2989
17. Indian Council for Enviro-Legal Action v/s Union of India, 1995 3 SCC 77: 1995 AIR SCW 1797
18. Tarun Bharat Sangh, Alwar v/s Union of India (1992) 2 SCC 448: 1992 AIR SCW 102
19. Vellore Citizen's Welfare Forum v/s Union of India (1996) 5 SCC 647: 1996 AIR SCW 3399
20. M/s. Colorock Pvt. Ltd. Vijaywada v/s The Director of Mines &
Geology, Government of A.P., (1983) 3 Andh LT 39
21. M/s. Anupama Minerals v/s Union of India, AIR 1986 Andh Prqa 225
22. M/s Yashwant Stone Works v/s State of U. P., AIR 1988 All 121
23. Upendra Jha v/s State of BIHAR, air 1988 Patna 263
24. Ambalal Manibhai Patel v/s State of Gujarat, 1986 (27) 2 Guj LR 1073
25. Ambika Quarry Works v/s State of Gujarat (1987) 1 SCR 562: AIR 1987 SC 1073
26. State of MP. B/S Krishnadas Tikaram, 1995 Supp (1) SCC 587
27. Tarun Bharat Sangh, Alwar v/s Union of India, 1993 Supp (3) SCC 115
28. State of Bihar v/s Bansi Ram Modi, 1985 Supp 1(I) SCR 345: AIR 1985 SC 814

Excerpt:
[d.v. shylendra kumar, j.]  constitution of india - articles 226, 227; mineral concession rules, 1960 - rules 59, 30, 7a(1), 60, 24a95); mines and minerals (development & regulation) act, 1957 - sections 30, 11(2), 17a -- the notification dated 15-3-2003 [annexure-b] had been issued by the state government under rule 59 of the rules, inviting applications for grant of mining lease in respect of various extents of government land notified under the notification. rule 59. rule 60 of the rules governs only the applications made pursuant to the notification issued under rule 59. the disposal of applications for grant of mining lease is by the state government. in the present case, the very land belonging to the state government. so also the leases granted under this notification. grant of.....(this writ petition is filed under articles 226 and 227 of the constitution of india praying to quash the communication dated 6-12-2004 issued by the first respondent vide annexure-k, in so far as it recommends the grant of mining lease to respondents 4 and 5, and etc.)writ petition is by a limited company, which has filed an application on 16-4-2003 [copy at annexure-c to the writ petition] seeking for lease of an extent of 298.5 ha. of land for mining operation for a period of 30 years to exploit iron ore from the said government land and in response to a government notification dated 15-3-2003 [copy at annexure-b to the writ petition] informing the general public that the areas mentioned in the annexure to the notification are available for regrant under rule 59 of the mineral.....
Judgment:

(This writ petition is filed under articles 226 and 227 of the constitution of India praying to quash the communication dated 6-12-2004 issued by the first respondent vide annexure-k, in so far as it recommends the grant of mining lease to respondents 4 and 5, and etc.)

Writ petition is by a limited company, which has filed an application on 16-4-2003 [copy at Annexure-C to the writ petition] seeking for lease of an extent of 298.5 ha. of land for mining operation for a period of 30 years to exploit iron ore from the said government land and in response to a government notification dated 15-3-2003 [copy at Annexure-B to the writ petition] informing the general public that the areas mentioned in the annexure to the notification are available for regrant under Rule 59 of the Mineral Concession Rules, 1960 [for short, the Rules]; that such an application will be considered in accordance with the provisions of the Mines and Minerals (Development & Regulation) Act, 1957 [for short, the Act] and the Rules and subject to the compliance of all requirements of this Act and the Rules and other statutory powers and advising the interested persons to inspect the area and satisfy themselves about the availability of mineral deposits and to apply in the prescribed form addressed to the director of mines and geology, Bangalore.

2. It is such a person who has presented this writ petition apprehending that the effort of the petitioner to secure the lease for the applied extent of government land, may prove futile, in the light of certain developments, particularly, the first respondent State of Karnataka having recommended to the central government, the case of fourth respondent M/s Jindal Vljayanagar Steels Ltd., for issue of no objection/consent for grant of mining lease in respect of 200.73 ha. for mining iron ore and also to an extent of 179.70 ha. having been recommended in favour of the fifth respondent M/s Kalyani Steels, for approval of the central government in terms of the communication dated 6-12-2004 [copy at Annexure-K to the writ petition] as per Section 5(1) of the Act and as no more land is available for grant of lease in favour of petitioner in the said block and survey numbers for which the petitioner had applied for, the petitioner has approached this court praying for grant of the following relief:

a) Call for records and issue a writ in the nature of writ of certiorari or any other writ, order or direction, quashing the communication No C.I/111/MMM/ 2004 dated 6-1-2004 issued by the respondent No 1, vide Annexure-K in so far as it recommends the grant of mining lease to respondent No 4 and respondent No 5;

b) Issue a writ or order or direction to the respondent No.1 to grant mining lease for the area mentioned in serial No.1 of the notification No.CI. 16 MMM 2003, Bangalore dated 15-3-2003 vide Annexure-B to the petitioner to the extent of 298.5 as sought by the petitioner in its application No.997 AML 2003 vide Annexure-C;

c) In the alternative, direct the respondent Union of India to consider and dispose of the petitioner's representation vide Annexure-L and M before passing any order on the proposal of the respondent No 1 State of Karnataka contained in its communication No CI/111/MMM/2004 dated 6-12-2004 vide Annexure-K;

d) Grant such other/further relief/s as this Hon'ble Court may deem fit in the facts and circumstances of the case and to meet the ends of justice.

3. Petitioner has sought the above prayers pleading that the extent of land available in the particular block against which the petitioner had applied for, figuring at Sl No.1 in the list of lands notified for grant of mining leases relating to available land in Bellary district, attached to the notification dated 15-3-2006 at Annexure-B was to an extent of 530 ha. and the remaining extent either being not notified or having already been granted to some other persons and the proposal for seeking the consent of the central government in favour of respondents 4 and 5, which proceedings if taken to its logical conclusion, such persons getting mining leases at the cost of the petitioner and grant of mining lease in their favour as also recommendation for consent of the central government in their favour being illegal, such recommendation is to be quashed by issue of a writ of certiorari and further direction issued to the respondents to take steps to grant the mining lease in favour of the petitioner for the extent it has applied for.

4. Principal contentions urged in support of the writ petition are that: The state government should not have made any recommendation at all in favour of the fourth respondent M/s Jindal Vijayanagar Steels Ltd., as this respondent was not even an applicant for grant of mining lease of any extent of government land in response to the notification dated 15-3-2003 issued in terms of Rule 59(1) of the Rules and the recommendation in favour of the fifth respondent M/s Kalyani Steels Ltd., is also vitiated for the reason of improper consideration of several applications which had been filed for grant of mining lease particularly showing favourable treatment in favour of fifth respondent without any justification or legal validity and at the same time not considering the application of the petitioner in a proper manner and preferring the fifth respondent for grant of mining lease to an extent of 179.70 ha. over and above the claim of the petitioner; that while doing so, the provisions of the Act and the Rules have not been properly applied or appreciated for making use of the impugned recommendation under Annexure-K; that the entire proceeding for consideration of the application is vitiated; that it is required to be quashed.

5. It is urged that while the petitioner was the most meritorious applicant for grant of mining lease to the extent that it had applied for, the state government had acted in a biased and preferential manner in favour of respondents 4 and 5 only to grant mining leases in their favour at the cost of all other applicants by making a farce of inviting applications, receiving them, considering them and recommending them etc,. while the state government had a pre-determined mind to grant mining lease in favour of respondents 4 and 5 and having not followed the procedure as contemplated under the Act and the Rules, the recommendations at Annexure-K are vitiated.

6. It will be of interest to notice here that the petitioner in fact was an aspirant for grant of mining lease for an extent of 298.5 ha. even prior to the issue of notification dated 15-3-2003 and had made an application on 24-1-2001 for such purpose. The state government in fact had processed that application and had sought for relaxation in terms of Rule 60 of the Rules to grant mining lease in favour of the petitioner by avoiding the process of going through Rule 59 of the Rules, but the central government having not agreed for the same, the state government was compelled to notify the lands which had been held under lease by other persons and which had been surrendered, in terms of Rule 59 of the Rules and the petitioner had applied again in terms of Annexure-C application. It is urged that in this background the state government should have recommended the case of the petitioner for grant of mining lease of government land to such an extent and not taking the earlier development into consideration is also a circumstance which vitiates the present proceedings.

7. Notices had been issued to the respondents, regarding admission of writ petition. Fifth respondent, which is represented by counsel, was the first person to file statement of objections opposing writ petition. Much later, the fourth respondent also has been represented by counsel and has also filed statement of objections. Both these respondents have opposed the petition and pressed for dismissal of the writ petition.

8. When the writ petitioner filed IA-II for stay of further proceedings, both respondents 4 and 5 filed their objections and opposed' grant of any stay at that stage. While the application was heard, it was understood by the learned counsel for the parties that instead of passing an order on the interim prayer, the writ petition could be taken up for disposal on merits.

9. This writ petition was clubbed with WP No. 11110 of 2006 and both the petitions were admitted on 23-8-2006 by issue of Rule.

10. First respondent-state and second respondent director of mines and geology were represented by the Additional Government Advocate and filed their statement of objections on 22-8-2006. In the statement of objections filed on behalf of the State, while the factual averments are not disputed, what is contended is that what has been sent to the central government in terms of Annexure-K communication is only a proposal; that the writ petition has been filed prematurely; that the state government has not finalized grant of mining lease in favour of any persons so far, that even if the petitioner's application is rejected, the petitioner will have a remedy of revision in terms of Section 30 of the Act; that the petitioner could have invoked the revisional jurisdiction of the central government even in respect of grievances as urged in this writ petition and therefore the writ petition deserves to be dismissed, as there is no compelling reason for this court to examine the contention of the petitioner in writ jurisdiction.

11. The petitioner has filed rejoinder to the statements of objections filed on behalf of the respondents 4 and 5 as well as on behalf of the state. The state government on its part has placed additional affidavit sworn to by one K.N Rajanna, Additional Director of Mines and Geology, Bangalore, for the purpose of placing information before this court in terms of Annexure-R1 to 6, produced along with the affidavit, and for clarifying that the state government has not effected any change in the policy in the matter of grant of mining leases as had been indicated in the earlier affidavit sworn to by Sri Mahendra Jain, Secretary to Government, Commerce and Industries Department. Another additional affidavit of Sri Mahendra Jain sworn to on 19-10-2006 has also been placed before the court purporting to comply with the direction issued by this court on 27-9-2006. To this affidavit is attached Annexure-R7 to 9, available from records, as also an earlier affidavit sworn to by Sri Mahendra Jain on 23-9-2006, to which is appended Annexure-R1, which is a statement indicating details of the applications considered by the Director of Mines & Geology and the applications considered by the Hon'ble Chief Minister and the applications yet to be considered in respect of 36 items of lands notified for grant of mining lease in Bellary district in terms of the notification dated 15-3-2003. This affidavit and the annexures therein indicate that an extent of 149.57 ha. of land had been recommended for getting consent of the central government for grant of mining lease in favour of M/s Kariganur Industries Pvt Ltd., pursuant to the hearing that had taken place by the director of mines and geology on 22-12-2003 and the recommendation made thereon; that an extent of 530 ha. of land had been notified for grant of mining lease at Sl No 1 of the notification dated 15-3-2003 and the subject matter of this writ petition being the balance extent of land available in this block, it has been recommended in favour of respondents 4 and 5, as indicated earlier. It is also indicated that even in respect of earlier recommendations in favour of M/s Kariganur Industries Pvt. Ltd., WP No 7249 of 2005 is pending before this court and that notwithstanding the communication addressed to the central government, indicating the state government's intention to withdraw this recommendation made in favour of respondents 4 and 5 and to return the file and papers relating to the recommendation in favour of respondents 4 and 5 pursuant to the hearing held by the Hon'ble Chief Minister on 25-10-2004 and 4-11-2004, the central government has nevertheless granted its consent for such grant of mining lease in favour of fourth respondent on 27-6-2006 and in favour of fifth respondent as on 8-6-2006.

12. In the statement of objections filed on behalf of the fourth respondent, what is essentially urged is that the prayer sought for in the petition does not survive for consideration any more, as the central government has already granted its approval in favour of the answering respondent for grant of mining lease to an extent of 298.50 ha. as had been sought for by this respondent; that the petitioner having not availed of an efficacious alternative remedy under Section 30 of the Act read with Rule 54 of the Rules, the writ petition is liable to be dismissed for not availing the alternative remedy; that the petitioner having not challenged the subsequent orders passed by the central government, passed after following the procedure contemplated under Rule 26 of the Rules, and that order itself having not been challenged and what is challenged being the mere consequential recommendation, the writ petition is not tenable; that the writ petition is also hit by delay and laches; that the interpretation as sought to be placed by the petitioner under Section 11 of the Act and Rules 59 and 60 of the Rules particularly for the purpose of contending that either there is no valid application in the eye of law made government could not have considered an earlier application filed by the answering respondent for the purpose of grant of mining lease in respect of a land notified under the notification at Annexure-B to the writ petition, issued under Rule 59 of the Rules, is totally misconceived and is a distorted version sought to be read into this provision; that the provisions of Rule 60 should not be read in isolation; that the interpretation and meaning attributed to Rule 60 by the petitioner, if accepted would virtually render the provisions of Section 11(2) of the Act as also the provisions of Rule 59(2) of the Rules nugatory; that the legal interpretation apart, in the light of the directions issued by this court in WP No 35915 of 2001, the state government was bound to consider the application of the answering respondent for grant of mining lease and the petitioner having deliberately suppressed this aspect of the matter, the writ petition is liable to be dismissed; that in terms of Section 11(2) of the Act, the application of the answering respondent was required to be considered by the state government even otherwise also; that the earlier recommendation if any had been made by the state government in favour of the petitioner it is of no consequence in law, as the central government has directed the state government to notify all available surrendered lands for grant of mining lease in terms of Rule 59 of the Rules; that the answering respondent had the capacity to utilize the mined ore for captive consumption in a plant erected by the respondent already established, whereas the petitioner was still in the process of establishing one, if at all and if the petition averments are to be accepted, this respondent is certainly a better and meritorious applicant and the recommendation was fully in consonance with the provisions of the Act and the Rules; that there is no need for disturbing the recommendation made in favour of the answering respondent and the state government having taken into account all relevant considerations, particularly about the merits and demerits of every applicant and having examined the capacity, competence and experience of the answering respondent, the state government has rightly recommended its application favourably; that it was in order and no interference is called for and has urged for dismissal of the writ petition.

13. In the statement of objections filed on behalf of the fifth respondent, while the availability of alternative remedy is urged as a ground and therefore urged not to entertain the writ petition, what is pointed out is it is not demonstrated that the extent of 180 ha. recommended in favour this respondent, has not been shown to be conflicting with the interest of the petitioner, who had sought for grant of mining lease in respect of 298 ha. out of total area of 530 ha. of land in this block, and even otherwise, an extent of 180 ha. of land will be available after fully acceding to the request of the petitioner, the recommendation/grant of such extent of land in favour of the answering respondent does not conflict with the interest of the petitioner and therefore the challenge to the recommendation made in favour of the answering respondent need not to be examined.

14. The fifth respondent has also contended that the interpretation as sought to be placed by the petitioner in respect of the provisions of Section 11 of the Act is self-serving and not tenable; that the recommendation in favour of the answering respondent and the case for recommendation in favour of the petitioner are all in consonance with the provisions of the Act and the Rules; that all actions taken are in consonance with the procedural requirement; that the answering respondent also is one who needs ore for captive consumption at its plant set up at Ginigera village in Koppal district, an industrially backward district in the state of Karnataka; that the petitioner not having any steel plant vis-a-vis the answering respondent who had set up a steel plant, the answering respondent's application for grant of mining lease being more meritorious than that of the petitioner, the action of the state government is sustainable in accordance with the provisions of the Act and the Rules and the writ petition being without merit is liable to be dismissed. This respondent has also urged that the writ petition is liable to be dismissed even on the ground of delay and laches and not availing of the remedy by way of revision as and when it could have been done is also urged as a ground for dismissal of the writ petition.

15. In response to the statement of objections filed on behalf of the fifth respondent, the petitioner has filed rejoinder, urging that the order passed by this court in WP No.35905 of 2001 at the instance of one Ziaulla Sheriff neither is one laying down any law nor interpreting the provisions of Section 11 of the Act and Rules 59 and 60 of the Rules; that the said decision cannot be stated as a precedent to be followed in later cases; that even in terms of the said order, while it enables consideration of pending applications of Ziaulla Sheriff, the present petitioner and impleading applicant in the writ petition, it definitely enables the fourth respondent's application also to be considered by the state government and for this reason the state government could not have considered the application of the fourth respondent, which was admittedly not in response to the notification dated 15-03-2003 and the application which had been filed much earlier, which had no force in law; that the interpretation sought to be placed on the provisions of sub-sections (2), (3) and (5) of Section 11 of the Act and Rules 35 is clearly untenable; that the writ petitioner had not questioned the recommendation made in favour of M/s Kariganur Iron and Steel Ltd., as what was recommended in favour of said company did not come in conflict with the application of the petitioner and the particular parcel of land which the petitioner had sought for, whereas it is in respect of the very land, recommendation had been made in favour of respondents 4 and 5 by the state government and therefore it became necessary for the petitioner to question the recommendation that had been made in favour of respondents 4 and 5; that the petitioner was not obliged to question or challenge the other recommendation or grant of lease in favour of other persons, which were not in conflict with the interest of the petitioner; the stand of the respondents that the writ petition should be dismissed on the ground of delay and laches is most untenable, as admittedly, when the writ petition was filed, the process of granting lease had not been concluded and therefore the question of delay or negligence never arises; that the petitioner has acted bona fide in invoking the jurisdiction for proper relief and therefore the writ petition should be allowed.

16. In the rejoinder filed by the petitioner in response to the statement of objections filed on behalf of the fourth respondent, such contentions to the rejoinder to the objections on behalf of the fifth respondent are reiterated. It is also further urged that what has been challenged by the petitioner in the writ petition is not merely an endorsement but an order of the state government, which is expressly not tenable; that the petitioner has been bona fide prosecuting its remedies against the state government, both at the level of state government as well as central government and there has been no letup in such efforts and the writ petition is to be allowed by setting aside the impugned endorsement/order etc.

17. In the light of such rival pleas, the writ petition has been heard at considerable length, after having been admitted on 23-8-2006.

18. The connected writ petition in WP No.11110 of 2006 was directed to be listed separately in terms of the order dated 19-10-2006 and this writ petition has been heard further.

