N. GODAVARMAN THIRUMULPAD versus UNION OF INDIA AND ORS.

[2018] 11 S.C.R. 654

[2018] 11 S.C.R.

T. N. GODAVARMAN THIRUMULPAD

UNION OF INDIA AND ORS.

(I.A. Nos. 1424-1425 of 2005)

(Writ Petition (Civil) No. 202 of 1995)

SEPTEMBER 14, 2018

[MADAN B. LOKUR, S. ABDUL NAZEER ANDDEEPAK GUPTA, JJ.]

Environmental Law:

Forest conservation – Interlocutory applications seekingDdirection to the State/Authorities to ensure that in the forest, non-forest activities (including mining operations) are not carried outin the garb of lease by the licensee – Also sought initiation of criminalproceedings against the erring persons/officials etc. – CentralEmpowered Committee constituted by the Court – Committee foundEthat grant of mining in favour of the licensee in question, was inviolation of Forest Conservation Act and extraction of iron ore andtransportation thereof was in violation of approved mining planand also noted various other illegalities and irregularities –Committee recommended recovery of sale proceeds, sale ofconfiscated iron ore, criminal proceedings against the erringFofficials and blacklisting of the licensee – State filed affidavit statingactions taken in compliance of the recommendation of the Committee– Held: Report of the Committee is accepted – State has takennecessary steps – Applications, in so far as licensee is concerned,are disposed of.

Disposing of the applications, the Court

HELD: The Report of the Central Empowered Committeeis accepted. From reading of the Report of the CEC, it isapparent that the licensee had flagrantly violated the law and had

carried out mining in the forest areas. The affidavit of the StateGovernment reveals that the State Government itself was aliveto these violations and has taken necessary steps in the matter.The State has taken action not only to stop mining but also toinitiate proceedings against the erring officials. The affidavit ofthe State shows that all mining activities in the forest areas havebeen stopped long time back. It is clear that steps have beentaken to recover the entire sale proceeds of the CMT of iron orethat was mined and transported by the licensee. It is also clearthat State Government has initiated disciplinary proceedingsagainst its officials who were found to be guilty of professionalmisconduct. Disciplinary enquiry has also been ordered againstthe then Assistant Mining Officer, by the Mining Department ofthe Government of Chhattisgarh. The Department of Commerceand Industry of the State Government had already blacklistedthe licensee. It is clear from the records that the confiscatediron ore has been mined from the adjoining forest land. Theauthorities concerned are free to auction the aforesaid confiscatediron ore in accordance with law. Therefore, it is not necessary todirect the CBI enquiry as prayed for in the applications. Theapplications are accordingly disposed of insofar as the licenseeis concerned. [Para 7] [662-D-H; 663-A]

CIVIL ORIGINAL JURISDICTION: I.A. Nos. 1424-1425 of2005 in Writ Petition (Civil) No. 202 of 1995.

Under Article 32 of the Constitution of India.

Harish N. Salve, Rakesh Dwivedi, Sr. Advs. A. D. N. Rao, SudiptoSircar, Siddhartha Chowdhury, Ms. Aparajita Singh (A.Cs.), PrashantBhushan, S. Shrivastava, Pranav Sachdeva, Siddharth Shukla, FarrukhRasheed, Apoorv Kurup, A. C. Boxepatro, G. Kaushal, Siddharth Iyer,S. Wasim A. Qadri, D. L. Chidanand, Devasis Bharuka, Ms. SuhasiniSen, Ritesh Kumar, G. S. Makker, Ravindra Bana, Mrs. Anil Katiyar,Baijnath Patel, Gopal Singh, Kumar Milind, Baij Nath Patel, P. S. Sudheer,Advs. for the appearing parties.

AThe Judgment of the Court was delivered by

S. ABDUL NAZEER, J.

I.A. Nos. 1424-1425 of 2005

1. Mr. Bhupesh Baghel, M.L.A., has filed I.A. Nos. 1424-1425Bof 2005 in the above writ petition seeking the following reliefs:

(i) Direct the respondents 1 to3 herein to ensure that no non-forest activities including mining operations are carried outby the respondents 4 to 7 herein in the forests under the garbof lease executed by the State of Chhattisgarh or permissionCgranted by the State of Chhattisgarh in their favour;

(ii) Direct the respondents 1 to 3 to initiate criminal prosecutionof the respondents 4 to 7 herein as also other officials of theState of Chhattisgarh with whose connivance, the respondents4 to 7 herein have carried out and/or are carrying on non-forest activities in the forests;D

