Sri M.D. Mahesh vs The Secretary Department of Revenue State of Karnataka and Others

J.S. Khehar, C.J.—Through the instant order, we propose to dispose of W.P. Nos. 33344-45/2010 and W.P. No. 6426/20 11. Even though the controversy raised in the instant writ petitions was subject matter of challenge earlier at the hands of the Petitioner herein, it is not relevant to make a reference thereto. Suffice it to state, that the land measuring 301.33 acres comprised in Sy. No. 22 of Kachenahalli village, Kasaba hobli, Magamangala Taluk, Mandya District, is the subject matter of consideration.

Out of the aforesaid land, vide notification dated 05.03.1982, 256.19 acres were transferred to the Department of Forest for afforestation. Consequently, mutation to the aforesaid effect came to be entered in the revenue records. The balance area of 45.14 acres, out of the erstwhile 301.33 acres comprised in Sy. No. 22 referred to hereinabove, remained with the Revenue Department. Out of the balance of 45.14 acres of revenue land, the Petitioner herein was granted a quarrying lease over 13.20 acres on 28.1 1.2007.

Despite grant of a quarrying lease to the Petitioner, a dispute arose between the Forest Department, as also, the Revenue Department, whether the land, over which the Petitioner was granted a quarrying lease, fell within the "forest area" and/or "revenue area".

In the earlier litigation raised at the hands of the Petitioner, merely on account of the fact, that, the leased area was deemed to be the forest area, the claim raised at the hands of the Petitioner came to be declined. The impugned order now issued bearing endorsement dated 22/24.12.2010 (Annexure-L), acknowledges, that the quarry lease granted to the Petitioner in Sy. No. 22/Pl falls in "revenue land". We shall therefore proceed to consider the controversy raised by the Petitioner, by accepting, that the leased area of 13.20 acres held by the Petitioner, falls totally within the revenue area.

Despite the aforesaid determination, and despite the fact, that the impugned order acknowledges, that the entire leased area in the hands of the Petitioner falls in "revenue land", the impugned order dated 22/24.12.2010 seeks to cancel the lease granted to the Petitioner. The basis of the aforesaid determination as has been recorded in the impugned order (the relevant extract), is being reproduced hereunder:

With respect to subject cited above the Sri. M. D. Mahesh S/o Devaraju has been granted with Quarry License bearing No. 950 in Sy. No. 22 measuring an extent of 13 Acre 20 guntas in Kachenaha Kachenaha Kachenahalli Village, Nagamangala Taluk under Mines and Minerals Concession Rules 1994. The Range forest Officer Nagamangala Jurisdiction Nagamangala have addressed a communication stating that: the entire area has been handed over to Forest. Department and further the said area has been utilized for aforestation, through Government of Karnataka the entire area has been dug with trenches for protection. Further a proposal is made to categorize the entire area as reserve forest area. Under the Forest Protection Act 1980 the entire area has been protected. In the event of quarrying in the said area which would certainly destroy the forest riches. Hence sought for cancellation of Leave vide Reference (1) & (2)

Insofar as the purpose for which the land measuring 256.19 acres came to be transferred to the Forest. Department is concerned, the factual position stand recorded in the counter affidavit filed on behalf of the Respondents in W.P. Nos. 33344-45/2010. wherein in paragraphs 4 and 9, it is averred as under:

It is true that Sy. No. 22 of Kaehenahalli Village, Nagamangala Taluk measures an area of 301.33 acres, out of which, an area of 256.19 acres has been transferred in favour of Forest Department for developing aforestation/plantation by way of an Order dated 04.03.1982. However, an area of 45.14 acres continued to remain with the Revenue Department, which is encircled by forest plantation on all sides over the period of time.

The contention of the writ Petitioner that quarrying lease was granted for an area of 13.20 acres out of 45.14 acres under the control of the Revenue Department which is nothing to do with the Forest department. The same is unsustainable in the eye of law, mainly for the reason that the surrounding area is encircled by Forest Plantation and any non-forestry activity therein would endanger the green cover, flora and fauna, as contained in the letter dated 28.10.2008 produced at. Annexure-E to the writ petition.

Based on the aforesaid factual position, there is no room for doubt in our mind, that land measuring 256.19 acres, out of the total of 301.33 acres, earlier comprised of in Sy. No. 22 came to be transferred to the Forest Department only for the purpose of afforestation.

The first contention advanced on behalf of the learned Counsel for the Petitioner is, that the action of the Respondents in cancelling the quarrying lease granted in favour of the Petitioner is wholly arbitrary. It is submitted, that 256.19 acres of land out of the total area of 301.33 acres having already been transferred to the Forest Department:, the purpose of afforestation must be deemed to have been full satisfied, and that, it was unjustified for the Respondents to use the remaining 45.14 acres of Revenue Land for the same purpose.

We have given our thoughtful consideration to the first contention advanced on behalf of the Petitioner. The purpose of afforestation, has also been recorded, as the basis for cancellation of the lease granted to the Petitioner, in the impugned order dated 22/24.12.2010 (relevant extract whereof, has been reproduced hereinabove). There is nothing wrong or unusual to use revenue land for afforestation. This conclusion of ours is very relevant in the present case, because the revenue land in question is encircled by the forest land, and in the opinion of the authorities, if the land in question is used for quarrying or any other non-forestry activity, it would endanger the green cover and the flora and fauna even of the forest area. In the aforesaid view of the matter, we are satisfied, that there is hardly any justification for interference, at our hands, insofar as the cancellation of the lease is concerned, based on the first contention advanced on behalf of the Petitioner.

The second contention advanced at the hands of the learned Counsel for the Petitioner, so as to assail the order dated 22/24.12.2010 (Annexure-L) was, that in addition to the factual position depicted In the extracted portion of the impugned order, other reasons mentioned for cancelling the lease granted to the Petitioner were:

(i) that the Petitioner had not paid the royalty amounting to Rs. 5,25,037/- for the year 2009-10,

(ii) that the Petitioner had not paid the environmental protection fee amounting to Rs. 4,59,000/-.

(iii) that the Petitioner violated certain statutory rules by not submitting three monthly reports contemplated under the Karnataka Minor Mineral Concession Rules, 1994.

It is the assertion at the hands of learned Counsel for the Petitioner, that as soon as the controversy in respect of the ownership of the land arose between the Forest Department and Revenue Department, the Petitioner has been prevented from carrying out any quarrying activity, and as such, the action of the Respondents in the impugned order dated 22/24.12.2010 whereby, a claim of Rs. 5,25,037/- had been raised on account of royalty, and a claim of Rs. 4.59,000/- has been made on account of environmental protection fee is, wholly uncalled for.

With reference to the second contention advanced at the hands of the learned Counsel for the Petitioner, learned Counsel for the Respondents acknowledges, that on account of the dispute between the Revenue Department, as also, the Forest Department, the Petitioner was not permitted to carry out quarrying activity for the period referred to in the impugned order, and as such, the reference made to arrears of royalty charges, as also, the arrears of environmental protection fee, in the impugned order dated 22/24.12.2010 will not be given effect to.

In view of the above, the second contention advanced at the hands of the learned Counsel for the Petitioner deserves to be accepted. The same is accordingly accepted. The depiction in the impugned order, that the Petitioner was guilty of not paying royalty charges during the period 2009-10 for a sum of Rs. 5,25,037/-, as also, for not having paid the environmental protection fee to the tune of Rs. 4,59.000/-is hereby set aside. The aforesaid amounts shall therefore not be recoverable from the Petitioners.

Disposed of in the aforesaid terms.