19. Sri C.S. Vaidyanathan, learned Senior Counsel appearing for the petitioner and Sri D.L.N Rao, learned Senior Counsel appearing for respondents 4 and 5 have made very elaborate submissions, both on the factual and legal issues with reference to the pleadings and the statutory provisions and the records placed before the court by the learned Government Advocate. Sri B. Veerappa, learned Additional Government Advocate, appearing for respondents 1 and 2, has also been heard not only on the legal aspect but on various factual aspects and particularly the manner in which the state government has been dealing and disposing of the applications for grant of mining leases and as to whether the state government has been following the procedure as contemplated under the Act and the Rules in this regard and also as to whether the state government has been following any uniform norm in the matter of consideration of such applications for grant of mining leases. It is in the context of tracing a uniform pattern in the treatment meted out by the state government to such applications in the course of its various recommendations, decisions/orders, the state government had been called upon to produce records as well as to file affidavits of responsible officer.

20. Bereft of subtle variations and different interoperations sought to be placed on the provisions of the Act and the Rules, one main question that arises for consideration in this petition is as to whether the state government can consider an application filed by any person for grant of any mining lease, which is not one filed in response to any notification issued under Rule 59 of the Rules, in respect of any land notified for grant under such notification. The second question if that can be, is as to whether the state government has acted in a legal, bona fide manner in considering various applications that have been filed before the state government in response to the notification at Annexure-B.

21. While the answer to the first question will have some bearing on the prospects of the fourth respondent in whose favour the state government made recommendation for seeking the consent and grant of mining lease later even without an application filed subsequent to the notification and in response to the very notification, the answer to the second question, if it should be against the state government, will definitely have a greater consequence even on other persons who may not be parties to the present writ petition.

22. The facts for the purpose of answering the first question are not in dispute. The notification dated 15-3-2003 [Annexure-B] had been issued by the state government under Rule 59 of the Rules, inviting applications for grant of mining lease in respect of various extents of government land notified under the notification. While the petitioner was an applicant for grant of mining lease in terms of this notification, in so far as fourth respondent is concerned, it is also not in dispute that the fourth respondent was not an applicant for grant of mining lease in respect of any extent of land in response to this very notification, but had made an application much earlier and on its own, and that application had not been rejected by the state government. It is also not in dispute that the state government in fact has considered not only all such applications received immediately on the expiry of the period of thirty days from the date of notification but also applications like that of the fourth respondent which had been made much earlier i.e. even when the notification had not been issued, and had proceeded to consider all such applications as though one made on the same date. The consideration, it is urged by the learned Additional Government Advocate, to be in terms of the provisions of Section 11 of the Act.

23. For the purpose of considering the first question, it the context of the applications that had been filed either by the petitioner or by the fourth respondent, as it cannot have any bearing on the understanding and interpretation to be placed on Rules 59 and 60 of the Rules in the light of the provisions of Section 11 of the Act, as it stands subsequent to the amending Act 38 of 1999 with effect from 18-12-1999.

24. Submission of Sri C.S Vaidyanathan, learned Senior Counsel appearing for the petitioner is that a combined reading of the Rules 59 and 60 of the Rules very clearly indicates that for the purpose of grant of mining lease in respect of lands notified under Rule 59, the government is bound to consider only those applications that had been filed on the expiry of the period of 30 days as indicated in the very notification and not any other applications which might have been filed prior to the issue of the notification or filed after the first day of the expiry of the period stipulated in the very notification. Submission is that if there are any such applications, they are not valid for the purpose of consideration in terms of the Section 11 of the Act and such applications do not quality for consideration, if the state government clubs such ineligible applications along with the applications properly filed in terms of the notification like that of the petitioner, the consideration is bad. What is submitted is that the fourth respondent's earlier application which might have been filed and whatever stage it might have reached, the government, could not have considered that application against the notification dated 15.03.2003 particularly to the detriment of persons like the petitioner and that the very recommendation in favour of the fourth respondent is illegal for this reason and is liable to be quashed.

25. It is vehemently urged by the learned Senior Counsel that unless the central government, for reasons to be recorded in writing, has relaxed the rigour of Rule 59(1) of the Rules by exercising its power under Rule 59(2) of the Rules, the state government is not enabled to consider any applications otherwise than in terms of Rule 59 and in the as instant case, the central government having positively indicated that it is not in favour of relaxing the conditions in respect of any persons and having directed the state government to go through the requirement of Rule 59, the state government could not have considered the applications made otherwise than in pursuance of the notification issued under Rule 59 for grant of mining lease.

26. For the purpose of making good this submission, learned Senior Counsel has not only taken me through the provisions of Rules 59 and 60, but also has referred to the provisions of Section 11 of the Act in great detail. Learned counsel has pointed out to the changes that have been brought about to Section 11 in terms of the amended Act 38 of 1999 with effect from 27-12-1999 and has very vehemently urged that there is a clear distinction in terms of the provisions of sub-sections (2) and (4) of Section 11 of the Act for consideration of the applications; that while sub-section (2) deals with the situations where the grant of mining lease is in respect of virgin area and the second proviso to sub-section (2) of Section 11 of the Act governs only a situation of grant of mining leases in respect of virgin areas, the provisions of sub-section (4) of Section 11 of the Act deals with the areas which had already been held by any person either under a reconnaissance permit or prospecting licence or even a mining lease which have become available for issue of either a prospecting licence or mining lease and in respect of which a notification has been issued by the government in terms of Rule 59 of the Rules, about the availability of such areas for issue of a prospecting licence or mining lease. Submission is that the preferential treatment of the applicants is only in a situation under sub-sections (1) and (2) of Section 11 of the Act, but in a situation governed by sub-section (4) of Section 11 of the Act, preferences do not work and all applications received during the period as specified in the notification under Rule 59 have to be considered simultaneously, as if received on the same day. It is submitted that consideration is only in terms of the provisions of sub-section (3) of Section 11 of the Act and nothing else. It is also submitted that the provisions of sub-section (5) of Section 11 of the Act is also a pointer in this regard, which provision provides an exception or relaxation to the provision of sub-section (2) of Section 11 of the Act, -i.e. the preferences. What is urged is that the situation contemplated under sub-section (4) of Section 11 of the Act is fully and totally regulated by the provision of Rule 59 and 60 of the Rules and there is no scope for telescoping the provisions sub-section (2) of Section 11 of the Act into the provisions of sub-section (4) of Section 11 of the Act also.

27. Provisions of Section 11 and Rules 59 and 60 of the Rules read as under:

11. Preferential right of certain persons -

(1) Where a reconnaissance permit or prospecting licence has been granted in respect of any land, the permit holder or the licencee shall have a preferential right for obtaining a prospecting licence or mining lease, as the case may be, in respect of that land over any other person:

Provided that the State government is satisfied that the permit holder or the licencee, as the case may be,

(a) has undertaken reconnaissance operations or prospecting operations as the case may be, to establish mineral resources in such land;

(b) has not committed any breach of the terms and conditions of the reconnaissance permit or prospecting licence;

(c) has not become ineligible under the provisions of the Act; and

(d) has not failed to apply for grant of prospecting licence or mining lease, as the case may be, within three months after the expiry of reconnaissance permit or prospecting licence, as the case may be, or within such further period as may be extended by the said government.

(2) Subject to the provisions of sub section (1), where the State government has not notified in the official gazette the area for grant of reconnaissance permit or prospecting licence or mining lease, as the case may be, and two or more persons have applied for a reconnaissance permit, prospecting licence or mining lease in respect of any such area, the applicant whose application was receive earlier shall have the preferential right to be considered for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, over the applicant whose application was received later.

Provided that where an area is available for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be and the state government has invited applications by notification in the official gazette for grant of such permit, licence or lease, all the applications received during the period specified in such notification and the applications which had been received prior to the publication of such notification in respect of the lands within which such area and had not been disposed of shall be deemed to have been received on the same day for the purpose of assigning priority under this sub-section.

Provided further that where any such applications are received on the same day, the state government after taking into consideration the matter specified in sub-section (3) may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit.

(3) The matters referred to in sub section (2) are the following:

(a) any special knowledge of or experience in, reconnaissance operation, prospecting operation or mining operations, as the case may be, possessed by the applicant;

(b) the financial resources of the applicant;

(c) the nature and quality of the technical staff employed or to be employed by the applicant

(d) the investment which the applicant proposes to make in the mines and in the industry based on the minerals;

(e) such other matters as may be prescribed.

(4) Subject to the provisions of sub-section (1), where the state government notifies in the official gazette an area for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, all the applications received during the period as specified in such notification, which shall not be less than thirty days, shall be considered simultaneously, as if all such applications have been received in the same day and the state government, after taking into consideration the matters specified in sub-section (3) may grant the reconnaissance permit, prospecting licence or minting lease, as the case may be, to such one of the applicants as it may deem fit.

(5) Notwithstanding anything contained in sub-section (2) but subject to the provisions of sub-section (1), the state government may, for any special reasons to be recorded, grant a reconnaissance permit, prospecting licence or mining lease, as the case may be, to an applicant whose application was received later in preference to an application whose application was received earlier.

Provided that in respect of minerals specified in the First Schedule, prior approval of the central government shall be obtained before passing any order under this sub-section.

Rule 59. Availability of area for regrant to be notified (1) No area-

(a) Which was previously held or which is being held under a reconnaissance permit, prospecting licence or mining lease; or

(b) Which has been reserved by the government or any local authority for any purpose other than mining; or

(c) in respect of which the order granting a permit or licence or lease has been revoked under sub-rule (1) of Rule 7-A or sub-rule (1) of Rule 15 or sub-rule (1) of Rule 31, as the case may be; or

(d) in respect of which a notification has been issued under sub-section (2) or sub section (4) of Section 17; or

(e) which has been reserved by the state government or under Section 17-A of the Act

shall be available for grant unless -

(i) an entry to the effect that the area is available for grant is made in the register referred to in sub-rule (2) of Rule-& D or sub-rule (2) of Rule 21 or sub-rule (2) of Rule 40, as the case may be; and

(ii) the availability of the area for grant is notified in the official gazette and specifying a date being a date not earlier than thirty days from the date of the publication of such notification in the official gazette, from which such area shall be available for grant;

Provided that nothing in this Rule shall apply to the renewal of a lease in favour of the original lessee or his legal heirs notwithstanding the fact that the lease has already expired.

Provided further that where an area reserved under Rule 58 or under Section 17-A of the Act is proposed to be granted to a government company, no notification under clause (ii) shall be required to be issued.

Provided also that where an area held under a reconnaissance permit or a prosecution licence, as the case may be, is granted in terms of sub-section (1) of Section 11, no notification under clause (ii) shall be issued.

(2) The central government may for reasons to be recorded in writing, relax the provisions of sub-rule (1) in any special case.

60. Premature applications Applications for the grant of a reconnaissance permit, prospecting licence or mining lease, in respect of areas whose availability for grant is required to be notified under Rule 59 shall, if-

(a) no notification has been issued under that rule; or

(b) where any such notification has been issued, the period specified in the notification has been expired, shall be deemed to be premature and shall not be entertained.

28. Submission of learned senior counsel appearing for the petitioner is that the notification referred in the first proviso to sub-section (2) of Section 11 of the Act is a notification in respect of virgin areas, which was available for grant of mining lease or prospecting licence, even without a notification, the notification referred to in sub-section (4) is to cover a situation not already covered by sub-section (2) and therefore necessarily has be of an area which was held under a reconnaissance permit, prospecting licence or mining lease, as the case may be and which has become available for grant and therefore has to necessarily go through the procedure contemplated in Rule 59. Submission is that an earlier application made by a person like the fourth respondent can be considered for the purpose of grant of mining lease under the first proviso to sub-section (2) of Section 11, only in a situation where the grant of mining lease is in respect of a virgin area and not in respect of the land which had already been held under lease and which has become available. What is submitted is that in the latter situation, it is governed by sub-section (4) of Section 11 of the Act and in terms of Rules 59 and 60, in which event, the state government could not have considered the so-called earlier application of fourth respondent and said to have been not disposed of against a land notified as available in terms of the notification at Annexure-B, issued under Rule 59(2) of the Rules.

29. For the purpose of making good this submission, learned counsel for the petitioner has drawn the attention of the court to the legislative history of Section 11, the reasons as to why such changes were brought about in Section 11 of the Act. In this regard Sri Vaidyanathan, learned Senior Counsel, has drawn my attention to the report of the Expert Group set up to review the existing mining laws and regulations, particularly the discussions and recommendations of this expert group in respect of the provisions of Section 11, which are dealt with in paras-4.1.18 and 4.1.19 at pages 25 to 27 of the report. Attention is also drawn to the modification/amendments recommended in respect of Section 11, as available in pages 55 to 57 of this report, which are as under.

Table 41 to 44

30. The report itself had been placed before the Committee to review existing laws and procedure for regulation and development of minerals and the committee had looked into the report of the expert group in great detail and in turn has submitted its report during January 1998. The discussion relating to Section 11 of the Act figures in pares-2.1.20 and 2.1.23 occurred at pages 21 to 24 of this report and the amended recommendation by the committee in terms of the recommendation Nos.16 to 19 figuring at pages 131 to 133 of this report, which read as under:

Table 45 to 47

It is pursuant to such recommendations of the committee, the changes were brought about in the laws relating to the regulation and development of minerals and the provisos to Section 11 were amended by Act No 38 of 1999.

31. Sri C.S. Vaidyanathan, learned Senior Counsel appearing for the petitioner submits that in the light of such background and development, the changes brought about by amending Act No 38 of 1999 should be understood to be in consonance with and for giving effect to such objects. Submission is that if it was the intention of the Legislature that only applications filed during the specified period and in response to the notification issued under Rule 59(2) of the Rules alone are valid and to be considered, then it is not open to the government to consider any other application on the premise that some applications had been filed much earlier and were pending before the government without being disposed of. What is submitted is that there is an embargo placed on the government to consider such ineligible applications.

32. Sri Vaidyanathan has also placed reliance on the following decisions in support of his submissions, particularly for understanding the meaning of the phrase `shall not be entertained' as it figures in Rule 60 of the Rules:

Amritlal Vs Union of India [Air 1973 Gujarat 117]; and

Amritlal Vs Union of India [AIR 1976 SC 2591] [PARA-7]

Learned counsel, therefore, submits that there is a clear distinction between the provisions of sub-section (2) and sub-section (4) of Section 11 of the Act; that sub-section (2) of Section 11 of the Act applies to a situation where the area is available for grant, whereas sub-section (4) of Section 11 of the Act deals with a situation where the area was not available earlier, but becomes available only through notification. Reliance is also placed on the decision of the Supreme Court in the case of State of Tamil Nadu Vs M/s Hind Stone (AIR 1981 SC 711), and submits in this regard that unless the provisions are understood in the manner as canvassed by the learned senior counsel appearing for the petitioner, the provisions of sub-section (4) of Section 11 of the Act will become otiose or redundant and the interpretation which can bring about such a result should be avoided as should always be understood that the legislature will not make a change or introduce a provision which is either redundant or is of no effect.

33. Learned counsel for the petitioner submits that there is also a clear distinction between the notification issued for the purpose of sub-section (2) of Section 11 of the Act and the proviso to sub-section (4) of Section 11 of the Act and submits while in the case of a notification for the purpose of proviso to sub-section (2) of Section 11 of the Act it is in the nature of an invitation, in the case of notification under sub-section (4) of Section 11 of the Act it is in the nature of a disclosure and notifying availability and for considering all applications made only pursuant to the very notification.

34. Per contra, submission of Sri D.L.N Rao, learned Senior Counsel appearing for the fourth respondent, responding to such submissions made on behalf of the petitioner, is that there is no reason to read an embargo of this nature into the provisions of Section 11 of the Act; that while there is a mandate to the government to treat all applications received during the period of 30 days to be on par, the language of the first proviso to Section 11 clearly indicates that all pending applications and the applications received pursuant to the notification should be considered on par as though they were received on the same day and should be disposed of and therefore there is nothing wrong in considering the application of the fourth respondent also along with the applications received pursuant to the notification issued under Rule 59(2) of the Rules. Submission is that there is no statutory violation if an application of the persons like fourth respondent is considered and for making good this submission, referring to the provisions of Section 11 of the Act, as it stood prior to the amendment, learned senior counsel submits that even with the unamended provisions of Section 11, there were Rules 59 and 60; that if so, it cannot be contended that the applicability of the provisions of Rules 59 and 60 is only in a situation of the nature contemplated under sub-section (4) of Section 11 of the Act and that the understanding of the provision in such a manner would virtually amount to examining or understanding the provisions of the Act in the light of the provisions of the Rules, which is not an accepted method of interpretation.

35. Sri D.L.N. Rao submits that even Section 11 as it stood earlier, read with Rule 59 of the Rules by itself constitute a complete scheme and if so, there is no scope for inferring either Rule 59 or Rule 60 now in a different manner, just because the provisions of Section 11 have undergone some amendment; that it is contended that it is not open to the petitioner to put forth such a submission; that the petitioner is virtually estopped from so contending in the wake of earlier developments and particularly in the light of the directions that had been issued by this court in WP No 35915 of 2001, decided on 29-3-2004 [copy at Annexure-F to the writ petition], directing the State to consider all pending applications. For the purpose of understanding the scope of Section 11 of the Act and the Rules 59 and 60 of the Rules, this contention is not now examined and can be independently examined.

36. Submission in this regard is that even in terms of the provisions of Rule 60, while the provisions only provide for a fiction that the applications filed prior to the notification should be deemed to be premature and cannot be entertained, it does not positively say that such applications stand rejected and therefore the understanding can be that such earlier applications remained dormant and can get activated as and when a notification in terms of Rule 59 of the Rules is issued, when such applications also ripen and can be considered, Submission is that as the application [of the fourth respondent] had not been expressly rejected, it is simply kept pending by the government, should be considered on par with the applications received in response to the notification issued under Rule 59(2) of the Rules and that there is no illegality on the part of the government in considering such applications and there is no need for interfering with such act of the government by declaring the same as bad in law. Learned Senior counsel for the fourth respondent would submit that there is no deemed rejection under Rule 60 and therefore the earlier application of the fourth respondent had remained passive and had become active when the notification was issued.

37. It is also the submission of the learned senior counsel appearing for the fourth respondent that the language of the first proviso to sub-section (2) of Section 11 of the Act contemplates such a situation and in fact activates such dormant applications and if such is the provision under sub-section (2) of Section 11 of the Act, a different meaning cannot be attributed to Rule 60 nor an interpretation inconsistent with the first proviso to sub-section (2) of Section 11 of the Act can be given to Rule 60 and therefore the consideration of the application of fourth respondent is quite valid in law.

38. Submission of the learned senior counsel for the fourth respondent is that whenever the legislature intends to provide for a deemed rejection, it was being expressly mentioned as was found in Rule 11 of the Rules, which came to be deleted on 7-1-1993, also in Rule 22 and the deemed extension in terms of the Rule 24-A(6). Particular reference is made to Rule 22, which provides for rejection of the application if not disposed of within one year of filing of the application. Likewise, an express deemed refusal of renewal under Rule 24A(5) and deemed extension of 12 months under Rule 24A(6). Attention is also drawn to Rule 54 and the explanation to this rule, which is also deleted with effect from 7-1-1993. It is accordingly submitted that there is no illegality in considering the application of fourth respondent, which had not been rejected under any statutory provision, as it has been considered by applying the norms under sub-section (3) of Section 11 of the Act.

