TMI Blog2008 (2) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... Dantewada, District South Bastar Dantewada, Chattisgarh in favour of M/s. Tata Iron and Steel Company Ltd., the third Respondent, for 2 years by invoking provisions of Section 11(5) of the MMDR Act, through letter dated 14th February 2007. 2. The Petitioner, the National Mineral Development Corporation, is a Government of India owned Public Sector enterprise engaged in mining operations throughout India. On 25 th April 1991, it applied for prospecting license (hereafter referred to as PL ) for Iron ore in Bailadila Deposit No.1 in Form B over an area of 1130 hectares (ha) in the area reserved for public sector undertakings, Bailadila range in Bastar District, Madhya Pradesh (now Dantewada District, Chattisgarh). The State Government of Madhya Pradesh had not notified the area in the Gazette for prospecting and mining and it is averred that there were no other previous applications for Deposit No.1 filed earlier to that lodged by the petitioner. In June 2002 the Petitioner submitted an application for permission to undertake mineral exploration on payment of necessary fees; inspection was carried out in February 2003. The Chief Conservator of Forests and survey, Chattisgarh fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position under Rule 14(3) of the Mineral Concession Rules, 1960 in the above-mentioned prospecting license is not agreed to because imposition of such restrictive condition may not be in the interest of mineral development. 3. Before allowing grant of prospecting license, the State Government may kindly ensure the compliance of the amended provisions of the Act and Rules, and other applicable Acts and Rules including Forest (Conservation) Act, 1980 and environmental notification dated 27.01.1994 as issued and amended by Ministry of Environment and Forests. 5. The Petitioner alleges that the issuance of the impugned order was kept secret, and under wraps until it applied for a copy of the same under the Right to Information Act, 2005 on 15th May 2007 and the same was furnished only on 28th May 2007. Thereafter, the Petitioner filed an application before Committee on Disputes for grant of clearance to challenge the impugned order, which was given on 31st July 2007 and communicated to it on 21st August 2007. 6. The Petitioner alleges that the impugned order gives away the state largesse in a highly arbitrary manner and contrary to statutory procedures, which is a clear vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approval of the Central Government. Apart from this, he urged that a further mandatory prerequisite is that before the actual or proposed grant or an order of approval/direction for grant of a PL, there must be prior approval of the Central Government under Section 2 of the Forest Act. The approval under the proviso to Section 5 must be preceded by the approval of the Central government under Section 2 of the 1980 Act. Consequently, the approval for grant of a PL is without jurisdiction in the absence of prior approval under Section 2 of the 1980 Act. 9. The learned counsel further submitted that the impugned order grants approval for a licence, which is in breach of Section 2 (iii) of the Forest Act. Relying on the affidavit of the Respondents, he submitted that the impugned order has been construed as an approval for grant of prospecting licence . Furthermore, he submitted that the impugned order amounts to a direction that any forestland or any portion thereof may be used for any non-forest purpose. He submitted that the expression other authority in Section 2 would cover any department of the Central Government, and would also include the Ministry of Mines, Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the occasion to comply with the requirements of Section 2 of the Forest Act arose only after impugned order. The respondents also object to maintainability of the present writ Petition as being an abuse of the judicial process. It is alleged that the Petitioner has sought the quashing of the order by the State Government, recommending grant of PL made in November, 2006. The pendency of that Petition has not been disclosed. 12. Mr. Arun Jaitley, Senior counsel appearing on behalf of the third Respondent submitted that the order of the Central Government can be invalidated only if there is clear proof of infringement of statutory law of mandatory character, which in the present case, according to the petitioner is occasioned by noncompliance of Section 2 of the Forest Act, which mandates that no order directing use of forest land for non-forest purposes should be granted without the prior approval of the Central Government. He urges that the order permitting forest land be put to non-forest use is yet to be given by the State Government while granting the prospecting license. He contends that it cannot be argued that the approval of the Central Government under the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion under the Forest Act is required for prospecting operations carried out under the MMDR Act, and therefore, he submits that approval under the Forest Act is required only when the license is granted under the MMDR Act. He also relied on the judgment of the Andhra Pradesh High Court in Hyderabad Abrasives and Minerals v. Government of A.P , AIR 1990 AP 257, where the Court held as follows: What is material for the purpose of the Forest Conservation Act, 1980 is not the date on which the lease is granted but the date on which the State Government or other authority permits the breaking up, or the clearing of the forest land, or any portion thereof. 