(iii) Direct the C.B.I. to make an enquiry with regard to violationof the provisions of the Forest Conservation Act even afterthe order dated 12.12.1996 of this Hon’ble court by the Stateof Chhattisgarh after it came into existence on 01.11.2000and to fix the responsibility of the officials who are responsibleEfor granting lease or to permit non-forest activities incontravention of the provisions of Forest Conservation Act inforests in the State of Chhattisgarh and to fix responsibilityand then to intimate departmental proceeding and/or theircriminal prosecution;

F(iv) Direct determination and recovery of compensation fromrespondents 4 to 7 herein for causing environmental lossesby carrying on non-forest activities in the forest area forcommercial purposes;

(v) Direct the respondents 2 & 3 to take immediate steps forGforest protection and rehabilitation of mined area by plantingsufficient number of trees and by taking immediate measuresfor compensatory afforestation of the area; and

(vi) SPass such other order or orders as this Hon’ble Court maydeem fit and proper in the facts & circumstances of the caseHas well as in the interest of justice.”

2. In this case we are concerned with the illegal mining activitiesof by Mr. Anil Lunia (respondent No.4) in the State of Chhattisgarh.According to the applicant, Anil Lunia, an industrialist, on 31.10.1998applied for mining prospecting license in Bhainsakanhar, District Kanker,to mine iron ore at Bhainsa Kankar, District North Bastar Kanker. TheGovernment of Chhattisgarh, Mining Department, accorded prospectinglicense on an area of admeasuring 18.27 hectares vide Khasra Nos.123, 125, 127, 129, 130 and 139 vide letter dated 25.1.2002. Writtenpermission was also accorded on 29.5.2002 along with certain conditionsfor the prospecting. lease deed was executed on 26.5.2003 by theCollector, North Bastar Kanker in favour of Anil Lunia. In this deed ithas been, inter alia, mentioned that the lessee shall not cut any treewithout the sanction of authorities and shall not enter reserved forest oruse forest roads for transporting purpose without the written sanction ofDFO. It was also mentioned that the lessee has to allow inspection byState/Central authorities at any point of time. In the month of June-July2003, Anil Lunia started mining operations but not as per the approvedplan of IBM. He did not adhere to the conditions of lease and startedcutting trees without permission. In complaint made by one NGO, itwas stated that thousands of trees have been chopped off by the licenseein violation of the Forest Conservation Act. Conservator of ForestKanker constituted 3-member inquiry team which gave its report onthe basis of which Sub-Divisional Officer issued letter dated 18.9.2003,inter alia, mentioned that how the notified protected forest was shownas non-forest revenue land just to facilitate the mining lease withoutcomplying with the provisions of Forest Conservation Act. Thesubsequent proceedings would show how part of the State machinerywas involved in allowing violation of Forest Conservation Act. Theapplicant has also referred to certain judicial proceedings initiated byAnil Lunia. That is how the aforesaid applications have been filed byhim seeking the said reliefs herein.

3. Anil Lunia has filed his reply affidavit denying the allegations/averments made in the application. On the basis of the order of thisCourt, Central Empowered Committee (for short ‘CEC’) wasconstituted. The CEC after examining the matter during various datesof hearing and after site visit, filed its report on 25.9.2008. It has examinedat length the documents in relation to grant of mining on various land infavour of Anil Lunia in violation of Forest Conservation Act and has

Acome to conclusion that iron ore have been extracted and transportedin blatant violation of the approved mining plan. The mining lease wasexecuted in violation of the statutory requirements. The irregularities/illegalities noted by the CEC are as under:

i) the prospecting license was granted even through Mr. LuniaBwas found to be involved in illicit felling of trees in the appliedarea. The recommendations of the Collector, Kanker againstthe grant of the prospecting license and thereafter forcancellation of the prospecting license were disregarded/ignored;Cii) iron ore mineral areas in District Bastar are reserved forPublic Sector Undertakings. As an exception, permission ofthe Central Government under section 5(1) of the MMRDAct for grant of prospecting license as well as for mininglicense in favour of Mr. Lunia were obtained on the groundthat iron ore will be captively used in the crushing – screeningDand sponge Iron Plant being set up by Mr. Lunia. In flagrantviolation of the above, the iron ore extracted by Mr. Luniawas allowed to be sold;iii) the mine till its closure operated without the requisiteenvironmental clearance. This is in violation of theEEnvironmental Impact Assessment Notification issued by theMoEF under the Environment (Protection) Act, 1986;