39. Sri D.L.N Rao has also drawn the attention of the court to the provisions of the report of the Committee as it occurs at para-2.2.21 at pages 22 and 23, and submits that the purpose of bringing about such changes were not for eliminating the earlier applicants but only to facilitate a uniform treatment to all the applications etc. Mr. Rao in this regard placed reliance on the decision of the Supreme Court for the understanding of the proviso, in the case S. Sundaram Vs R. Pattabbiraman [AIR 1985 SC 582] and also the decision of a Full Bench of this court in the case of State Of Karnataka Vs Dundamada Shetty [ILR 1993 KAR 2605 - AT 2649].

40. Sri B. Veerappa, learned Additional Government Advocate appearing for the state and the director of mines and geology, has while adopted the submission made by Sri D L N Rao, learned senior counsel appearing for the fourth and the fifth respondents, further submits that the writ petition is not tenable for the reason that the petitioner should avail of the statutory remedy available under Section 30 of the Act by filing a revision to the central government, if the petitioner is aggrieved by any order or endorsement issued by the state government. Learned AGA also submits that a combined reading of sub-sections (2) and (4) of Section 11 of the Act necessarily compels the government to consider the

applications made prior to the notification issued under Rule 59 of the Rules and those applications made till the time provided under the notification and the government having followed this procedure in fact after seeking for legal opinion from the Law Department, action taken is both legal and bona fide.

41. Submission of learned AGA is that the Rule cannot have an overriding effect on the provisions of the Act and that if it is the requirement of the first proviso to sub-section (2) of Section 11 of the Act that all applications filed before and made after the issue of notification should be considered together on par by an interpretation of the provisions of Rules 59 and 60, that cannot be prevented.

42. The answer to first question is depending on the consideration of such rival submissions made by the learned counsel for the parties.

43. In so far as the grant of mining lease is concerned, it is undoubtedly administering the largess of the State. Equal opportunity, fairness in dealing with the applications and uniform treatment are essential requirements while administering the largess of the State. In so far as the mining leases are concerned, they having been statutorily regulated in terms of the Act and the Rules, the authorities have to adhere to these provisions. Understanding and interpretation of the provisions of the Act and the Rules while should be in the context of the object of the Act and the purpose which it seeks to achieve i.e. the regulation of mining activities, one cannot lose sight of the fact, that in a situation as in the present nature, it is the question of administering the largess of the state. No applicant has a right per se for grant of a mining lease in his or her favour. What can be expected is an opportunity to apply and consideration of the application in terms of the statutory provisions.

44. Under the notification at Annexure-B grant of mining lease in respect of most of the government lands which were held under lease earlier had become available either on the expiry of the lease period or on the surrender of the lands by the lessees i.e. the area which has become available for regrant. The Act, as is suggestive in its caption, is one for development and regulated exploitation of the minerals and related activities. Extraction of minerals may be possible if the mineral is available in the first instance. Potential is assessed-first through prospecting operations, which can indicate the nature of the mineral and the extent of the availability of the mineral. It is thereafter the mining activity through the lease of lands containing mineral. Here again, it can be given to private persons or to the identified nominees of state or central government or mineral conserved in an area for a period for regulated exploitation of the mineral depending upon the present needs and the future developments.

45. Section 11 deals with the according of preferences to persons who seek for prospecting licence, more importantly in the matter of granting mining leases. Sub-section (1) of Section 11 of the Act indicates the preferences in favour of persons who had already held reconnaissance permit of prospecting licence for the purpose of grant of prospecting licence and mining leases respectively. However, this is made subject to such person satisfying the state government the conditions stipulated in the proviso to sub-section (1) of Section 11 of the Act. Sub-section (2) of Section 11 of the Act deals with the situation when there are applicants even without a notification calling for grant of reconnaissance permit or prospecting licence or mining lease and several persons have applied for the same object, the preference is normally in terms of the earlier applicants. The first proviso however indicates if the land is available and the state government has also invited applications through a notification, the application received during the period specified in the notification and the earlier applications, still remains pending, to be considered on par i.e. as if they were received simultaneously and disposing of them by applying the norms and terms contained in sub-section (3) of Section 11 of the Act.

46. The second proviso, which is one dealing with the situation of applications received on the same day, obviously is with reference to the main provision of sub-section (2) of Section 11 of the Act i.e. the preference being linked to the seniority of the applications and when several applications are made on the same day, as amongst them, the criteria in sub-section (3) of Section 11 of the Act being the deciding factor. Sub-section (3) of Section 11 of the Act indicates the yardstick for making selection under sub-section (2) of Section 11 of the Act when preferences by point of time cannot be worked.

47. Then comes sub-section (4) of Section 11 of the Act, of Section 11 of the Act and indicates that all applications received for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, made in response to a notification issued by the government, in a time span of not less than 30 days, to be considered without any preference by applying the yardstick in sub-section (3) of Section 11 of the Act.

48. Sub-section (1) of Section 11 of the Act yet again indicate that the preferences as are given under sub-section (2) of Section 11 of the Act, when they work, it can again be varied when the state government for any special reasons to be recorded, does so.

49. The preference indicated in sub-section (1) of Section 11 of the Act in favour of the persons as indicated therein is always to be maintained. Sub-section (2) of Section 11 of the Act deals with a situation where applications can be made and received when there is no notification and while such applications are pending, the government also notifies for issue of a permit, licence or lease, as the case may be. Sub-section (4) of Section 11 of the Act deals with the situation where applications are received pursuant to the issue of a notification. It can be seen that, persons who get preference under sub-section (1) of Section 11 of the Act are persons who already held a reconnaissance permit or prospecting licence and in the case of persons who had held lease earlier and who seek for renewal, though they are all situations which are governed by Rule 59 in the sense that for grant subsequently, it has to necessarily go through the procedure of notifying for availability, the first proviso to Rule 59 relieves of this requirement of notifying the availability in respect of the existing lease holders seeking renewal, the third proviso to Rule 59 achieves the same purpose in respect of the existing reconnaissance permit holders for the purpose of getting a prospecting licence or a mining lease, as the case may be.

50. If one keeps in mind that sub-section (4) of Section 11 of the Act had been introduced subsequently it only means that the situation governed here is a situation where the process is after the issue of a notification. While the issue of notification is optional in a situation covered under sub-section (2) of Section 11 of the Act i.e. when the land is otherwise available, issue of notification for the purpose of sub-section (4) of Section 11 of the Act i.e. land being made available under the notification is compulsory and therefore one can reasonably infer that sub-section (4) of Section 11 of the Act governs the situation where the land has become available for regrant, having been previously held under a reconnaissance permit or prospecting licence or mining lease etc. The availability is only after necessary entries are made in terms of sub-rule (2) of Rule 7-D of the Rules or sub-rule (2) of 21 or sub-rule (2) of Rule 40, as the case may be, and indicating that it will be available within 30 days after the issue of notification. It is virtually not only the publicizing the availability but also inviting applications.

51. Rule 60 of the Rules governs only the applications made pursuant to the notification issued under Rule 59. To avail sub-section (2) of Section 11 of the Act is one according priorities based on the seniority of the application, without a notification, the proviso is for the purpose of ascertaining the priorities without a notification is also followed by inviting applications. The first proviso is for the purpose of ascertaining the priority when the notification is also issued. The second proviso deals with the situation when applications are received on the same day.

52. As contended by Sri C.S Vaidyanathan, learned senior counsel appearing for the petitioner if sub-section (4) of Section 11 of the Act is to be taken to achieve nothing more than what is already achieved by second proviso to sub-section (2) of Section 11 of the Act, it is virtually otiose. It is for this reason that sub-section (4) of Section 11 of the Act should be taken to be governing a different situation normally a situation where a government land which was not available made through issue of notification by the state government availability for grant and if so, the provisions of Rules 59 and 60 of the Rules are fully attracted to such a situation. It is not that sub-section (4) of Section 11 of the Act is understood through Rule 59 or 60, the Rules 59 and 60 are understood to be for the purpose of sub serving the object of sub-section (4) of Section 11 of the Act and for effectuating the same.

53. In this background if one looks at Rule 59, under this Rule, what is notified is availability of area for regrant i.e. which had already been held under any type of grant or reservation and being notified thereafter. Rule 60 deals with only situations governed by Rule 59 and acts as a rider to Rule 59. While adherence to Rule 59 is compulsory in the case of areas which were held under lease etc. If there are further restrictions even in the matter of entertaining applications and an application for grant of privilege in respect of the land notified under Rule 59 cannot be entertained otherwise than in accordance with Rule 60. In the present situation, it is not in dispute that the land in respect of which the petitioner and the fourth respondent are aspiring, that it is the provision of first proviso to sub-section (2) of Section 11 of the Act which enables the consideration of the application of the type of the fourth respondent which was made earlier, and if the section had enabled such consideration of the earlier application of the fourth respondent, the Rules come in the way for non-consideration of the same, I am unable to appreciate this submission for the reason that Rule 60 seeks to regulate the manner of administering the state largess made available for regrant pursuant to the notification issued under Rule 59 and if, as contended by the learned counsel for the fourth respondent, Rules 59 and 60 were there even prior to the amended Act No 38 of 1999, if so should necessarily understood even in terms of the provisions of Section 11, there is no scope for considering or entertaining an application for grant of a privilege in respect of a notified area under Rule 59, otherwise than in terms of Rule 60. Rule 60 expressly confines the consideration of the applications received during the specified period in the notification issued under Rule 59. It obviously means that the application not made in consonance with the requirement of Rules 59 and 60 cannot be considered. If so, there is no scope for considering the application of the fourth respondent by the state government on the premise that the fourth respondent had made an application much prior to the issue of notification and as it had not been rejected, it was considered along with other applications made in response to the notification. It should be borne in mind that if the application made by the fourth respondent was in respect of any area which was not at all available having been held under lease in favour of some other person, the state government also could not have entertained the application at the time when it was made even otherwise. The state government cannot affortiorari consider such applications at a time when it can consider only the applications which have complied with the requirements of Rules 59 and 60 of the Rules.

54. One another reason as to why the consideration of the applications should be confined to only those applications made in response to a notification issued under Rule 59 of the Rules is that while an application is to be made with reference to the particular block or area as notified in the notification under Rule 59 and as in the instant case, it comprises of as many as 66 such blocks in Bellary district itself and in respect of each block, the applicant should indicate his intention to seek grant of mining lease, an application which had been filed earlier obviously being not with reference to the area made available under the notification, cannot be clearly and identifiably correlated to any of the blocks indicated in the notification and consideration of such earlier applications not with reference to the areas made available under the notification would lead to unnecessary confusion, ambiguity and controversy. When a fair opportunity to all applicants is the mandate of law and consideration on equal terms, it is essential that an application should be necessarily made with reference to an area made known under the notification itself and not with reference to any application which could have been made prior to the issue of the notification itself and with reference to an area not necessarily as contemplated in the notification. Even if an area as indicated in the application which had been filed earlier could correlate to any one of the areas or blocks as notified and indicated to be available under the notification also, even then such an earlier application cannot be and should not be considered, for the purpose of maintaining uniformity and according equal opportunity to all the applicants.

55. The recommendation of the committee suggesting modification in the mining laws and changes brought about by Act No 38 of 1999 for the purpose of ensuring that only valid applications filed in response to a notification under Rule 59 are considered and ordered in situations of granting any privilege in respect of areas which were already held under a lease or licence. Permitting applications which had been filed earlier and which had not been rejected also to be considered along with the applications filed in response to the notification under Rule 59, on the premise that the first proviso to sub-section (2) of Section 11 of the Act allows that or by giving such an interpretation to first proviso to sub-section (2) of Section 11 of the Act will only amount to ushering in an uncertainty and arbitrariness, as any application made at any point of time earlier can also be entertained and privileges granted.

56. The whole idea and object of codifying through the statutory provisions and regulating the function is to ensure certainty and uniformity. An interpretation which can lead to an uncertainty and permitting inconsistency cannot be resorted to, particularly for the purpose of saving applications like the fourth respondent. I am of the view that as the situation was governed by Rule 59, there is no escape from the operation of the provisions of Rule 60 and as the entertaining of the application of the fourth respondent by the state government is contrary to the provisions of Rule 60, it has to be held that the recommendation in favour of the fourth respondent itself is bad, as the state government could not have entertained or considered an application of the nature which the fourth respondent had made prior to the issue of notification under Annexure-B to the writ petition. Accordingly the first question is answered in favour of petitioner and against the fourth respondent.

57. In the light of the answer to the first question, the second question assumes some importance in the area of procedure that is required to be followed by the government by considering and disposing of the applications for grant of mining leases. While the provisions of the Act particularly Section 11 of the Act does throws some light about the manner in which the applications are required to be considered in exercise of power under Section 13 of the Act, the central government has framed Mineral Concession Rules, 1960. These Rules supplement the procedure to be followed. However, the Rules also cannot be said to be one laying down or providing full guidelines in the manner of disposal of the applications for grant of mining lease in respect of specified minerals.

58. Rule 22 deals with the applications for grant of mining lease and Rule 24 indicates the procedure to be followed when the application is a mineral not already been notified and in respect of which lease had been granted. Rule 26 mandates an opportunity of hearing to every applicant and a reasoned order to be passed in writing and to be communicated to the applicant if the application is rejected, indicating the reasons for refusal. Subsequent Rules provide conditions that may be imposed on grant of mining lease and other allied matters. In the present petition, we are also concerned with the effect of the provisions of Rules 59 and 60 of the Rules, which has already been discussed above.

59. The disposal of applications for grant of mining lease is by the state government. In the present case, the very land belonging to the state government. Being a largess of the State, if the state decides to administer the largess, it necessarily should be in a fair and non-arbitrary manner and in consonance with the Act and the Rules. While an applicant for grant of mining lease by mere making of application does not get any right, what an applicant can look upto and expect is adhering to the provisions of the Act and the Rules and according an opportunity of hearing and a fair treatment to all applicants.

60. So long as the action on the part of the state government is not arbitrary or whimsical and consideration of the applications are guided by the Act and the Rules, no fault can be found with the disposal of the applications by the state government. Having regard to the language of the Rules 21 to 24, it is obvious that it is the state government that has to take a decision on the subject of grant of mining leases in favour of any of the applicants. Opportunity of personal hearing being mandatory coupled with the duty for passing a reasoned order, it is inevitable that the decision should be by the very authority which grants hearing and considers the applications.

61. A perusal of the notification at Annexure-B dated 15-3-2003 issued in terms of Rule 59 of the Rules indicates that most of the areas notified for grant of mining leases in Bellary district are forest lands. Neither the counter filed by the state government and the several affidavits sworn to and filed by its officers nor the records placed before the court indicate as to whether the government had shown its awareness to majority of the parcels of lands proposed for grant of mining leases in Bellary district being in forest area, whether there was need for grant of mining leases in this area at the cost of forest wealth etc. Conservation of natural resources, maintenance of ecological balance and prevention of forages into natural wealth is the need of the hour and the responsibility of the government to ensure these goals are achieved. Likewise, the activity undoubtedly may be an inevitable activity for development and progress, there is undoubtedly a competition between the conservation and development. It is not known as to whether the government had undertaken any scientific study in this aspect of the matter before notifying the lands for grant of mining leases.

62. The present writ petition has arisen as the writ petitioner - an aspirant for grant of a mining lease - who had in fact applied prior to the notification itself and whose applications the state government had processed and had recommended to the central government for approval by granting relaxation from applicability/operation of the provisions of Rule 59 and central government instead having directed the state government to notify the lands in terms of Rule 59 and after such notification, the petitioner also having applied seeking for grant of a mining lease to an extent of 298.5 Ha, but the state government having recommended the cases of respondents 4 and 5 to the central government for grant of mining lease to an extent of 200.73 ha in favour of fourth respondent - M/s Jindal Vijayanagar Steels Ltd., - and an extent of 179.70 ha in favour of fifth respondent - M/s Kalyani Steels Ltd., - and the petitioner having no prospect of getting any lease in respect of any part of the land it had sought for, came up with this writ petition questioning the validity of the recommendation by the state government in favour of fourth and fifth respondents.

63. While in the case of fourth respondent, it was contended that the very application being one not made after the notification was not an application which the state government should have been considered and with this question answered in favour of the petitioner, the second question is now examining the manner of processing the applications and for such purpose, the state government was directed to place records before the court.

64. Several shortcomings are noticed on a perusal of the records placed before the court and the manner in which the notification had been issued. The notification does not indicate an outer time limit within which the applications are to be made. A perusal of the record indicates that the applicants had understood that the applications should be made immediately on the expiry of 30 days from the date of notification. While the applications should be made only after 30 days, it need not necessarily be made on the very next day. A perusal of the records indicates that all applications filed in response to the notification under rule 59 of the Rules have all been made on 16-4-2004. While in terms of the language of Rule 59, the state government cannot consider applications before the expiry of 30 days from the date of notification, thereafter up to what time the state government receives applications is an aspect which should necessarily find place in the notification itself. Otherwise, it leads to an element of uncertainty ushering in inconsistency and even arbitrariness.

65. Even about the personal hearing that is required to be accorded in favour of the applicants, the state government appears to have not followed any uniform norm. While at some point of time, the director of mines and geology was hearing the applicants and making recommendations to the secretary to government, who in turn was issuing orders for grant of mining leases, it is later changed to an opportunity of hearing being given to the applicants by the Minister concerned and the Minister passing orders. While the authority passing orders has not held the hearing, it is undoubtedly a violation of Rule 59 of the Rules, as it amounts to an authority required to take decision surrendering that power in favour of an officer hearing the applicants and the competent authority himself not applying his mind to the situation. The record does not necessarily inspire the confidence of the court to understand that the very authority hearing the applicants has taken a decision.

66. Though Rule 26 of the Rules indicates that it is only when the government refuses any application it can do it only after an opportunity of hearing to the applicants, in reality it is an opportunity to the applicants to present their cases and for comparative assessment of the merits of different applicants. The procedure can be broadly compared to grant of a stage carriage permit by a Regional Transport Authority when there are several aspirants. While under the Motor Vehicles Act, the grant of permit is purely a regulatory measure, in the case of mining lease, it is a combination of administering the largess of the state and a regulatory measure. In fact it is a great favour being conferred on the applicants for grant of mining leases and therefore all the more the need to adhere to the Act and the Rules and fair play.

67. Even in respect of item No 1 in the notification relating to Bellary district, which is the subject matter of competition amongst petitioner, respondents 4 and 5 and other vast number of applicants, is concerned, it is not clear from the records that the state government has accorded a uniform treatment to all the applicants. While the extent of lands notified for grant of mining leases at Sl No 1 is 530 ha, it is stated by the state government that out of this extent, what remains for consideration for grant of mining leases was only 380 ha, as an extent of 149 hectares of land had already been recommended in favour of M/s Kariganoor Iron and Steel Ltd., - also an applicant - in terms of letter No CL 17 MMM 2004 dated 11-2-2004.