15. Before entering the discussion on merits, it would be not inappropriate to deal with some of the concerns raised by the Respondents in the course of their arguments, as to the maintainability of the present writ petition. The Petitioner had preferred a revision against the 10th November 2006 order of the state, recommending the grant of PL to the third Respondent, before the Mines Tribunal which is still pending. The Petitioner also filed a petition (CW No. 2127/2007) in the Chhattisgarh High Court on 17th March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cure necessary approval of the Committee of Secretaries (of the Union) to challenge the impugned order. The application was made on 11-5-2007 on the basis of a copy of the order; it was granted on 20th August 2007. The present writ petition was thereafter preferred. These facts (brought out in the petitioner s affidavit dated 21-11-2007) have not been disputed. 18. Speaking of exercise of discretion in refusing to entertain a writ petition on the ground of a litigant availing an alternative remedy and not disclosing those facts, the Supreme Court, in SJS Business Enterprises vs- State of Bihar AIR 2004 SC 2421 held that though existence of or even availing an alternative or parallel remedy may be a factor, the not the predominating one, while exercising discretion to entertain a writ petition. Here, the parallel proceeding concerned is the Chhattisgarh writ petition. In that, the writ petitioner sought quashing of the state government s recommendation and also for a direction to the revisional authority to hear and dispose of its revision. At that stage, the petitioner was in the dark about the existence of the order dated 14-2-2007. The circumstances whereby it gained know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ventions in the federal judicial system. 20. In Hartford Fire Ins. Co. v. Cal., 509 U.S. 764, it was observed that the comity of courts refers to a situation where judges decline to exercise jurisdiction over matters more appropriately adjudged elsewhere. In Parsi v. Davidson: 405 U.S. 34, it was observed that under accepted principles of comity, a court should stay its hand only if the relief the petitioner seeks would also be available to him with reasonable promptness and certainty through the alternative machinery. This court would have to undoubtedly keep these principles in mind in the present case. The issue therefore is whether it can be said that this court should decline to exercise jurisdiction in respect of the subject matter of this petition because it can be more appropriately be adjudicated at Raipur. The order of the Central Government impugned in this Petition no doubt confirms the recommendation of the State Government, yet, the scope and discretion of the Central Government under provisions of the MMDR Act are equally circumscribed by other provisions of law. Moreover, it does not act invariably as a confirming authority; the Union Government has to independ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out. Section 17-A empowers the Central Government, with a view to conserving any mineral and after consultation with the State Government, reserve any area not already held under any prospecting licence or mining lease, by notifying the area in the Official Gazette. Section 18 of the Act obligates the Central Government to take all steps necessary for the systematic development and conservation of minerals. This provision was amended in 1988; the other consideration which the Union has to keep in mind, while discharging its duties, while taking such steps is protection of environment by preventing or controlling any pollution which may be caused by mining or prospecting operations. 23. Rules 9 and 11 of the Mineral Concession Rules, 1960 (hereafter the Concession Rules ) deal with the procedure and documents required for applications to secure prospecting license, and its renewal. Rule 14 provides for the conditions which each prospecting license has to contain. Rule 15 states, initer alia, that where an order has been made for the grant of a prospecting licence, a deed granting such licence shall be executed within ninety days of the date of the communication of the order. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Government. - (1) The Central Government shall refer every proposal, complete in all respects, received by it under sub-rule (3) of rule 6 including site inspection report, wherever required, to the Committee for its advice thereon. (2) The Committee shall have due regard to all or any of the following matters while tendering its advice on the proposals referred to it under sub-rule (1), namely: - [a]. Whether the forests land proposed to be used for non-forest purpose forms part of a nature reserve, national park wildlife sanctuary, biosphere reserve or forms part of the habitat or any endangered or threatened species offlora and fauna or of an area lying in severely eroded catchment [b]. Whether the use of any forest land is for agricultural purposes or for the rehabilitation of persons displaced from their residences by reason of any river valley or hydro-electric project; [c]. Whether the State Government or the other authority has certified that ithas considered all other alternatives and that no other alternatives in the circumstances are feasible and that the required area is the minimum needed for the purpose; and [d]. Whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forest land for non-forest purposes. Ordinance also provided for the constitution of an advisory Committee to advise the Central Government with regard to grant of such approval. 29. Although the Forest Act was brought into force when the collective human consciousness was yet to evolve standards of environmental ethics for people and nations, it was remarkably prescient in the mode chosen for conservation. Though it did not define or rely on any concept, its provisions seem to approximate what has now been widely accepted as the precautionary principle in environmental law. The principle was described in A.P. Pollution Control Board Vs. Prof. M.V. Nayadu 1999 (2) SCC718, as follows: 34. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (Justified) concern or risk potential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rprlay between the Forest Act, Rules framed under it and the Mineral Concession Rules, that: So far as the effect of Rule 24-B of the Concession Rules is concerned, it is to be noted that Section 2(ii) of the Conservation Act rules out non-forest activities. The section begins with a non-obstante clause providing that notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government any order of the nature enumerated in the provision. Section 3 of the Conservation Act deals with constitution of an Advisory Committee and Section 4 deals with the power to make rules. Rules 4, 5 and 6 of the Forest Conservation Rules, 1981 (in short the Conservation Rules ) are relevant. Rule 4 deals with the procedure to make proposal by a State Government or their authority. Rule 5 deals with the powers of the Committee to advise on proposals received by the Central Government. The Committee referred to therein is the one constituted under Section 3 of the Act. Rule 6 deals with action of the Central Government on the advice of the Committee. Admittedly, the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) into a surplusage, making it a post approval . The court held that the special condition imposed of having to obtain approval under the Forest Act as a pretended one . Such conditions were held to be attempts to short circuit the mandate of Section 2; the order was declared as an abuse of power. 34. Counsel for the third respondent in their submission perhaps had the contextual setting of a quarrying grant in Golden Granites, and were also apparently inspired by the decision in Hyderabad Abrasives and Minerals (supra). The construction favored by the Andhra Pradesh High Court, in that case, was that Section 2 of the Forest Act operates not on the date on which the lease is granted but the date on which the State Government or other authority permits the breaking up, or the clearing of the forest land, or any portion of it. Such a construction seems reasonable, even practicable. Yet it ignores the inexorable mandate of the Forest Act, and injects an air of insidious inevitability about the nature of approval. The injunction under Section 2 of the Forest Act is against any order permitting use of a forest for non-purpose. Clearly, mining or prospecting for mines, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n against non-forest activity without previous approval, was not to subsume or subordinate that injunction to the individual considerations of those laws and legislative purposes. It was clearly to override it and enact the obligation of a prior approval. This intent has been discerned in all judgments of the Supreme Court on the Forest Act. Therefore, the only way of giving effect to Section 2 would be to hold that whenever the State (and after the State, the Central Government, as a superior authority in the hierarchy of statutory basis as in this case) is asked to divert any forest land for a non-forest purpose, it has to, before taking other steps, seek prior approval under the Forest Act, and Rules. The rules cast an obligation to decide such application within 60 days. This interpretation furthers the objects of the Forest Act; it also compels the state not to take any step towards, including granting or even recommending other statutory clearances or approvals, concerning diversion of forest lands, till the approval under Section 2 is granted. The State, being aware of the nature of resources and extent of its forests, would also be spared the effort of having to consider pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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