iv) as per the approved mining plan the permissible annualproduction was 6000 tonnes. As against this, 69,000 MT ironore was extracted during 2003-2004. During 2004-2005 &F2005-2006 35400 MT & 18281 MT of iron ore respectivelywere extracted. Out of the above, 99,913 MT wastransported. At no stage did the Mining Department objectto these brazen violations;

v) at the time the extraction from the mine had just commenced,Gthe Three Member Enquiry Committee set up by the ForestDepartment held that the mining lease area was in anundemarcated protected forest. In spite of the above, theCollector, Kanker did not put stop to the mining. Instead,after keeping the matter pending for eight months, he took abaffling decision that it is only after the State agrees with theH

proposal of the Forest Department to notify “new forest”(i.e. reserved forest), that the cancellation of the mining leasewill be considered;

vi) even after the Enquiry Committee constituted by the StateGovernment held that the said area is forest land, the miningwas allowed to continue. What is more one Member of theCommittee, after gap of more than four months and out ofthe blue without giving any reasons, made number of adverseobservations against the earlier unanimously agreed report;

vii) no action for the cancellation of the mining lease was takeneven after Mr. Lunia was found to be involved in illicit fellingin the adjoining reserved forest;

viii) the detailed directions given in the State Government’s circulardated 12.1.2000 were not adhered to. Before grant of themining lease the report of the Forest Department was requiredto be taken into consideration and which was not done.Significantly, the letter signed for this purpose was notdispatched on the request of Mr. Lunia. The procedureprescribed for field verification at the time of permitting miningin the area was not followed; and

ix) though in the enquiry conducted by the State, the then Collector,Kanker has been held responsible for committing numberof illegalities and irregularities no action has been taken againsthim on the ground that he has already retired.

4. The recommendations made by the CEC are as under:

a) The State of Chhattisgarh should be directed to recover theentire sale proceeds of the iron ore extracted and transportedby Mr. Lunia at the then prevalent rates. An equal amountshould be directed to be deposited by the State of Chhattisgarhas compensation for its failure to enforce the law of the landand comply with the orders of the Hon’ble Supreme Court;

b) The iron ore confiscated by the State should be immediatelysold by inviting tenders after giving wide publicity;

c) Criminal proceedings should be initiated against the thenCollector, Kanker for criminal breach of trust and otherprovisions of the Indian Panel Code;

Ad) Mr. Anil Lunia should be blacklisted by the State Governmentand debarred for at least period of ten years and should beheld ineligible for any public office.

5. The respondent-State of Chhattisgarh has filed affidavits on30.9.2008 which detailed actions taken by the State of Chhattisgarh inBresponse to the recommendations of the CEC. This was followed by afurther affidavit dated 24.11.2008.

6. Pursuant to the replies filed to these affidavits, the State ofChhattisgarh has filed another affidavit giving latest position and stepsthat have been taken pertaining to this case. The contents of this affidavitCare as under:

i) The State Government issued demand notice dated23.9.2008 for the recovery of the entire sale proceeds of the1,22,686.16 CMT of iron ore that was mined and transportedby Mr. Anil Lunia from Khasra Nos.123, 125, 127, 129, 130D& 139 of village Bhaisan Kanhar, Bastar. The said demandnotice required Mr. Anil Lunia to deposit sum ofRs.6,66,75,633.75/-. However, Mr. Anil Lunia failed to depositsaid amount. Therefore, the Collector, North Bastar, Kankerissued Revenue Recovery Certificate (RRC) to theCollector, Durg (where Mr. Anil Lunia resides), who thenEdirected the Tehsildar, Durg to register case for the recoveryof revenue on 11.02.2010. The Tehsildar, Durg accordinglyregistered revenue recovery case no. 01A/76/2009-10against Mr. Anil Lunia and issued summons dated 08.10.2010to him for appearance in Court. The Tehsildar’s Courtthereafter issued demand note on 29.12.2010 which wasFchallenged by Mr. Anil Lunia by filing civil suit (no. 46 A/2011) in the Court of the Ld. Eighth Civil Judge, Class II,Durg. The Ld. Eighth Civil Judge, Class II, Durg issued aninjunction order on 04.04.2011, and the case is currentlypending before that Court. true translated copy of theGorder dated 04.04.2011 of the Ld. Eighth Civil Judge, ClassII, Durg is annexed and marked as Annexure RCG-1.

ii) The Hon’ble High Court of Chhattisgarh had passed an orderdated 16.12.2008 (in W.P. No. 6355/2005) directing the parties(i.e. the State of Chhattisgarh and Mr. Anil Lunia) to maintainH

status quo with regard to the confiscation proceedings againstMr. Anil Lunia. The said writ petition has subsequently beentransferred to this Hon’ble Court vide order dated 24.12.2008and has been re-numbered as Transferred Case No. 16 of2018.