68. The proceedings indicate that the applications of the petitioner, respondents 4 and 5 as also M/s Kariganoor Iron and Steel Ltd., and other applicants were under consideration before the Chief Minister, the then in-charge Minister of the portfolio, for grant of mining leases, while making recommendations in favour of fourth and fifth respondents. It is also indicated that a recommendation had already been made in favour of M/s Kariganoor Iron and Steel Ltd., in respect of an extent of 149.57 ha after the director of mines and geology had given an opportunity of hearing to the applicants and had made recommendations in favour of 10 of the applicants, whose applications he had considered. It is stated that the Secretary to Government had forwarded the recommendatory letters seeking for approval of the central government under Section 5 of the Act in favour of all these ten applicants, but later the state government sent a further communication withdrawing all the recommendations. It is also stated that notwithstanding withdrawal of the recommendations by the state government, the central government went ahead granting its approval in favour of five recommendations including that of M/s Kariganoor Iron and Steel Ltd., That is how it is indicated that while the Chief Minister was considering the applications in respect of item No 1 of the Notification in the available lands in Bellary district, only an extent of 380 ha was considered for grant.

69. The procedure followed by the state government in considering the applications in piecemeal and in installments is clearly violative of not only the equal treatment that is required to be given to all the applicants, but also the spirit of Rule 26 of the Rules. It is rioted that the state government had considered some applications, process them, make recommendations and grant leases in favour of them, as has been done in favour of a few applicants viz., M/s Vibhutigudda Mines Pvt. Ltd., in terms of notification dated 21-12-2005 and by another notification dated 14-2-2006 in favour of Sri M Srinivasulu. This information is provided in the affidavit of Sri Mahendra Jain, Secretary to Government, Department of Mines and Geology, sworn on 23-9-2006 and as indicated in Annexure-R1 to this affidavit, names of two applicants figure at Sl Nos.21 and 11 respectively. This development yet again exposes the state government in a very poor light. In respect of some of the applicants, consideration is at the level of the Director of Mines and Geology and the recommendation to the central government in terms of the order passed by the Secretary to Government. The state government later on realizing the blunder that it is committing in the very authority empowered to pass orders not extending personal hearing to the applicants, decided to withdraw the recommendations. For the reasons best known to the central government, the central government nevertheless goes ahead and accords consent in respect of five of the applicants. It is stated that while in respect of one particular parcel of land, the central government is inclined to reserve the land for its undertaking, considerations is still in the process in respect of four other applicants. The state government which had withdrawn its recommendation nevertheless acts on the consent oven by the central government in notifying the grant of mining lease in respect two of the applicants as noted above. The entire action of the state government is most inconsistent and irrational.

70. The action and conduct on the part of the central government, which was impleaded as third respondent to this writ petition, also appears to be rather quixotic and irrational. It is noticed that the central government is according approval to the recommendation of the state government in exercise of power under Section 5 of the Act even after the state government itself had withdrawn the recommendations in terms of its letter dated 12-4-2005. It is not known under what authority of law the central government nevertheless is granting its prior approval even when the state government has withdrawn its very recommendation seeking for approval in favour of any particular applicant. The manner in which the central government has dealt with such matters only indicates that the central government is also acting at the behest of some interested parties rather than as a responsible statutory functionary, which is required to take into consideration the statutory provisions and public interest at large in according such previous approvals under the proviso to sub-section (1) of Section 5 of the Act. It is noticed that though the central government had been directed to file an affidavit explaining such anomalies there is neither any explanation offered nor any response by the central government on this aspect of the matter.

71. It is obvious that the state government does not have any definite policy in the matter of grant of mining leases and does not even know how to go about while processing the applications for grant of mining leases. It has not acted in a fair or uniform manner but has kept on shifting its stand time and again. Piecemeal consideration of the applications obviously smacks of favoritism in favour of applicants whose applications are recommended even while the other applications are yet to be taken up for consideration.

72. Though it is sought to be submitted by the learned Senior Counsel appearing for the petitioner that even in the matter of recommendation made in favour of respondents 4 and 5 in terms of the proceedings of the Chief Minister, no uniform norm has been applied and though it is not necessary for this court to go into merits of the applications for the purpose of this writ petition, as this court is not examining any individual rights of the petitioner, but is only looking into the action on the part of the state government as to whether it is a fair and non-arbitrary action and as to whether it is in consonance with the Act and the Rules, nevertheless, this court cannot help but to observe that the applications of the aspirants for grant of mining leases having not been treated in a fair or non-arbitrary manner and no uniform norm having been applied in respect of all the applications, which is obvious on a perusal of the records also, the entire procedure followed in processing the applications for grant of mining leases is flawed.

73. In terms of the affidavit dated 23-9-2006, sworn to by the Secretary to Government, Commerce and Industries Department, while a total number of 91 applications had been received in response to the notification dated 15-3-2003, the government on obtaining legal opinion had also processed another 21 applications that had been received prior to the notification.

74. In terms of answer to the first question, I am of the view that the prior applications could not have been considered by the government. In terms of two affidavits filed by the Secretary, one on 23-9-2006 and the other on 19-10-2006, only two of the applicants had been granted mining leases and if so, the government is required to consider the applications afresh in terms of this order.

75. In so far as the two applicants who have already been granted mining leases are concerned, as they are not parties to this writ petition, while those lease are not as such quashed in this writ petition, it is for the state government to take steps to rescind from the same, in view of the developments as noticed in this order and if the matter is till at large before the court or before the central government.

76. Even on a perusal of the letter dated 12-4-2005 from the Secretary to the Government of Karnataka, Commerce & Industries Department [copy produced at Annexure-R4 to the affidavit of the secretary dated 19-10-2006], addressed to the Secretary to Government of India, Ministry of Coals and Mines, New Delhi, it is obvious that the state government had rethinking about its own recommendations, as some of the recommendations were not in order. In the said letter, the state government wanted to withdraw its recommendations. The said letter reads as under:

Table 92 to 94

In all the above cases, the power of hearing under Rule 26(1) of the Mineral Concession Rules 1960, was delegated to the then Director of Mines and Geology. Accordingly, the Director heard the applicants and sent his evaluation report to the state government. Based on the evaluation report of the Director of Mines and Geology, the Government took decision to recommend the applications in the above 10 cases.

The opinion of the Law Department was obtained on the procedure adopted by the State government in recommending the proposals. The law department has opined that the delegation of powers to the Director of Mines and Geology for hearing the cases was not correct since it is not appropriate for one person/authority to hear and another person/ authority to recommend the case. Therefore, the Law Department has stated that the recommendations sent to Government of India were contrary to Section 26(2) of the Mines & Minerals (R&D) Act, 1957 and suggested that the State Government could proceed afresh under Section 26(2) of the Mines and Minerals (D&R) Act, 1957, in view of the infirmity pointed out.

Therefore, I request that Government of India, Ministry of Mines may kindly return all the above 10 recommendations to State Government to examine the proposals afresh.

77. This again is the result of the state government having considered the applications not in a comprehensive manner but selectively. The state government is required to consider the applications in respect of each of the parcel of lands notified for grant of mining lease together and not only in terms of the guidelines under Section 11 of the Act but such other considerations like fair play in administering largesse of the State, avoidance of excessive benefit to a particular applicant at the cost of other applicants, public interest at large, need for encouraging selective areas having regard to the development of the state and such other relevant aspects. There should be a clear-cut policy and written guidelines on these aspects which can also be made available to the applicants so that the process of considering the applications becomes transparent.

78. Though it is contended by Sri D.L.N Rao, learned Senior Counsel appearing for respondent 4 and 5 and Sri B. Veerappa. learned Additional Government Advocate appearing on behalf of the State that the petitioner has an alternative remedy under Section 30 of the Act by way of a revision petition to the central government and this writ petition should not be entertained by this court at this stage nor this court should look into the validity of the recommendations, as the mere recommendation for the purpose of obtaining the consent of the central government under Section 5 of the Act does not amount to grant of a mining lease, writ petition is examined as the matter is of considerable public importance and more importantly involved the question of fair and non-arbitrary action on the part of the state government in administering its largesse. The questions are examined not from the context of any individual but from the angle of administrative action of the state if passes the test of judicial review on the touchstone of the provisions of the Act, Rules and Article 14 of the Constitution of India.

79. The statement appended at Annexure-R9 to the additional affidavit dated 19-10-2006 of Sri Mahendra Jain, Secretary to Government, Commerce and Industries Department also indicates that while in respect of many extents of lands notified under the impugned notification and against which applications have been received, though personal hearing of all the applicants has already taken place, recommendation having not been made so far in respect of entire extent of land available for grant of mining leases and as notified and even in respect of a few applications, recommended for approval/permission by the central government, it is not in respect of the entire extent of land notified, in the sense, some portion of the land available under the notification is still left undecided with no recommendation being made and for no justifiable reason. While one can appreciate that if the matter is under litigation before the court, the recommendation might have been deferred, it is not so in all cases where the recommendation has not been made for the entire extent of land. This situation again leads to the possibilities of the state government acting in a manner of pick and choose and selective consideration of the applications. In the matter of administering of state largesse it is very essential such possibilities are scrupulously avoided.

80. This writ petition though arose in the context of grant of mining lease in respect of Block No I, Sl No 1 of the notification dated 15-3-2003, relating to the available lands for grant of mining leases in Bellary district, the observations and findings nevertheless apply to all other parcels of government lands notified under the very notification. Accordingly, the second question is answered in the negative holding that the state government has not acted either in a legal manner or in a bona fide manner in considering various applications that were filed in response to the notification dated 15-3-2003 at Annexure-B.

81. Ever since man stopped living as part of nature, it has been a continuous process of so-called development of man at the cost of nature. Man is supposed to have civilized from being an animal to a human being by learning to live artificially. The concept is, more the artificial way of living more the civilized! And civilization is taken as a sign of development. This development has always been at the cost of [destruction of] nature. Man destroyed nature for habitat by clearing natural growth of vegetation and followed it up by further clearances for agricultural produce to supplement the man's requirement of food. As and when man learnt other uses, more destruction of nature followed.

82. Well, mining is no different. Extraction of mineral from naturally occurring ore, if is underneath a forest bearing land quite naturally, to gather ore and for subjecting it to the process of separating mineral from the ore, growth on the land including trees and plants and alike, if it is in the form of forest, it would be removed.

83. Over a period of time, as more and more forests fell prey to man's other requirements, the realization of adverse impact of destruction of forest has gradually dawned upon man. As the consequence and harmful effects of destruction of forests have now reached disastrous proportions, the imminent need for conservation of forests and also for augmentation of forest areas and to meet these requirements, various legislations have been brought in for such purpose and even courts have become active. Administration has all along been either totally negligent of this need and requirement or is lukewarm to this necessity.

84. The present case though started as a dispute involving a private competition for acquiring leasehold rights to extract iron ore in government lands including such government lands where forests were existing, the examination nevertheless being within the jurisdiction of judicial review of administrative action, and during the course of such examination and hearing, has turned out to be an examination in the larger interest of society and of the conservation of ecological system, which ultimately is also in the interest of human race. This writ petition, which began as a purely adversarial type of litigation, has metamorphosed into a litigation of a wider nature, essentially as one of, private interest versus public interest.

85. The private interest is one of individuals or companies, seeking for grant of mining lease in government forest land and the larger public interest is that of conserving forests for the benefit of the present generation and posterity.

86. It is not that the private interest is totally discarded or shunned, but it has become necessary to examine as to whether private interest can be achieved at all costs even at a huge cost to public interest? Whether public interest has been sufficiently safeguarded, whether statutory provision would themselves take care of, can constitute a larger question, and whether it may or may not come within the purview of courts, whether the existing protective mechanism through statutory provisions have been strictly adhered to or otherwise, is definitely within the domain of judicial review of administrative action and it is within this parameter, the bigger question of private interest versus public interest has become necessary to be examined in this writ petition.

87. It is now a foregone conclusion that destruction of forests by itself is a deleterious activity. Also conservation is taken to be a positive activity leading to benign results.

88. In this background, it has become necessary to examine the action of the state government in notifying a large extent of lands admittedly comprising of large tracts of forest areas, some of which is thick, irreplaceable, virgin forest, forests which are unique in the particular terrain, not to be found elsewhere, and which man might not be able to regenerate for all times or in the near future. When the governmental action for issue of notification inviting applications for grant of mining leases in such forest lands is taken, it is inevitable and the crying need of the hour is that the authorities taking such action should have bestowed their attention from the angle of conserving the forests located in the area proposed for mining lease of a forest land. Whenever the land proposed for grant of mining lease is a forest land, the preliminary examination should be primarily from the angle of conservation of forests, independent of all other considerations, including the need for extraction of a ore which may be available in the forest area and rich in mineral content, the primary examination can only be from the angle of conservation of forest and not from any other angle. If it is found that the forest in the area is of a unique type, irreplaceable on destruction or even such a forest, which cannot be regenerated in the near future, the question of disturbing such forest does not arise, irrespective of other needs. The requirement of conservation prevails over all other needs.

89. If the examination reveals that the area comprises of forest and is a type of forest which can be regenerated with a little effort and within a short span of time, then the question may arise as to whether if such forests should be sacrificed for the purpose extraction of mineral. Here enters the competing interests of conservation of forests and the need for extracting mineral for development etc. If the latter need out weighs the former, then may be extraction can be allowed subject to taking all precautionary steps not only for re-generating the forest but also by ensuring that the ecological system is not destroyed and the surrounding environmental balance is also maintained and with the least harm to the ecological system.

90. If the area does not comprise of any such forest, but mere overgrowth classified as forest and is a common terrain to be found in all other places, then, while the action for grant of such area for mining purpose may be automatic or as a matter of course, even then the question here is to focus the attention on the deleterious effects of mining activity and how best to minimize it.

91. On an examination of the materials placed before the court and as revealed from the records and the affidavits, it becomes obvious that before issue of notification, the subject matter of examination in this writ petition, the government had not embarked on any serious examination, scrutiny or assessment of the need for conservation, nature of the forest located in the area, as to whether it comes under one of the three categories as indicated above.

92. A physical verification and visual impact on a comparison by the visit to the places such as Blocks 1, 4 and 6 in Kumaraswamy range, has revealed that the area comprised of virgin, uncommon, rich thick forest, it is very obvious that the authorities were totally oblivious to the nature of the forest in the area before issue of the notification. While this is only a sample situation and of a particular area, unless such verification had been made in respect of other areas notified for grant of mining lease and in the forest areas, there could not have been an exercise of this nature (i.e. issue of the notification under rule 59 of the rules) for grant of mining lease in such forest areas. The action of the State in issuing such notification is totally mindless, ignoring the statutory provision, sacrificing larger public interest and virtually allowing destruction of nature. A responsible government cannot opt to do such things nor can the courts decline to prevent such things to go on when it is brought to the notice of the courts or even incidentally noticed by the court as in the present situation. It is therefore, necessary for the court to act in the light of the material, for conservation and protection of forests. The larger public interest demands it. Further question is what commensurate action is called for. What nature of orders are to be passed and by issuing what type of directions?

93. As noticed from the records and even from the submission of Sri. Veerappa, learned Additional Government Advocate, it is virtually conceded on behalf of the State Government that the authorities did not bestow attention to the aspect of need for permitting a non-forest activity like mining activity in forest areas, before the issue of the Notification dated 15.3.2003, only for the reason that such areas had been held under mining lease earlier and the earlier lessee having surrendered parts of the leasehold areas, the Government was of the view compliance with requirements of Rule-59 to the extent of according an opportunity to all interested persons to apply for ex-ant of mining lease would be sufficient compliance and there may not be any need for conserving the forest growth or need for examining the competition between conservation of the existing forest vis--vis development activity by carrying out mining operations in the area to extract the ore and to produce mineral out of the ore. Now such an understanding is clearly in the teeth of the law as declared by the Supreme Court in the context of the various statutory enactments such as Forest Act, 1927 [and in the case of Karnataka, Karnataka Forest Act, 1963 also] Forest [Conservation] Act, 1980, Environment [Protection] Act, 1986, Wildlife Protection Act, 1972 and the supporting Rules both under the Central Enactments and the State Acts. The object of enacting all these laws are obviously for conserving the forest growth, for preserving the forest wealth, to prevent its destruction and wherever some destruction is inevitable temporarily, to replace by aforestation programmes and a long term management of the forest growth. These are all provided for even in the National Forest Policy, 1988.

94. It is very obvious that the authorities were totally oblivious to the existence of thick plant growth in the forest areas proposed to be leased under the notification dated 15.3.2003.

95. It is virtually conceded on behalf of the state government that having regard to the fact that the mining leases under the impugned notification, was an area which was held under a prior mining lease and which had been surrendered by the earlier lessee, the state government did not feel or realize any need for examining the existence or otherwise of any forest in these lands and if in existence, the nature of the forest, as to whether such forests were required to be conserved or could be sacrificed. In fact the state government sought to make a distinction between the two notifications of even date i.e. 15-3-2003, one covering the areas held under a lease granted to private persons and the other notification of even date, which is not in issue in this petition, relating to the inviting of applications for grant of mining leases in areas which were earlier owned by the government exclusively, in forest lands and which had been reserved for exploitation by the government itself and had not been hitherto available for grant of mining lease to private persons. The stand is that in respect of such lands which were covered by a notification with reference to the lands which were reserved for government itself, the state government had indicated some preliminary examination of the existence of the forest, nature of the forest etc., and after being satisfied that it may be necessary to clear forest for carrying on the mining activity had issued the notification dated 15-3-2003 and therefore the notification must be held to be valid. So also the leases granted under this notification.

96. An examination of the records does not necessarily reveal that the state government had evinced any commensurate awareness as to either of the existence of any forest in the lands notified for grant of mining leases in the notification of the even date not covered in this writ petition nor is it revealed from the records that an informed decision had been taken after establishing the need for carrying on mining activity in these areas, even at the cost of destruction of forest. in fact the record does not disclose anywhere as to the real awareness of the state government about the need for conserving forest and vegetation growth nor even the need for conserving rare plant species and animal species in existence in the notified areas. In fact the affidavit placed before the court on 11-1-2008, the affidavit of the present commissioner and director of mines and geology, department of mines and geology Sri K.S Prabhakara, while does not necessarily indicate about such awareness on the part of the government through any of the governmental records and as to what such awareness is, on the other hand seeks to place reliance on the extracts of the minutes of a meeting held under the chairmanship of Sri Sis Ram Ola, the then union minister for mines and a report of the National Environmental Engineering Research Institute (NEERI) of Nagpur, on the rapid environmental impact assessment for mining operations in Bellary-Hospet region, held on 14-2-2005 at New Delhi, wherein had participated Smt Latha Krishna Rao, the then secretary, commerce and industry, government of Karnataka, who had sought to place before the chairman and the members present at the meeting, that almost 90% of the recommendations made by the NEERI in its report were already put in practice by the state government by incorporating them as conditions in the leases granted to persons to extract minerals from the government lands including forest lands and also sought to impress on the union minister and other members viz.,

1. Shri. Sis Ram Ola Hon'ble Minister of Mines.

2. Shri. C.D. Arha, Secretary, Ministry of Mines.

3. Shri P. Mehta; Joint Secretary, Ministry of Mines.

4. Shri S. Barthwal, Director, Ministry of Mines.

5. Smt. Lata Krishna Rao, Secretary, Commerce & Industries, Govt. of Karnataka.

6. Dr. T N. Venugopal, Dept. of Mines & Geology, Govt. of Karnataka.

7. Shri C.P. Ambesh, Controller of Mines, IBM

8. Shri S.S. Das, CG, IBM Gopal Singh, OSD to Minister of Mines.

9. Dr. S.K. Aggarwal, Director, MoEF

10. Dr. T. Chandini, Acid. Dir. MoEF.

11. Dr. P.R. Chaudhari, Asst. Director, NEERI, Nagpur.

12. Dr. S.R. Wate, NEERI

13. Shri S. Choudhary, PS to Minister of Mines.

14. Shri Gopal Singh, OSD to Minister of Mines.

15. Shri O.P. Kathuria, Under Secretary.

16. Shri H.L. Shivananda, Resident Director, Karnataka Bhavan, New Delhi.

who were present in the meeting that the region had no rare or medicinal plants specific to the area, which were in danger of destruction. It had been endeavoured to impress the minister by the secretary of the state government that it was essential to allow mining related activities in the area, as the area had low potential for employment and is one of the lowest socio-economic region; that there was imminent need for encouraging developmental activities generating employment opportunities; that the mining related activity being very good potential for such development, it should be allowed in the area.

97. While these facts are sought to be relied upon as a piece of evidence for the state government showing its awareness to the recommendations of NEERI and its report, which is not; by way of a subsequent action plan implemented by the state government pursuant to the final report of NEERI, the statements made by the secretary of the state government does not necessarily reflect the correct position with regard to the existence or otherwise of the rare medicinal plants and other endangered species in the region. In fact not only the NEERI report does mention existence of rich bio-diversity and plant species as recorded by the study in the area in para-6 of the executive summary in the NEERI report of April 2004, which reads as under:

6.0 Biological Environment

Rich bio-diversity of plant species and birds has been recorded in the study area The hilly region e.g. Kumarswamy range is mostly covered by good forest cover. Large number of medicinal plants has been recorded well dispersed throughout the area. However, wildlife is observed to be very poor. Rare and endangered species recorded in the area are Leopard, Sloth Bear, Wolf, Indian Pangolin (in Sandur forest) and four species of birds (Common Peafowl, Great Indian Bustard, Spoonbill, White Stork) and two species of reptiles (Indian Python and Monitor Lizard).

The plant diversity over the entire study area is good, but local diversity is less at most of the places except in Kumarswamy Range. The density of trees is less in and around mining areas, labour colonies / townships, and at easily accessible areas showing the impact of biotic pressure.

Some of the mine owners have carried out plantations for the last 8-10 years on the overburdens and degraded forestland. Bellary forest division has allocated about 100 ha of forest area near Somalpura-Sandur for conservation of medicinal plants.

In order to mitigate the impacts arising due to mining activities on biological environment, large scale afforestation / plantation both by mine owners and forest department needs to be undertaken on degraded forest land, in and around villages, towns, labour colonies, on overburdens and rejuvenated abandoned mine areas, Relevant technical details are given in the report. Apart from this, propagation of medicinal plants needs to be established at different places with suitable resources. The dwindling wildlife can be protected by providing them suitable habitats in non-mineral area and by providing adequate protection and adopting conservation measures.

but also the working plan prepared by the deputy conservator of forest for Bellary division in compliance with Section 38 of the Karnataka Forest Code, which had been produced as Annexure-R5 to the affidavit dated 17-8-2007 sworn to by Sri G.S. Prabhu, Secretary to Government (Forest), Forest, Ecology and Environment Department, specifically indicates that same had been duly approved by the government of India on 1-10-2003, not only catalogues adverse impact on the forest due to mining activity in the area [page 42 to 54], but also mentions the existence of rare medicinal plants of region, region specific flora and fauna and some of them being unique only to the different forest ranges in Sandur taluk of Bellary district.

98. This virtually exposes the statement made by the secretary to government, industries and commerce department to be an incorrect or false statement in the proceedings chaired by the union minister for mines and is also indicative of the eagerness on the part of the state government to go ahead with its proposal to grant mining leases in Bellary district inclusive of forest lands irrespective of the adverse environmental impact the mining activity could have in the region, particularly on the forest growth in the region.

99. It may be appropriate to extract a portion of the order passed by this court on 17-8-2007 during the course of hearing of this petition and following the personal visit of the Sandur forest area proposed for grant of mining lease under the notification dated 15-3-2003:

In terms of the order dated 26-7-2007, I had occasion to visit Kumaraswamy range in Sandur forest range at Sandur on 4-8-2007. Sri Mahendra Jain, Secretary, Department of Industries and Commerce, Sri Prabhu, Secretary to Government, Forest Department and Sri Gangaram Baderiya, Director of Mines and Geology and their colleagues in respective department accompanied me. Sri A.P Murari, Registrar (Judicial) and Sri A.S. Kumbaragerimath, Assistant Court Officer of this court, have also accompanied me. Sri Veerappa, learned AGA was also present at that time,

The officials of the forest and mining departments took us to some blocks notified under the notification of the year 2003 and Blocks 1, 4 and 6 in Kumaraswamy range flea. The officials terrain of the area, adjacent to the mining areas, local conditions, flora and fauna in the area etc. It was noticed that block No 1 comprised of virgin forest and no part of the area notified as block-I is under any mining activity. In Block-4, while it was pointed out that an area measures 60 ha. was under mining operation being leased in favour of one Sri H.G Rangangoud, the rest of the area in Block-2, which is an area of quite a breathtaking scenic beauty with lush green cover and wonderful canopy, slopping down the forest hill, is again a virgin forest. It is this part of the forest area identified as Block-2, which had been visited by Mahatma Gandhi, who it appears, had given the slogan `visit Sandur in September'. A watch-tower was noticed, which gives a clear panoramic view of the entire valley slope.

The officials of forest department also took us around the nursery wherein was noticed laying of plants, planet group-wise and constellations-wise (nakshtra varna and rashi varna]. The deputy conservator of forest, Bellary informed that the area abound with many rare medicinal plants, peculiar to the area and some of which are classified as endangered species.

Block-6 comparing of an area of 426 ha. of forest land in Ramandurga range was also visited. This notified area, again is not subjected to any mining activity, though in the vicinity of the notified area mining activity was being carried on. This notified area also comprise of virgin forest. It was in this area, the officials of the forest department and also the mining department have showed and explained that identification of the blocks and the boundaries of the blocks are possible with the help of global positioning system [GPS] and it was explained that this serves as a benchmark for the purpose of measuring the area and also to identify the notified blocks etc. The positioning of the place in this area was also to an extent ascertainable by GPS, for which purpose, the apparatus was available and which was also demonstrated for reckoning the exact location where a person is positioned in the particular area.

While it does give an impression that the notified area can be identified with reference to the parameters indicated above and possibly with some precision by the use of a sophisticated technical equipment for knowing the exact location, which can be used both for measuring and mapping the area, it remains a fact that most of the notified areas in the notification particularly in the Kumaraswamy range and other forest ranges in Sandur taluk is a virgin forest area and to which provision of Chapter-II of Karnataka Forest Act, 1963 necessarily applies. It is so indicated even in the very notification [that the area is a reserved forest area].

While it is not placed before the court as to what exercise had been undertaken before the issue of the notification in the year 2003 for the purpose of inviting applications for grant of mining leases in such areas, the affidavit of Sri Prabhu, Secretary to Government, Forest Department, positively indicates that the forest department had not been taken into confidence before the notification was issued nor was it consulted about the ecological impact of mining in the area on the forest wealth Perhaps, it was the understanding or impression of the officials of the government that no such exercise was necessary as the area in question had already been held on lease and being a surrendered area, the fulfillment of the requirements under Rule 59 of the Rules itself would suffice.

The contents of the affidavit coupled with the information provided at the time of spot visit, does indicate that the area is a rich reserved forest area, comprising of native flora and fauna and forest wealth peculiar to the area and it is virtually in a pocket in an otherwise a plain terrain of Bellary district, which is in an around this pocket

Allowing mining activity to be carried out in a lush, rich, virgin forest area like this comprising of rare species of plant and animals and many of them endangered ones, is nothing but committing rape on Mother Earth- a crime against humanity and is an act which is required to be prevented by any responsible government.

100. Of late, there is a tendency on the part of the executive wing of the state to shirk its responsibilities and to become inactive for the reason that a matter is pending before the courts. The phrase `sub Judice' is used for justifying inaction. It is also the present trend that a large number of matters complaining of inaction or violations on the part of the administration are brought before the superior courts for resolution and solution by all interested persons whether directly affected or not in the name of public interest litigation. The courts - the judicial wing of the state - having the responsibility to correct the wrongs of the executive and legislative wings of the state in the exercise of the power of judicial review of administrative and legislative actions, do examine many such genuine matters, having regard to the nature of a judicial proceeding which, as observed in this order, is essentially under an adversarial system, a decision being taken only after an opportunity and hearing accorded to the adversary, there is bound to be a time-lag between the matter reaching courts and a decision being taken. Genuine, not so genuine, bona fide, frivolous, trivial - all types of matters cropping up before courts and with the increase in number with the limited number of courts and judges not necessarily commensurate to the workload, matters remain pending before courts and many a times for long duration. The real damage in this situation is whenever any matter reaches the courts, the executive wing of the state, which is saddled with the day-to-day responsibility of the administration and governance ceases to discharge that responsibility of day-to-day administration in respect of the matter before the courts and looks up to the courts for a decision in the matter. Even a normal response to a situation and a problem which otherwise should have been responded and redressed by the administration is put on hold; many times in the name of the matter being sub judice. In the absence of a timely response, the problem may get complicated or aggravated. Now, when a matter reaches the courts, wherein some administrative action or legislative action is challenged and even does become sub judice, it is not as though, the judiciary takes over the functions of the executive wing of the state even in respect of the subject matter before the courts. That responsibility remains with the respective wing of the state and does not get transferred to any other wing of the state. The executive wing of the state, which otherwise could have corrected itself, which it is bound to do when once it realizes that a mistake has taken place or a wrong has been done, does not respond any more, does not correct itself, becomes inactive and looks up to the courts for a decision and direction! because the matter is sub judice. The concept of sub judice is a concept or a legal principle, which is a product of the adversarial English legal system. Any adversary to litigation is expected not to prevent or thwart the course of justice and the courts reaching a just decision in respect of a cause before the courts, which is a sound principle of law. But, in matters of judicial review of administrative action or legislative action, the situation is not exactly as in the case of an adversarial litigation as pointed in this order. when a matter is brought before the superior courts [High Courts or the Supreme Court of India] for judicial review and even when it become sub judice, it does not come in the way of the executive wing of the state from correcting itself. The executive part of the state is only expected not to act in a preemptive manner to defeat the corrective role the judiciary has to play and perpetuate the wrong or inaction. The tendency for inaction in respect of a matter before the court is very much present in this very case.

101. It is more than one year since a personal visit to the Kumaraswamy reserved forest range, a notified area for grant of mining lease as per the government notification, took place. A large posse of officials including the forest secretary and secretary to government, commerce and Industries department, high ranking officials, with a good number of their colleagues were present during the visit. A large number of media persons were also present. It was to the clear understanding of every one present there that the notified area comprises of thick, virgin forest and that many rare and endangered species of plants and animals existed in the forest. The impact of mining activity i.e. the adverse effect, damage and destruction caused to the forest that was taking place in the adjacent areas was very much visible to the knowledge of all persons including myself. The high ranking government officials also realized the kind of destruction of forest that was taking place due to the mining activity. It was the response of the officials of the forest department that the forest department which has a duty and responsibility to protect and conserve forests, had been making concerted efforts to protect forests and had strongly objected to the mining activity in the forest areas, which could totally destroy the forest and in spite of their efforts, they were not fruitful, as a decision was taken at the highest level of the government to notify the areas for grant of mining leases and the decision was as a result of persuasion made by the mining department for grant of leases in respect of such areas.

102. Now it is virtually conceded and if not conceded, the records speak that the state government had not bestowed due or proper attention to the existence of such lush, rare forest in the notified areas nor was any awareness shown to preserve or conserve forests from the context of various legislative provisions referred to in this order and meant for protecting and conserving forests. Now that is certainly a failure of duty on the part of the executive wing of the state. The visit to the places accompanied by the officials and other people, while has resulted in creating an awareness about the existence and need for conservation and prevention of such forests, it was also realized by the state government through its officials that the action taken for notifying the area was definitely not after taking all relevant aspects and considerations, there was scope for correcting this wrong. There was ample opportunity for the government to correct itself, as the realization, if not earlier, has definitely taken place on the date of personal visit. Even after lapse of one year, the state government has not taken any corrective steps to undo the wrong or mistake on its own and looks up to the judiciary to take a decision in the matter, may be one of the reasons is that the matter is sub judice. It is for this reason the concept of sub judice and the misnomer of this concept in the matter of discharge of the respective responsibilities by different wings of the state is dealt with in this order. But that apart, when the executive wing of the state which has realized the mistake or wrong and has not taken a corrective step to undo the mistake or to set right the mistake and is perpetuating the wrong by its inaction and with damage and destruction being not prevented by the executive wing of the state on its own, when such matters are brought to the notice of the court, the judicial wing of the state, it is the bounden duty of the courts to act and to prevent the wrong and issue suitable directions to the executive wing of the state to undo the wrong and for taking corrective measures. It is the bounden duty of every judge to act and function so in the discharge of judicial functions, for which purpose, every judge while entering the office in the superior courts, takes an oath under the Constitution of India. Now for the discharge of this duty and responsibility, objections are raised on the part of the respondents by their learned counsel pleading that this court has no jurisdiction to deal with a matter of this nature. In so far as the jurisdiction is concerned, it is one conferred under the Constitution on the superior courts. The jurisdiction of judicial review on the superior courts is exercised by the judges of the superior courts and it is their duty to function so. The jurisdiction for judicial review is not conferred by any other person or authority. In so far as the order to be passed in a matter before the court or judge is concerned, it is within the domain of the judge who has heard the matter and it is well settled principle that in the exercise of this power and jurisdiction, as to the manner in which the judge is expected to act.

103. The present writ petition is a matter before this court and which is being heard for a considerable length of time. An order that that is required to be passed in this writ petition and passing of such order is the Constitutional duty enjoyed on every judge who has so looked into the matter and heard the matter and such duty and responsibility cannot be prevented or shirked on the misunderstanding of want of jurisdiction. While the system provides for corrective measure at different levels, and that can definitely be availed of and the correctness of an order tested, that cannot prevent any judge from discharging the Constitutional duty. It is for this reason, I am inclined to pass orders in this matter, pronouncing upon the legality or otherwise of the actions on the part of the administrative wing of the state and for issue of directions for corrective measures when it is so necessitated in the background of this case.

104. Sri D.L.N Rao, learned senior counsel appearing for respondents 4, 5 and 7, has submitted that the above writ petition, which is necessarily a writ petition limited in the context of the petitioner questioning the legality of the action taken by the state government in examining the process of applications of respondents 4 and 5 and at a stage when certain recommendations had been made in their favour by the state government seeking approval of the central government, which alone was the scope of the writ petition should be confined to the examination of this question alone and cannot travel beyond. Submission is that the examination if goes beyond and partakes the character of a public interest litigation, it is not the domain of this court to examine the cause in the nature of public interest litigation and seeks to draw sustenance to this submission from the observation made by the division bench of this court, while passing orders on the IA-IV and V of 2007 in WA No 1716 of 2007, an appeal which had been filed against an earlier interim order that had been passed by this court in this writ petition on 17-8-2007. Reliance is placed on the following observation:. It is stated by the learned counsel for the appellant that the application is kept pending without passing any order. The learned counsel for the appellant is right in pointing out that in Writ Petition No. 21608 of 2005 the Single Bench can only adjudicate the issues and disputes raised in the writ petition and that the Single Bench cannot grant any relief either interim or final, beyond the scope of the writ petition. Learned counsel is also right in submitting that the learned Single Judge could not have converted and treated the writ petition as public interest litigation and passed orders affecting persons who are not parties to the writ petition. Even if the learned Single Judge felt that any important issue of public interest was involved in the writ petition and that it deserved to be treated as a public interest litigation, the proper course is to direct the Registry to place the matter before the Chief Justice for posting the case before the Bench having jurisdiction to deal with public interest litigation.

to submit that any relief or orders to be passed in this writ petition should be necessarily confined to the legality or otherwise of the action as questioned in the writ petition.

105. It is true that normally court examines the cause before it and passes orders, based on the material placed by the parties approaching court seeking for relief in the petition.

106. The legal system that we have inherited being from the British and the English legal system which is essentially adversarial legal system, functioning of the courts in India has remained to be as a legal system in tune with the English legal system. Our country became Republic in the year 1950 and being governed by a written Constitution, which controls and regulates the functioning of all organs of the state, has not made much difference to the functioning of the legal system in the country! Except for examining the causes within the jurisdiction of judicial review of administrative action and also of legislative action. in the light of the provisions of Articles 32 and 226 of the Constitution of India, functioning of the superior courts in the country has remained the same and in conformity with the English legal system. In fact, the exercise of the constitutional power for judicial review of administrative action and legislative action has been by and large on the lines of an adversarial legal system and litigation invoking the power for judicial review has also remained adversarial in nature.

107. The format used may be English legal format, but the power and jurisdiction exercised is a constitutional power and the power and jurisdiction vested in the superior courts under the Constitution. While it is no doubt true that to understand the scope and ambit of such power for issue of prerogative writs, we may have to necessarily look upto the English legal system, as the practice of issue of prerogative writs by the Crown courts is a development peculiar to English legal system, the manner of exercise of this constitutional power need not necessarily be circumcised or regulated by the procedural restrictions as envisaged in the English legal system, which attempts to resolve a private dispute between the parties and only at the instance of an aggrieved party in the dispute who approaches court for resolution of the dispute. It may be useful to refer to the observations of the Supreme Court as contained in paras 69, 70 and 71 of SAMATHA'S case which is as under.