The confiscated iron ore is currently lying at site and natural

vegetation has grown over it. This can be observed from thelatest photographs of the site, copies of which are beingannexed and marked as Annexure RCG-2.

iii) That, the State Government also initiated disciplinaryproceedings against certain officials of the State Government,which are described below:-

A. disciplinary enquiry was ordered against Mr. R.A.Pathak, the then SDO, Bhanupratappur, by the ForestDepartment of the Government of Chhattisgarh under theChhattisgarh Civil Service Rules, 1966. Mr. R.A. Pathakwas found guilty of professional misconduct after givinghim opportunity of being heard. Accordingly, and pursuantto the recommendation of the Chhattisgarh Public ServiceCommission, the State Government issued an order dated30.01.2010 pursuant to Rule 10(5) of the Chhattisgarh CivilService Rules, 1966, penalising Mr. R.A. Pathak by fixinghis pay to the minimum pay scale.

B. disciplinary enquiry was also ordered against Mr. M.Kalyani (the then Joint Collector, Kanker), by the GeneralAdministration Department of the Government ofChhattisgarh. Mr. M. Kalyani was also found guilty ofprofessional misconduct, and the State Government issuedan order dated 09.12.2011 pursuant to Rule 12 of theChhattisgarh Civil Service Rules, 1966, which penalisedhim by fixing his pay at the minimum pay scale for threeyears.

C. disciplinary enquiry was also ordered against Mr. S.K.Pandey, the then Assistant Mining Officer, by the MiningDepartment of the Government of Chhattisgarh underRules 47 and 48 of the Chhattisgarh Civil Service Pension

Rules, 1976. Mr. S.K. Pandey however filed Writ Petition(No. 5748/2009) in the Hon’ble High Court of Chhattisgarhassailing the aforesaid action of the State Government andwas granted injunctive relief vide order dated 24.10.2009.

D. By an order dated 28.9.2010, Mr. P.N. Naik, the thenBAssistant Grade II, was also found guilty of professionalmisconduct by the Directorate of Mining & Geology ofthe Government of Chhattisgarh, pursuant to hearinggranted to him. Mr. P.N. Naik was penalised bywithholding two increments.

Civ) The Department of Commerce and Industry of theGovernment of Chhattisgarh had blacklisted Mr. Anil Luniaby an order dated 22.9.2008. The order of blacklistingcontinued for six (6) years until 08.09.2014. However, theorder dated 08.09.2014 stated that Mr. Anil Lunia could beblacklisted again in the event Court of Law ruled againstDhim in future.

7. Having heard learned counsel for the parties, we accept theReport of the CEC. From reading of this Report of the CEC, it isapparent that Mr. Anil Lunia had flagrantly violated the law and hadcarried out mining in the forest areas. The affidavit of the StateEGovernment reveals that the State Government itself was alive to theseviolations and has taken necessary steps in the matter. The State hastaken action not only to stop mining but also to initiate proceedings againstthe erring officials. bare reading of the affidavit of the State showsthat all mining activities in the forest areas have been stopped long timeFback. It is clear that steps have been taken to recover the entire saleproceeds of the CMT of iron ore that was mined and transported by Mr.Anil Lunia from Khasra Nos. 123, 125, 127, 129, 130 and 139 of VillageBhaisan Kanhar, Bastar. It is also clear that State Government hasinitiated disciplinary proceedings against its officials who have found tobe guilty of professional misconduct. Disciplinary enquiry has also beenGordered against Mr. S.K. Pandey, the then Assistant Mining Officer, bythe Mining Department of the Government of Chhattisgarh. TheDepartment of Commerce and Industry of the Government ofChhattisgarh had already blacklisted Mr. Anil Lunia. It is clear from therecords that the confiscated iron ore has been mined from the adjoining

forest land. The authorities concerned are free to auction the aforesaidconfiscated iron ore in accordance with law. Therefore, it is not necessaryto direct the CBI enquiry as prayed for in the applications. Theapplications are accordingly disposed of insofar as Anil Lunia isconcerned.

8. There shall be no order as to costs.

Kalpana K. Tripathy

IAs disposed of.