`69. As stated hereinbefore, the Constitution envisions establishing an egalitarian social order rendering to every citizen, social, economic and political justice in a social and economic democracy of the Bharat Republic. Article 261 (1) of the Constitution provides that full faith and credit shall be given, throughout the territory of India, to public acts, record and judicial decisions of the Union and of every State. In Secretary, Jaipur Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35, a Bench of this Court had held thus:

`The Governor runs the Executive Government of a State with the aid and advice of the Chief Minister and the Council of Ministers which exercise the powers and performs its duties by the individual Ministers as public officers with the assistance of the bureaucracy working in various Departments and Corporate sectors etc. Though they are expressed in the name of the Governor, each Minister is personally and collectively responsible for the actions, acts and policies. They are accountable and answerable to the people. Their powers and duties are regulated by the law and the rules. The legal and moral responsibility or liability for the acts done or omissions, duties performed and policy laid down rest solely on the Minister of the Department. Therefore, they are indictable for their conduct or omission, or misconduct or misappropriation. The Council of Ministers are jointly and severally responsible to the Legislature. He/they is/are also publicly accountable for the acts or conducts in the performance of duties.

The Minister holds public office though he gets constitutional status and performs functions under Constitution, law or executive policy. The acts done and duties performed are public acts or duties as holder of the public office. Therefore, he owes certain accountability for the acts done or duties performed. In a democratic society governed by rule of law, power is conferred on the holder of the public office or the concerned authority by the Constitution by virtue of appointment. The holder of the office, therefore, gets opportunity to abuse or misuse of the office. The politician who holds public office must perform public duties with the sense of purpose, and a sense of direction, under rules or sense of priorities. The purpose must be genuine in a free democratic society Governed by the rule of law to farther socio-economic democracy. The executive Government should frame its policies to maintain the social order, stability, progress and morality. All actions of the Government are performed through/ by individual persons in collective or joint or individual capacity. Therefore, they should morally be responsible for their actions.

When a Government in office misuses its powers, figuratively, we refer to the individual Minister/Council of Ministers who are constituents of the Government. The Government acts through its bureaucrats, who shapes its social, economic and administrative policies to further the social stability and progress socially, economically and politically. Actions of the Government, should be accounted for social morality. Therefore, the actions of the individuals would reflect on the actions of the Government. The actions are intended to further the goals set down in the Constitution, the laws or administrative policy. The action would, therefore, bear necessary integral connection between the `purpose' and the end object of public welfare and not personal gain. The action cannot be divorced from that of the individual actor. The end is something aimed at and only individuals can have and shape the aims to further the social, economic and political goals. The ministerial responsibility thereat comes into consideration. The Minister is responsible not only for his actions but also for the job of the bureaucrats who work or have worked under him. He owes the responsibility to the electors for all his actions taken in the name of the Governor in relation to the Department of which he is the head.

70. In Shamsher Singh v. State of Punjab (1974) 2 SCC 831: (AIR 1974 SC 2192), a Bench of seven Judges of this Court had held that under the Cabinet System of Government as embodied in our Constitution, the Governor is the format head of the State. He exercises at his powers and functions conferred on him by or under the Constitution, on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his function in his discretion. The satisfaction of the Governor for the exercise of any power or function, required by the Constitution, is not the personal satisfaction of the Governor but is the satisfaction in the constitutional sense under the Cabinet System of Government. The executive is to act subject to the control of the legislature. The executive power of the State is vested in the Governor as head of the Executive. The real executive power is vested in the Ministers of the Cabinet, The Chief Minister and the Council of Ministers with the Chief Minister as its head aid and advise the Governor in the exercise of his executive functions. The same principle was reiterated by a Bench of three Judges in R.K. Jain v. Union of India (1993) 4 SCC 120: (1993 AIR SCW 1899). Therein, it was held that in a democracy governed by rule of law, State is treated on par with a person by Article 19(6) in commercial/ industrial activities.

71. It would thus be clear that in a democratic polity governed by the rule of law, the administration is run through constitutional mechanism i.e., Cabinet form of Govt. by a Council of Ministers headed by the Chief Minister. They aid and advise the Governor, the executive head of the State. The bureaucracy - an arm of the political executive - assists as an integral part of administrative mechanism. Their actions or the acts, individually or collectively, are directed to elongate and fulfill the socio-economic goals set down in the Constitution to establish the egalitarian social order in which socio-economic justice is secured to the poor and weaker sections of the society including the Scheduled Castes and Scheduled Tribes, in particular, as enjoined in Article 46 of the Constitution, to promote their socio-economic interest and protect them from social injustice and all forms of exploitation. The State is, therefore, a `person' within the constitutional mechanism persons ficta is enjoined to elongate the objects of the Constitution.

108. But, in so far as the grievance or a dispute vis--vis any state action, whether administrative or legislative, though in a large or broader sense can be construed as an adversarial litigation as between the complaining person/citizen and the state, the comparison stops at this. What is examined by courts is not necessarily a competing right or entitlement of the individual vis--vis the state, but the action of the state i.e. administrative or legislative action of the state, which is complained of whether is in conformity either with a statutory provision or constitutional provision. The examination is essentially about the action of the state and its impact on the complaining person who petitions the court. An examination of this nature is not one confined to the examination of any individual right or grievance or injury the petitioner is complaining of, but the manner of functioning of the state under the action complained of. The government functions for the common good and for the general public. It is essential that the functioning of the government should sub-serve common good and public interest at large. Whenever, a government malfunctions, in the sense administrative action or legislative action, is not according to law or constitution there exists a public injury, though in a given case the affectation may be to an individual or may be restricted to a class of individuals or group of individuals.

109. While examining a cause of this nature in the exercise of the power of judicial review of administrative action, it may be necessary for the state to place before the court records relating to the functioning of the state and also file before the court the version or stand of the state government in the context of the specific petition through affidavits and supporting materials. While so examining the records, if the court comes across or stumbles on an action which is violative of any statutory provision or constitutional mandate and is a related development, it cannot be said that court has to shut its eyes to such illegality or constitutional violation and bypass the same turning a blind eye to that illegality or constitutional failing on the part of the executive/government in the name of public interest litigation.

110. Can a situation of this nature be construed as an examination akin to an examination undertaken in a public interest litigation?

111. Examination of every writ petition even of a private cause necessarily means an examination of the functioning of the government and has a flavour of public interest. For the purpose of understanding the phrase `public interest litigation' in the context of the observations made by the Division Bench, I am of the view that it can be understood as a litigation where the cause sought to be espoused by a person who in fact has not been affected by the action complained of.

112. It is of significance to note here that the jurisdiction of the court remains the same, whether the litigation is construed as public interest litigation or otherwise. The scope of examination of any writ petition remains the same and the parameters or touchstone for such examination also remains the provisions of constitution and / or the statutory provisions attracting the situation. There is no question of courts embarking on the examination of the issues which are not issues which arise in the context. Neither exercise of executive power by the state either under the constitution or under any legislation, nor the role assigned to courts under the scheme of constitution i.e. judicial function gets converted or expanded just because the phrase 'public interest litigation' is used. The role of courts remains one of resolving disputes inter se between the parties coming to the court and also of examining the action of the government, executive or legislative on the touchstone of the constitutional provisions and relevant statuary provisions.

113. I am of the clear view that the present examination is well within the jurisdiction of courts for examining the legality of the notification dated 15-3-2003, in the context of which the related developments are complained of before the court notwithstanding either the writ petitioner or the respondents having not questioned the legality of such notification, and particularly, when this court notices the consequence of such action is one of acute adverse impact on the environment and ecology and in turn on the conservation of the system itself and on the society. In fact when the impact may go beyond the present generation and could affect posterity, it is not a matter which the court can ignore in the name of absence of challenge to the legality of such action taken by the state government. I am of the clear view that all related actions as revealed through the records placed before the court during the course of hearing of the present writ petition and in related matters, are all within the scope of exercise of the power of judicial review of administrative action and this court if the situation so warrants is bound to pronounce upon the legality or otherwise of such actions, which has come to the light of the court as revealed from the relevant records.

114. This apart, in the present case, while petitioners/respondents are persons who were applicants for mining leases and the only right if they have any, is one of due consideration of their applications and even as contended by some of the respondents [subsequently added either on their own or by impleading] has fructified into a mining lease, even then, such parties having been given an opportunity of hearing and even within the context of the order to be passed, which assuming that it can affect the interest of such lessees, the question will only be as to the need or necessity to pass such order, having regard to the settled principle of private interest versus public interest and such principle having been well settled that private interest will have to necessarily yield to sub-serve the larger public interest, the question if arises regarding the legality of the leases which it is contended is a development during the course of hearing of this writ petition, scrutiny cannot be avoided and the consequences have to follow.

115. A comprehensive examination of the various legislative enactments relating to forest clearly points to the legislative intent of protecting and conserving forests. The concept of conservation and protection had began more than 100 years ago, but notwithstanding there is a systematic erosion of the forest areas, forest areas are sacrificed for various developmental activities and the overall percentage of forest areas vis--vis the total land area has come down and has now reached alarming levels. It is in the wake of such deleterious effect and systematic destruction, conservation measures were sought to be strengthened and more stringent provisions were put in place to prevent non-forest activities in forest areas by Forest [Conservation] Act, 1980. The forest wealth of the nation is by and large owned by the state. The state governments not only own forests but are also the custodians and trustees for the society and future generations in protecting and conserving forest wealth. Protecting and conserving forest wealth is a very onerous responsibility on the state. If one should understand the legislative intent in a proper and meaningful manner in enacting various forest laws referred to above, it becomes very obvious that it is the responsibility of the executive wing of the state to show awareness and to make a concerted effort to conserve and protect forests. In so far as the action taken particularly by the state which can have any adverse or deleterious effect on protecting and conserving forests is concerned, a duty is cast on the state government before taking such action to examine the question independently and from the angle of protecting and conserving forests. There is an imminent need for the state government to show awareness in respect of any activity which is a non-forest activity in a forest area, exclusively from the angle of conservation and protection of forests. With the problem of de-forestation, the consequential adverse impact on the environment and ecology having reached alarming proportions, it has assumed global importance and it is now to the acute understanding of all governments in the world that if the earth is to be saved, destruction of forest wealth should be stopped immediately. Global warming and the consequential potential disasters are not matters which can be ignored by any responsible government any more. When such is the magnitude of the problem and disasters due to destruction of forest, the state government - the owner of Forest, the custodian of forest wealth, the trustee of forest wealth and the ecological system - has to be ever conscious and aware of the need for conservation and protection of forests and all decisions taken even in the exercise of sovereign function of the state, which concerns the forest wealth, have to be inevitably taken in the background of such awareness about the need for conservation and protection of forests. Any decision, any action taken by the state government without bestowing commensurate attention and not showing sufficient awareness of the need for conservation and protection of forests that can affect forest wealth or can even lead to the destruction of forest wealth, is a decision which is anathema to the working of conservation and protection of forests.

116. In the present case, particularly insofar as decision for notifying the government land for grant of mining lease and when such government lands comprised forest wealth in a major portion of the notified areas in terms of the notification dated 15-3-2003 is concerned, there is a clear admission on the part of the state government that the state government did not exhibit any such awareness before issue of such notification for the reason that such lands were once being held under mining leases and therefore the state government thought that getting legal advice and legal opinion to fulfill the requirements of Rule 59 of the Rules in itself is sufficient before the issue of a notification.

117. In the counter filed on behalf of the respondents-state and its officers as also as urged by the learned senior counsel appearing for the private responders, whoa are competitors for securing mining lease, what is vehemently urged is that the need for conservation and protection of forests is effectively met, as the state government goes through the process under Section 2 of Forest [Conservation] Act, 1980 and the central government after examining all aspects will have to approve the grant of mining leases only after expert body had examined all aspects of conservation and protection of forests not only from the forest conservation angle but also from the environmental angle.

118. While such compliance is an inevitable requirement of law in the context of Forest [Conservation] Act, 1980, it is not a good answer for absolving the state government - owner of the forest wealth - from the responsibility to protect and conserve forest wealth and in exhibiting the degree of awareness and consciousness required to be shown before taking decisions which can affect conservation and protection of forests. Grant of mining lease in an area comprised of forest, without any disputes undoubtedly affects forest growth and even leads to destruction of forest growth.

119. A phenomenon of this nature is always required to be examined on a larger canvas and exclusively from the forest conservation and protection. A piecemeal examination of the conservation and protection aspect by an expert body said to be set up by the central government under the Forest [Conservation] Act, 1980 for the purpose of approval or disapproval of proposals for grant of mining lease in respect of a limited area is not an examination which can be a substitute for the discharge of the responsibility of the state governments to conserve and protect forest and forest wealth. In conservation matters, particularly of the forest, the examination cannot be in a piecemeal truncated manner, as that will never serve any purpose, the overall perspective for the conservation and protection of forests, particularly when the examination under the Forest [Conservation] Act, 1980 will be a limited examination and in the context of the proposal for grant of mining lease of land which includes forest areas, I am of the clear opinion that a permission for grant of mining lease by the central government under Section 2 of the Forest [Conservation] Act, 1980 is definitely neither an answer nor substitute for the requirement of the state government discharging its responsibilities to protect and conserve forest wealth and in taking an informed conscious decision in all matters which can affect the forest growth and the forest wealth. it is for this reason, the notification dated 15-3-2003 inviting applications for grant of mining lease requires to be quashed with directions to state government in the first instance to show awareness as to the conservation and protection of forests, which are comprised in the areas proposed to be notified for grant of mining lease, examining the question from the exclusive angle of conservation and protection of forests and with expert advice and scientific data and then alone embark upon the proposal to grant mining leases in such areas provided that the imminent and inevitable need for carrying on mining operation in such areas is established and if the forest in the area which can be sacrificed in the name of growth and development are type of forest which can be re-grown or replaced over a period of time.

120. It is also essential to notice that if the state government has been flouting safety norms or necessary compliances with the statutory provisions to ensure the protection and conservation of forests and while granting mining leases has affected or has even violated the need for conserving and protecting forests, the state government can definitely be directed to ensure that protective measure are implemented and the earlier action, which had been taken by ignoring the need for conservation and protection can also be directed to be reviewed and proper action taken for canceling the mining leases in areas where exists forest to ensure the existing forest is conserved and protected, to systematically examine the need or necessity to sacrifice or give up any forest in the name of development, particularly, through mining activity by examining the nature of forest in the given area, the need for conserving it, the adverse impact of mining activities carried on in the area, the scope for regenerating like forest in the area in the near future, as to whether forest comprises of rare or unique biosphere which is required to be conserved for the present and posterity, as to whether the need for undertaking mining activity in the given area is so imminent and unavoidable; that a forest existing in the area has to be cut down for such related activities and only there upon grant or resume mining leases in the area and put a hold on the mining activity in the entire state in all areas, comprising of forest lands and to implement the same by issuing of necessary notices to the persons likely to be affected, give them an opportunity of hearing and take remedial action in accordance with law after following due procedures.

121. To act for conservation/protection or to permit destruction is the daunting question that haunts the courts in these cases.

122. Whether to ensure the conservation and protection or to permit the mindless, negligent destruction of forests is the choice to be made by the courts, as responsibility cast on the executive part of the State has been abdicated by the State Government and there is need for the courts to step in for the purpose of conservation and protection of available forest, is the question that has surfaced and has loomed large during the course of hearing of the above petitions and as a sequel to perusal of the records of the Government not only in the context of processing of applications for grant of mining lease in which context, the writ petition was originally brought before the court but has assumed wider dimensions and greater significance as the records before the court revealed that the functioning of the Government, particularly, in the matter of exercise of its statutory powers not only under the provisions of the Mines & Minerals [Development & Regulations] Act, 1957, but more importantly in the context of the Karnataka Forest Act, 1963 and Forest [Conservation] Act, 1980, Environmental Protection Act, 1986 and other allied acts, the State Government appears to have failed to discharge its statutory responsibility under these enactments.

123. What started initially as an adversarial litigation between two competing applicants for grant of mining lease pursuant to the Government Notification dated 15.3.2003, has during the course of hearing and examination of the Government records has necessitated a deeper scrutiny to ascertain the manner in which the State Government is discharging its social and statutory obligation to the society for the conservation and protection of the forest wealth.

124. When such a question arose before the Supreme Court in the case of `Samatha Vs. State Of Andhra Pradesh & Others' reported in AIR 1997 SC 3297, particularly, the State Government having granted mining leases in various areas and in some parts of such forest areas, the tribals also living there and also some public spirited non-Governmental organizations having questioned the validity of such leases, as it could affect the lifestyle, livelihood and the very life of the tribals and while examining such questions, the Supreme Court has observed as under and I quote.

'120. In the counter affidavit filed on behalf of the Government, it is conceded that major part of the lands to which mining leases were granted are the lands to which mining leases were granted are situated in reserved forest, It has already been held that transfer of lands situated within scheduled area to non-tribals is void. It is stated that a part of the land covered by some mining leases is outside the reserved forest. The question, therefore, arises: whether these areas are forest? A controversy has been raised by the respondents that unless the lands are declared either as a reserved forest or forest under the Andhra Pradesh Forest Act, 1967, the prohibition to grant mining lease or renewal thereof by the State Government. The need for prior approval of the Central Government is not, therefore, necessary. Prior to the Andhra Pradesh Forest Act, 1967, the Madras Forest Act, 1882 was in force. For declaration of reserved forest for the purpose of the Central Forest Act or a State Act, the set scheme has been devised, namely, publication in the State Gazette constituting any land as a reserved forest specifying its situation, its limits and a declaration constituting such land as reserved forest. A Forest Settlement Officer gets appointed to consider the objections, if any, from the persons claiming any right, title and interest in any land covered by the notification. Pending consideration thereof provisions exist in the respective Acts prohibiting clearance of the forest or deforestation of the forest or depletion of forest wealth and resultant consequences. After consideration of objections, if any, and rejection of the objections and claims, subject to preserving the easementary right of way, water course or use of water or right to pastures or right to forest produce, the Forest Settlement Officer would determine the right of parties and would direct the concerned department to pay compensation determined on the basis of the principles laid in the Act with a right of appeal thereon. Thereafter, a declaration would duly be published in the gazette with fixed boundaries that the `aforesaid area are a reserve forest'. Similar is the provision and procedure in the Wild Life Sanctuary under Wild Life [Protection] Act, 1972. Therein too, provisions have been made declaring them as sanctuary for preservation and protection of wild life etc.,. However, the right to residence and right to collect forest produce, forest goods or agriculture etc., to the tribals is regulated under the appropriate provisions.

121. The words forest' or forest land' have not been defined in the A.P. Act or the Central Forest Act In Collins English Dictionary [1979 Edn.] the word forest' has been defined as page 568 as `a large wooded area having a thick growth of trees and plants, the trees of such an area, something resembling a large wooded area especially in density'. Shorter Oxford English Dictionary defines forest' as `an extensive tract of land covered with trees and undergrowth, sometimes intermingled with pasture'. In Webster's comprehensive Dictionary [International Edn.] at page 495, forest' has been defined as `a large tract of land covered with a natural growth of trees and underbrush, in English Law wild land generally belonging to the crown and kept for the protection of game, of pertaining to, or inhabiting woods or forest To overspread or plant with trees; make a forest of. The forest cover' means The sum total of vegetation in a forest; more especially, herbs, shrubs and the litter of leaves, branches.' `Forest reserve' for the different manners `a tract of forest land set aside by Government order for protection and cultivation.' According to Stroud's Judicial Dictionary [fifth Vol 2 at page 1014 forest' means `a place privileged by royal -authority or by prescription for the peaceable abiding and nourishment of the beasts or birds of the forest, for resort of the king; a subject may hold a forest by man's own ground, not only the privilege but the land itself passes; within the bounds and within the regard'. Black's law Dictionary (6th Edn] defines forest' at page 49 as `A tract of land covered with trees and one usually of considerable extent'. Chamber's Twentieth Century Dictionary defines the expression forest at page 415 as `a large uncultivated tract of land covered with trees and Underwood: woody ground and rude pasture.

122. It would thus be seen that forest' bears extended meaning of a tract of land covered with trees, shrubs, vegetation and undergrowth interminaled with trees with pastures, be it of natural growth or man-made forestation. The FC Act, as amended by 1988 Act was enacted to check deforestation and conservation of forest. Sub-section (2) with a non-abstante clause on deforestation of forest or use of forest land for non forest purposes; regulates the forest and provides that notwithstanding any other law for the time being in force in the State, no State Government or other authority shall make, except with prior approval of the Central Government [i] any order directing that any reserved forest or any portion thereof shall cease to be a reserved forest [ii] that any forest land or any portion thereof may be used for any 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 any authority or corporation, agency or any other organization, not owned, managed or controlled by the Government [iv] that any forest land or any portion thereof may be cleared or trees which have grown natural in the land or portion for the purpose of using it for reforestation. Clauses [iii] and [iv] were added by Amendment Act 69 of 1988 w.e.f December 19, 1988. The explanation thereto of non forest purpose was defined to mean the breaking up or clearing of any forest land or portion thereof for the cultivation of but does not include any work relating to ancillary to conservation development and management of forest and wild life; namely, establishment of check posts, fire lines or other like purposes, Section 2, therefore, prohibits de-reservation of the forest or use of any forest land for and non-forest purpose or assignment by way of lease or otherwise of any portion of land to any private person other than Government controlled or owned, organized or managed by the State Government agency; it prohibits clearance of trees or natural growth in the forest land or any portion thereof to use it for reforestation, except for preservation. Breaking up or clearance of forest land or a portion thereof is amplified to be of non-forest purpose. The object of F.C. Act is to prevent any further deforestation which causes-ecological imbalance and leads to environmental degradation, it is therefore, necessary for the State Government to obtain prior permission of the Central Government for (1) de-reservation of forest and (2) the use of forest land for non-forest purpose. The prior approval of the Central Government, therefore, is a condition precedent for such permission. The State Governments are enjoined by FC Act; with power coupled with duty, to obtain prior approval of the Central Government. He leases/ renewal of leases otherwise are good.

123. The Environment (Protection) Act, 1986 (for short, the EP Act') was enacted to protect and improve environment and prevention of hazards to human beings, other living creatures; lands and property. Section 3 of EP 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. It would, therefore, be clear that the meaning of the expression forest land' in the respective Acts requires extended meaning given so as to preserve forest land from deforestation to maintain ecology and to prevent economical degradation and hazardous effects on right to life. In Virendar Gaur v/s State of Haryana (1995)2 SCC 577 :(1995 AIR SCW 306) this court in paragraph 7 at pages 580-581 : (of SCC) : (at p.309 of AIR SCW;) has held that environmental ecological, air, water pollution, etc should be regarded as amounting to violation of right to life assured by Article 21. Hygenic and environment are an integral facet of right to healthy life and it would be impassible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promotion of environmental protection implies maintenance of eco-friendly environment as a whole comprising of man-made and the natural environment. It is therefore, the duty of every citizen and industry to conserve and if its becomes inevitable disturb its existence, it is concomitant duty to reforest and restore forestation. duty of the State to co-ordinate with all concerned and should ensure adequate measures to promote, protect and improve both man-made, natural environment flora and founa as well as bio-diversity.

124. In Rural Litigation and Entitlement Kendra v/s State of U.P., 1969 Supp (1) SCC 504 : (AIR 1989 SC 594) in paragraph 14, this court had observed that consciousness regarding environmental upkeep and cognizance of ecological importance had in recent times entered into governmental activities. The EP Act protects to upkeep forest land or reserved forest, prevents deforestation, encourages forestation and takes steps as are necessary to preserve ecology. In paragraph 23, it was held that mining activity was held uncongenial to ecology and environment. Trees are friends of mankind and forests are inevitable necessity for human existence, healthy living and the civilization to thrive and flourish The need of protection and preservation of forests is fundamental duty of every citizen and all persons in comprehensive sense, i.e., juristic as well. The problem of forest preservation and protection was no more to be separated from the life style of tribals. The approach required is shift from the dependence on law and executive implementation to dependence on the conscious and voluntary participation of all persons. Maintenance of ecology is the primary duty of the Stale to prevent any further degradation of the ecology and environment and equally is the duty of every citizen. All persons conjointly should allow regeneration of forest as an essential step for healthy life. This Court in Chhetriya Pradushan Mukti Sangarsh Samiti v/s State of U.P., (1990) 4 SCC 449b: (AIR 1990 SC 2060) and Subhash Kumar v/s State of Bihar, (1991) 1 SCC 598: (1991 AIR SCW 121), had held that the protection to environment is the duty of the State. In Sachidanand Pandey v/s State of West Bengal, (1987) 2 SCC 295 : (AIR 1987 SC 1109), it was held that it is the fundamental duty of every citizen under Article 51A(g) and Article 48A of the Constitution to protect the forest and environment/ The same view was reiterated in State of Bihar v/s Murad Ali Khan (1988) 4 SCC 655: (AIR 1989 SC 1) And M.C. Mehra v/s Union of India, (1992) 1 SCC 358: (1991 AIR SCW 2989). On the positive obligation to protect environment, this Court had emphasized it in M.C. Mehra's case (supra) and Indian Council for Enviro-Legal Action v/s Union of India, (1995 3 SCC 77: (1995 AIR SCW 1797). Industries which created environmental inimical to the human existence, were directed to be disclosed in Rural Litigation and Entitlement Kendra v/s State of U.P., 1989 Supp (1) SCC 504 : (AIR 1989 SC 594); Tarun Bharat Sangh, Alwar v/s Union of India (1992) 2 SCC 448: (1992 AIR SCW 102); Vellore Citizen's Welfare Forum v/s Union of India (1996) 5 SCC 647: (1996 AIR SCW 3399) and Indian Council for Enviro-Legal Action case (supra). Is particular, in VELLORE citizens case, this court had pointed out that the sustainable development is a balancing concept between ecological development and industrialization. Therefore, with a view to improve the quality of human life, while living within the carrying capacity of the subordinate ecology system, sustainable development should be maintained by the industry and the State should ensure environmental protection and prevent degradation thereof As a facet thereof as the principle of `the polluter pays', this court awarded damages for causing deforestation and directed development of eco-friendly environment,

125. Mining operations, though detrimental to forest growth, are part of layout of the industry, provision should be made for investment or infrastructural planning to reforest the area; and to protect environment and regenerate forest. The Ministry of Environment and Forests and all Secretaries of all the State Governments holding charge of Forest Departments, have a duty to prevent mining operations affecting the forest. It is significant to note that, whether mining operations are carried on within the reserved forest or other forest area it is their duty to ensure that the industry or enterprise does not denude the forest to become a menace to human consistence flora and founa and bio-diversity. The provisions of FC Act get attracted to ensure preservation of forest. In Garwal Case, this Court, prohibited mining operations. In Rural Litigation and Entitlement Kendra v/s State of U.P., 1989 Supp (1) SCC 53 and State of H. P. v/s Ganesh Wood Products, (1995) 6 SCC 363: (1995 AIR SCW 3487) it expressed anxiety to ensure eco-friendly environment. In the later case, two Judges Bench applied provisions of EC Act and EP Act and held that the application of sustainable development requires that appropriate assessment should be made of the forest wealth and the establishment of industries based on forest produce; other working should also be monitored closely to maintain the required ecological balance. No distinction ca be made between the Government forest and private forests in the matter of forest wealth of the nation and in the matter of environment and ecology. The same view was taken by Andhra Pradesh High Court in M/s. Colorock Pvt. Ltd. Vijaywada v/s The Director of Mines & Geology, Government of A.P., (1983) 3 Andh LT 39; M/s. Anupama Minerals v/s Union of India, AIR 1986 Andh Prqa 225; M/s Yashwant Stone Works v/s State of U. P., AIR 1988 All 121; Upendra Jha v/s State of BIHAR, air 1988 Patna 263; and Ambalal Manibhai Patel v/s State of Gujarat, 1986 (27)2 Guj LR 1073.

126. It is well settled law that mining operation is a non forest purpose. In Ambika Quarry Works v/s State of Gujarat (1987)1 SCR 562: (AIR 1987 SC 1073), a Bench of three-Judges of this Court had held that the renewal of a mining lease, without prior approval of the Central Government was in violation of S.2 of the FC Act. The same view was reiterated in State of MP. B/S Krishnadas Tikaram, 1995 Supp (1) SCC 587 and Tarun Bharat Sangh, Alwar v/s Union of India, 1993 Supp (3) SCC 115. In Tarun Bharat Sangh's case, it was, however, held that even for mining operations outside the Tiger Reserved Forest declared as protected are, prior permission of the Central Government was necessary. State of Bihar v/s Bansi Ram Modi, 1985 Supp 1(I) SCR 345: (AIR 1985 SC 814), strongly relied on by the Division bench in Samatha's case and teamed counsel for the respondents was overruled by this court in Ambika Quarry Work's case. Therefore the decision no longer operates s a ratio decidenti. The same view was taken by the High Courts in the above judgments. It would, therefore, be mandatory that even renewal of mining leases without prior approval and grant by the State Government, was held to be illegal.

127. It is seen from the evidence that the mining leases were granted by the State Government or were transferred and retransferred with the sanction of the State Government from private individuals to juristic persons, the partnership firms or companies. The lands with mining area are situated either in the reserved forest or forest land or within the scheduled area Therefore, all the mining leases or renewals thereof are ion violation of the Fifth Schedule. Equally, mining leases/renewals of mining leases by the State Government are in violation of Regulation 3(1)(a) read with S. 3(2) OF THE Regulation and F.C. Act. Therefore, they are all void.

125. The common and vociferous argument not only on behalf' of the State Government by the learned Additional Government Advocate but also as advanced by Sri. D.L.N. Rao, learned senior counsel appearing for respondents 4 and 5 as also by Sri. Phanindra, learned counsel for respondent No.6 to get over this hurdle is that in respect of leases that have been granted pursuant to the Notification dated 15.3.2003, they have been so granted only after obtaining the prior permission of the Central Government under section 2 of the Forest [Conservation] Act and therefore the grant of lease cannot be found fault with as being violative of any of the provisions of the Act. or the Environmental Protection Act, 1986 and it is also submitted that having regard to the rigorous scrutiny applied by the Central Government through its advisory body and the expert committee before granting permission for non-forest users on the touchstone of the Forest [Conservation] Rules, 2003 which by itself ensures not only protection of the forests but also the environmental protection from the ecological angle and also provides for corresponding regeneration of the forest wealth wherever the forest wealth is destroyed; that it is not open to this court to now examine the validity of such leases granted after obtaining the prior permission of the Central Government under section 2 of the Forest [Conservation] Act.

126. in essence, the contention is that prior permission under section 2 of the Forest [Conservation] Act by the Central Government virtually takes care of all possible conservation and protection aspects and section 2 clearance would act as `Gangajal' which can wash off all follies of deforestation, environmental degradation and ecological imbalances.

127. It is also urged that when once clearance as per section 2 is granted by the Central Government, it should be presumed that the Central Government as well as the State Government or both are of the view that the mining activity in the area is an activity of imminent need and it is inevitable to sacrifice the forest growth in the area leased for mining purposes. Can this be the legal position is the question that is required to be answered in these petitions,

128. lf the statute i.e. Section 2 of the Forest [Conservation] Act, 1980 mandates that any forest land reserved for such purpose, should not be deserved; that any forest land or portion thereof should not be used for any non-forest purpose; that any forest land or portion thereof shall not be assigned by way of lease or otherwise in favour of any private person or any authority; that any forest land or portion of it should not be cleared off trees which are grown naturally in that forest or portion thereof without the prior approval of the central government, the object and intention of the Forest [Conservation] Act, 1980 is clear that for the diversion of forest land for a non-forest user, the state government, though is the owner of the land and may have the power under the respective state legislation, and in the present case, the Karnataka Forest Act, 1963; to reserve and deserve forest areas, that power is made subject to the superior restrictive and regulative power of the central government. While even the purpose and object of the said Act namely Karnataka Forest Act, 1963 is to check and regulate non-forest activities in forest areas and to conserve Forests by declaring them as reserved and such is the avowed object in the state Act, Forest [Conservation] Act, 1980 seeks to provide a better safeguard for the retention and protection of the forest and to minimize the scope for diversion of forest land.

129. While in this writ petition, when the matter came up before this court for examination, it was only in the context of a rivalry amongst competing miners i.e. persons who were keen on bagging mining leases in the notified land, a land belonging to the state government and in the context of an allegation of favourable treatment in respect of private respondents in violation of the statutory provisions. For examination of even such complaint, this court had to inevitably look into the records and it is during the process of examination of the record not only more alarming developments and shocking facts come to light but also the total apathy on the part of the state government to the statutory mandate on the State to protect forests that has come to light to the shock and surprise of the court.

130. The development during the pendency of this petition before this court, with the state government granting mining lease in favour of a few persons who have been later added as respondents, granting mining leases even in forest areas and reserved forest areas and they having sought to come on record to protect their interest by pointing out that the stage has now reached for such persons to start working the lease hold rights of mining the ore, whether available in forest land or otherwise and such persons having very vociferously urged that the developments that have taken the subject beyond the jurisdiction and reach of this court, particularly by contending that once the state government has executed the lease in their favour, after going through the observations in Section 2 of the Forest [Conservation] Act, 1980 viz., for grant of such mining leases even in forest areas, the prior approval of the central government has been obtained and therefore there is nothing for this court to scrutinize on the aspect of protection of forest or protection of environment, the question has assumed importance in this writ petition and as to whether such submission and defence is a tenable one.

131. Section 2 of the Forest [Conservation] Act, 1980, which is a provision of exception which occurs in the main Act. The object and thrust of this Act is conservation and protection of forest. Section 2 is only an exception to the main object of the Act, which is conservation of forest and Indicating the set procedure that is required to be followed for claiming the exception to the rule of conservation. Under the Forest [Conservation] Act, 1980, conservation of forest is the rule, sacrificing forest for other non-forest activity is an exception. For claiming the exception, a strong and clear case has to be made out. Unfortunately, the way the state government and the central government have acted while exercising the power under Section 2 of the Forest [Conservation] Act, 1980 only indicates that the governments have proceeded as though Section 2 is the intent and main object of the Act and that the state government as well as the central government should go about finding ways and means of diverting forest land for non-forest use such as mining in the instant case, and to provide justification for diversion.

132. Forest [Conservation] Act, 1980 is a supplementary legislation to Indian Forest Act, 1927 or the respective State Forest Acts in areas where the Indian Forest Act, 1927 was not applicable and the avowed object of the two enactments operates together is to preserve and conserve forest, many subsequent protective legislations such as the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986 and even a few similar earlier protective legislations such as Wild Life (Protection) Act, 1972 and Water (Prevention and Control of Pollution) Act, 1974, are all legislations which for their effective implementation, which mainly depends on the effective working and implementation of the Indian Forest Act, 1927 and other Forest Acts, both general and conservation.

133. Conservation of forests by itself ensures maintenance and sustenance of environment, protection of the environment and on the preservation of the ecological balance and prevention of air and water pollution to a great extent. Conservation of forest by itself ensures preservation of the natural ecological balance and system, protecting and nurturing environment and more importantly avoiding the variety of pollution. If the forest conservation is one comprising of a unique or rare biosphere with unique fauna and flora in the region, what is protected and conserved is the natural treasure, perhaps an irreplaceable natural treasure, which could have been lost for eternity, if it had not been conserved.

134. It is the responsibility of the central and the state governments while functioning under the general Forest Act i.e. the Indian Forest Act, 1927 or the Karnataka Forest Act, 1963 or under the special Forest [Conservation] Act, 1980 to ensure that the existing forest areas are conserved, reserved, nurtured and further developed. Diversion should be strictly an exception to the rule of conservation, and only if imminent and unavoidable. However, it can be presumed that there can be never diversion of forest land to any type of non-forest user including a mining activity, if the forest land is one comprising of rare and endangered species of flora and fauna and is located in exclusive bio-diversity areas before the state government for de-reserving a reserved forest and before the central government for diversion of forest land to non-forest user by grant of special protection under Section Forest [Conservation] Act, 1980, the examination of such question should always be necessarily from the angle of object and purpose of the Forest Acts i.e. the general Forest Act and the Special Forest [Conservation] Act, 1980. The primary consideration is that of conservation of forest. Examination should be essentially from the conservation angle i.e. conservation of forest. The ownership of the forest land is inevitably with the state governments and it is to be noticed that the state governments act as statutory functionaries under several other enactments also, including the Mines & Minerals [Development 86 Regulations] Act, 1957 and even otherwise as the owner of the forest land.

135. It is to be noticed that whether a sate government or the central government, it is the same government which acts as a statutory functionary under the Indian Forest Act, 1927 as well as under other enactments including the Mines & Minerals [Development Regulations] Act, 1957. Though the government is the same, consideration and examination of the situation by the very government differs from situation to situation depending upon the particular enactment under which the power is exercised.

136. In the present case, it is noticed from the record that the state government no doubt issued a statutory notification in terms of Rule 59 of the Rules, notifying certain lands owned by the government, particularly reserved forest land and other forest land owned by the government for grant of mining leases in terms of the notification dated 15-3-2003 [copy at Annexure-B to the writ petition]. When once it is noticed that the notification for grant of mining leases is in respect of a land which is described as forest land, the kind of flora and fauna that exist in the forest, whether it is an ecological system to be conserved and preserved, whether because of the composition of rare plant and animal species and if as any endangered one also, the imminent need for protecting it from destruction are all very essential on the part of the state government. A need for sacrificing forest unless established, no forest can be sacrificed, particularly in the wake of indiscriminate destruction of forest over a period of time, having very adverse deleterious effect on the environment and future existence of the plant itself. The need and cry of the hour is conservation and when such importance of conservation had been realized by the governance way back in the year 1927 when the Indian Forest Act, 1927 was enacted, providing for reserved forest and even earlier when the Mysore Forest Act, 1900 was enacted and the need for conservation is reinforced and fortified by the Parliament by enacting the Forest [Conservation] Act., 1980, it is inevitable to infer that it is the mandatory duty on the part of the state government and the central government to conserve an existing forest to preserve and maintain an endangered ecological bio-system located in a forest or reserved forest area and to preserve it for posterity. Anything less than can easily be inferred as a violation and statutory violation on the part of the state and the central governments. This inference is also very obvious from the law as declared by the Supreme Court in the judgment rendered in the case of SAMATHA [supra]. It will be a travesty of things if the state government and the central government should either ignore, overlook or act contrary to the statutory provisions under the Karnataka Forest Act, 1963, Indian Forest Act, 1927, Forest [Conservation] Act, 1980 and a host of other conservation and protective enactments. If a state government should embark upon a venture for initiating a non-forest activity, a very deleterious hazardous non-forest activity such as mining in the present case, in a reserved forest area comprising of rare flora and fauna and should embark upon issue of a notification in the notification at Annexure-B to this writ petition, inviting applications for issue of mining leases in such reserved forest lands.

137. While records placed before this court and perused by this court, clearly indicate that not much attention was bestowed by the state government on the conservation aspect, particularly for conserving a forest, the reserved forest now notified for grant of mining leases nor the government was aware of the consequences of mining activity being undertaken in such forest areas, whether could lead to an adverse impact on the forest and could lead to the destruction of forest, environment, ecological system and even a permanent loss of rare bio-system comprising of rare medicinal plants, endangered animal and plant species, it has to be inevitably inferred that the action on the part of the state government in issuing the notification at Annexure-B is more a thoughtless mechanical action and not one issued after an informed need established examination of the situation. The information placed through affidavits of the secretary to government, forest department, very clearly establishes that the forest department had clearly opposed the diversion of the forest land for mining purpose and had also pointed out the existence of rare and endangered plant and animal species required to be conserved for posterity and had also submitted a detailed report based on the expert opinion and investigation on this aspect.

138. The notification dated 15-3-2003 issued under Rule 59 of the Rules had been issued just in the wake of enactment of Biological Diversity Act, 2002 [Act No 18 of 2003] by the Indian Parliament The preamble to this Act reads as under:

An Act to provide for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto

Whereas India is rich in biological diversity and associated traditional and contemporary knowledge system relating thereto;

And whereas India is a party to the United Nations Convention on Biological Diversity signed at Rio de Janeiro on the 5th day of June, 1992;

And whereas the said Convention came into force on the 29th December, 1993;

And where the said Convention reaffirms the sovereign rights of the States over their biological resources;

And whereas the said Convention has the main objective of conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of utilization of genetic resources;

And whereas it is considered necessary to provide for conservation, sustainable utilization and equitable sharing of the benefits arising out of utilization of genetic resources and also to give effect to the said Convention.

Be it enacted by Parliament in the Fifty-third Year of the Republic of India as follows:

139. The parliament had enacted this law and as indicated in the preamble, being a signatory to United Nations Convention on Biological Diversity signed at Rio de Janeiro on the 5th day of June 1992. In fact the preamble to the United Nations Convention on Biological Diversity, 1992 itself makes interesting reading and it is in the background of such object and purpose, the Indian Parliament had enacted the Biological Diversity Act, 2002. The preamble to the Convention reads as under:

The Contracting Parties,

Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components,

Conscious also of the importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere,

Affirming that the conservation of biological diversity is a common concern of humankind,

Reaffirming that States have sovereign rights over their own biological resources,

Reaffirming also that States are responsible for conversing their biological diversity and for using their biological resources in a sustainable manner,

Concerned that biological diversity is being significantly reduced by certain human activities,

Aware of the general lack of information and knowledge regarding biological diversity and of the urgent need to develop scientific, technical and institutional capacities to provide the basic understanding upon which to plan and implement appropriate measures,

Noting that it is vital to anticipate, prevent and attack the causes of signet reduction or loss of biological diversity at source,

Noting also that where there is a threat of signet reduction or loss of biological diversity, lack of full scientific certainly should not be used as a reason for postponing measures to avoid or minimize such a threat,

Noting further that the fundamental requirement for the conservation of biological diversity is the in situ conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings,

Noting further that ex-situ measures, preferably in the country of origin, also have an important role to play,

Recognizing the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components,

Recognizing also the vital role that women play in the conservation and sustainable use of biological diversity and affirming the need for the full participation of women at all levels of policy-making and implementation for biological diversity conservation,

Stressing the importance of and the need to promote, international, regional and global cooperation among States and intergovernmental organizations and the non-governmental sector for the conservation of biological diversity and the sustainable use of its components,

Acknowledging that the provision of new and additional financial resources and appropriate access to relevant technologies can be expected to make a substantial difference in the world's ability to address the loss of biological diversity,

Acknowledging further that special provision is required to meet the needs of developing countries, including the provision of new and additional financial resources and appropriate access to relevant technologies,

Noting in this regard the special conditions of the least developed countries and small island States,

Acknowledging that substantial investments are required to conserve biological diversity and that there is the expectation of a broad range of environmental, economic and social benefits from those investments,

Recognizing that economic and social development and poverty eradication are the first and overriding priorities of developing countries,

Aware that conservation and sustainable use of biological diversity is of critical importance for meeting the food health and other needs of the growing world population, for which purpose access to and sharing of both genetic resources and technologies are essential,

Noting that, ultimately, the conservation and sustainable use of biological diversity will strengthen friendly relations among States and contribute to peace for humankind,

Desiring to enhance and complement existing international arrangements for the conservation of biological diversity and sustainable use of its components, and

Determined to conserve and sustainable use biological diversity for the benefit of present and future generations.

140. The Biological Diversity Act, 2002 though is a central enactment and the notification dated 15-3-2003 is issued by the state government, the notification being one for grant of mining lease of major minerals and in the property/land comprising of reserved forest areas, the state government is also obliged to respect the object and intention of such enactment and all its actions and decisions should be one conforming the provisions of the Biological Diversity Act, 2002 and Rules framed thereunder, both in letter and spirit. The stand of the state government and the developments as revealed in the records placed before the court by the state government, only indicate that the decision of the state government to grant mining leases in terms of the notification dated 15-3-2003 is if at all is an act to defy and violate in letter and spirit the objects and purpose of even the Biological Diversity Act, 2002. The notification dated 15-3-2003 gets faulted for this reason also. The state government can examine the question of grant of mining leases in the background of these statutory provisions and with proper expert advice and guidance and only in favour of a proper working evaluation of the entire situation, particularly for conserving forest and protecting forests, such examination should be in a comprehensive manner and encompassing all aspects of protection and conservation of forest and then only the state government can exercise its powers for issue of a notification in terms of the Rule 59 of the Rules, if it is found to be necessary to issue such a notification for grant of mining lease in respect of government lands including the lands located in forests. These aspects are also examined for the reason that mining activity is an activity which will have a direct bearing on the working of even the Biological Diversity Act, 2002.

141. The state government, which is the same government whether it acts under the Mines & Minerals [Development & Regulations] Act, 1957 or the Karnataka Forest Act, 1963 or even Forest [Conservation] Act, 1980, appears to have lost sight of its role and responsibility under the conservation Acts, but had bestowed attention only to the role and power it has under the Mines 8s Minerals [Development & Regulations] Act, 1957.

142. In the wake of the notification dated 15-3-2003 [copy at Annexure-B to the writ petition] indicating that a large extent of reserved forest land is sought to be leased for mining purpose in favour of private persons and particularly as such land was a land which had been held on a prior lease granted in favour of a private person also for mining purpose and parts of which had been surrendered, this court embarked upon an unprecedented move of undertaking a spot examination of some of the notified forest lands to ascertain as to whether any forest growth had been left unaffected in the notified areas and as to the nature of the forest land. A personal visit to some of these notified areas particularly the reserved forest areas in Sandur taluk in the vicinity of Sandur town in Kumaraswamy range, while indicated to the naked eyes the existence of lush, rich, virgin plant growth and existence of many rare species of endangered animals, the report produced by the National Environmental Engineering Research Institute (NEERI) of Nagpur, and forest department are also one of confirmation of the visual effect indicating that the forest did comprise of rare and even endangered plant and animal species and also species of some very rare medicinal plants. Such forest wealth is a treasure by itself. The treasure that is required to be preserved for all times and for posterity. It is the duty we owe to the future generation. Even if we are unable to conserve by taking commensurate preventive steps, a definite destructive step should never be attempted to and mining activity is definitely an activity that should not be allowed and encouraged and to be embarked upon in a forest area comprising of such rare and endangered plant and animal species, flora and fauna and forest. growth that is limited in existence and rare and unusual in the otherwise dry and deciduous terrain of the region. The lush forest at Kumaraswamy range and other ranges, undoubtedly are like an oasis in a desert. Unfortunately, the state government has not exhibited any awareness at all about the existence of such a rare and real biosphere in the region and the need for conservation of the same.

143. While it is undoubtedly true that it is for the executive wing of the state to form policies and to have priorities, when there is a total failure on the part of the executive wing of the state in observing statutory mandatory compliances and in discharging its mandatory duties, particularly towards conservation of forest and the ecological system and even when such developments are within the knowledge and notice of the court and though the inaction rather dereliction of statutory duty on the part of the state government. is not directly questioned in the present writ petition, I am of the definite view that overlooking such deficiencies will be a dereliction of duty on the part of the courts even when it has come to the knowledge of the court and while the court is exercising its Constitutional power of judicial review of administrative action and to turn a blind eye to all these developments it can only amount to shirking of the responsibility and duty of playing a corrective role as envisaged under the constitution by the superior courts.

144. Any power, either statutory or administrative, is required to be exercised after taking into consideration and keeping the object in mind and after examination of all relevant matters and eschewing irrelevant matters. Any action pursuant to the exercise of power if is to be sustained, should not be an arbitrary action, but a fair informed statute complying action. It is very obvious in the present case that before issue of the notification dated 15-3-2003 the state government has definitely not taken into consideration all relevant aspects, particularly such relevant aspects which it ought to have taken note of under the Karnataka Forest Act, 1963 and Forest [Conservation] Act, 1980 while forwarding the applications for approval by the central government. Such action inevitably failed to meet the requirement of producing a sustainable action and issue of the notification dated 15-3-2003 itself being an action on the part of the state government without due to application of mind and not after taking into consideration the relevant aspects, the notification itself has to be inevitably quashed. The state government can while is at liberty to cause issue of a notification under Rule 59 of the Rules, in respect of the lands owned by it, when once a particular land is found to be a forest land and that too a reserved forest land, it is incumbent upon the state government to exhibit due awareness of this fact and to take into consideration all the requisite aspects from the context of the conservation Acts, protection Acts and then to embark upon the issue of notification. It is also necessary on the part of the state government to weigh the competing interest of conservation and development and to embark on the issue of notification as at Annexure-B only if the need for development is found to outweigh the need for conservation. An uninformed, thoughtless, blind decision to issue the notification will inevitably lead to nullifying the notification, particularly when it is within the knowledge of the Constitutional court exercising writ jurisdiction while reviewing administrative actions.

145. I am of the view that putting forth objections for such a course of action in the name of public interest litigation and on the premise that the action on the part of the state government in issuing the notification itself had not been challenged in this writ petition nor any person has questioned the validity of this notification is an untenable objection, as discussed in the earlier part of this order and this court exercises only the power of judicial review of administrative action and within the parameters of the provisions of' the Constitution and the statutory provisions. The examination has been only in the context of the case before the court and the relevant actions of the government as revealed from the files placed before the court. The matter has been brought before the court by a person who is concerned with the subject matter, though it is a different thing, that the relief that the petitioner sought for is not exactly what has followed. While the petitioner and other contesting respondents may have a common interest in securing the lease of government land for mining purposes, and for making profit out of such mining activity and therefore raised objections in respect of any order or action that can come in the way of one party or the other eventually getting the mining lease, such is not the consideration for the court, particularly for examining the validity of the administrative action on the touchstone of Constitutional and statutory provisions.

146. However, further objections that the development being led to the extent some applicants obtaining mining leases that having been notified, does merit examination. While the notification notifying government reserved forest land for grant of mining lease itself is quashed by issue of a writ of certiorari and further directions as under are issued for compliance by the state government, in so far as the respondents in whose favour the mining leases have already been granted pursuant to this notification on their applications, directions are issued to the state government to take steps to have such leases determined after issue of notice to the particular respondents as the said lease is affected even in terms of the answer to the questions initially raised in this writ petition is to be applied and for such purpose, the state government may invoke such terms of the lease deed and other statutory provisions, put the lessee on notice, hear them and take action as per law for cancellation of the lease, as conservation of forest, if need be, is one in the larger public interest and mining lease even if had already been granted in favour of private persons, it can be terminated by the state government to sub-serve the larger public interest and as private interest has to necessarily yield in favour of the larger public interest when it is found that grant of any right or part of any right in favour of private persons by the state government is improper or otherwise is deleterious to and can affect the public interest.

147. As a result, this writ petition is allowed, proceedings of the Government of Karnataka leading to the issue of the notification dated 15.03.2003 and the notification itself is quashed by issue of writ of certiorari. Consequently all subsequent actions in respect of the notification dated. 15.03.2003 are all declared to be bad in law and fall to ground. However in the wake of the answers to the two questions initially framed in this writ petition, it is hereby declared that (1) the State government if issues a notification under rule 5 of the Mineral Rules, then only applications received after the period mentioned in the notification alone can be considered by the State government and such applications filed before the issue of the notification cannot be considered for grant of mining leases; (2) examination and consideration by the government of the applications made for lease of government's land in response to the notification dated 15.03.2003 being improper and arbitrary and being in installments, all such leases even if had been granted in favour of any application filed in respect of the notification dated 15.03.2003 are all quashed. State government to formulate proper policy/guidelines for considering applications for grant of mining leases in government land and have it duly published for the benefit of the general public; and (3) in respect of leases in favour of non parties to this petition, which are also affected by this order, State government to take consequential action for cancellation after issue of notices to them, hear them and then take action in accordance with law.

148. The state government, as a matter of rule, to examine the desirability, need and the necessity for grant of mining leases in forest areas particularly by obtaining expert opinion in the matter of competition between conservation and the development. The government should bear in mind that conservation of forest wealth will result in conservation of the mineral wealth also and the state should not trade short term gains for long term losses or an eternal loss.

149. Rule made absolute. Parties to bear their respective costs.

150. Consequently the following further directions are issue to the 1st respondent-state government:

a) The state government should always make a clear distinction between forest area and non-forest area while granting mining leases;

b) The state government should always show awareness to the existing forest whether declared as reserved forest or otherwise and if there is an existing forest in any area, the first and the foremost effort should be to conserve the forest;

c) If the area has already been declared as reserved forest area, it should normally be retained without being disturbed and only if the state government is fully satisfied that there is inevitable need justifying de-reservation and to permit a non-forest activity, that should be examined keeping in view the nature of non-forest activity proposed to be carried out in the forest area, the impact and consequence of such non-forest activity in the forest area, the extent of actual forest being damaged or destroyed, as to the duration over which such forest has developed in the area, whether the forest is in a unique and endangered biosphere, whether there is an imminent need to conserve such forest, if it is a unique type of forest or an endangered type of biosphere.

d) Mining activity being, undisputedly, a very deleterious activity for preserving and conserving forest, mining activity should be totally avoided in forest areas.

e) Conserving forest can also achieve the object of conserving the mineral imbedded in the earth beneath the forest growth and it is not as though the mineral is lost and therefore the State government to bestow attention to this aspect of conserving mineral also.

f) The state government should make a very scientific and conscious evaluation of the consequences of losing precious forest as to whether it is so very imminent and inevitable for exploiting the mineral for being used in the production of the mineral for country's purpose and development and such related aspects should always be examined and only if it is found that the benefits of exploiting mineral far outweigh the losses due to the destruction of forest and there is imminent need for the mineral, then alone, the state government should think of notifying even a forest area owned by the state government as one available for lease to carry out mining operations in the area.

g) Mining operation being undisputedly capable of causing immense pollution, ecological imbalance and even environmentally disastrous, the state government should always undertake a scientific study of ways and means to avoid such possibilities. The mineral if can be obtained by non mining activity or can be obtained by any other means that should be explored and not to resort to mining operation in forest areas.

h) As there is an imminent need to conserve existing forest, state government is directed to put a hold on all mining activities in forest areas, undertake a scientific study of effects and consequences of continued mining in such forest areas, the impact of mining activity on the entire forest, need for conserving forest growth, need for protecting forest growth and if the forest growth comprises of any endangered flora or fauna or comprises of a rare biosphere with kinds of flora and fauna found only the area, the impact of mining on such flora and fauna and only after such an evaluation and on being satisfied that all precautions are followed, permit a non-forest activity on the land.

i) All the mining leases granted during the pendency of the above writ petition before this court and under the notification dated 15-3-2003 [Annexure-B to the writ petition] being leases granted during the pendency of the writ petition and as it is not in dispute that the state government has not shown its awareness to the need or necessity to conserve forest in the notified areas, particularly with large tracts of forest coming under the category of reserved forest, these leases cannot be sustained and are quashed hereby by issue of a writ of certiorari.

j) In respect of all other mining leases not covered under the notification dated 15-3-2003 but in forest areas, reserved forest or non-reserved forest, the state government is required to follow the above directions and till a scientific evaluation is made and the imminent need for carrying out mining operations in the forest area is established and only if it is established that it is inevitable for carrying on the mining operation even at the cost of losing forest, then alone, leases can be permitted to work, otherwise, the state government is directed to take steps for cancellation of such leases by following the procedure envisaged under the Act and the Rules and in terms of the conditions stipulated for resumption of the lease under the mining lease itself.

k) The state government should always bear in mind that the larger public interest will overweight the smaller individual or personal interest or business interest of the lessees who would have taken mining leases of the areas for commercial production and from the business angle and the prospects of existing lessees incurring losses or losing profit cannot come in the way of state government pursuing rightful action for protecting the forest wealth, for conserving and retaining endangered species of flora and fauna and even to retain a biosphere of unique nature developed in nature over millions of years which once interfered or destroyed will be lost to mankind for ever.

l) The state government is hereby directed not to embark on granting any mining leases in forest areas as a matter of rule and only as an exception, forest areas may be notified for grant of mining leases, after fully establishing the imminent and inevitable need for exploiting the mineral and if it is found such exploitation is in the national interest for making available mineral which otherwise cannot be obtained for the nation building activities including defence, research or other scientific activities.

m) The state and the central governments may also consider the possibilities of nationalization of mining industry so that the private profit motive does not come in the way of protecting environment, conserving forests and to avoid ecological disasters, so that the government once becomes aware that the mining operations are deleterious to this cause, it can without any hassle, straightaway stop mining activities.

n) The state and the central governments to consider the prospects for ushering in suitable legislation for such conservation of minerals, if not in all areas, at least in forest areas, for the immediate present and to take up further steps in respect of other areas in a phased manner.

151. Registry directed to forward a copy of this order to (1) The Chief Secretary, Government of Karnataka, Bangalore - 560 001; (2) the Principal Secretary to the Government of India, New Delhi; and (3) the Secretary to the Government of India, Department of Mines, Shastri Bhavan, New Delhi.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //