TMI Blog2010 (2) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... 009, 20.11.2009 and the letter of Sri M.K. Jiwarajka, Member Central Empowered Committee, dated 23.11.2009. 2. The case of the writ petitioner reads as follows: The petitioner-company is engaged in the business of mining iron ore pursuant to the validly executed and registered leases in District Anantapur, State of A.P. The petitioner is having three leases over an extent of (1) 25.98 Hectares in Obulapuram Forest Compartment No.695 (2) 39.5 Hectares in Obulapuram Forest Compartment No.695 and (3) 68.5 Hectares in Malpangudi Forest Compartment No.697 and 698. The petitioner-company has the approval for production of four million tons of iron ore per annum from lease No.1; 1 million ton of iron ore per annum from Lease No.2, and 1.2 million tons of iron ore per annum from Lease No.3. Further, it is having all the statutory clearances including the clearance under Section 2 of the Forest (Conservation) Act, the clearance under Environment (Protection) Act and the clearance under Pollution (Control) Act and it had made all necessary applications for grant of necessary clearance under the Pollution (Control) Act and the authorities accorded necessary permissions under the said Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abeyance. Then, BIOP filed independent writ petition along with S.K. Modi, its Managing Director, in W.P.No.201 of 2009 before the Supreme Court of India, under Article 32 of the Constitution of India seeking a direction to complete the survey in a time bound manner pursuant to the letter of MOEF dated 22.4.2009 through Survey of India. The said writ petition was disposed of on 1.5.2009 by recording the concessional statement made by the Counsel for MOEF agreeing to complete survey within six weeks. 4. Feeling aggrieved by the said order, the petitioner filed an application before the Supreme Court seeking clarification as well as for impleadment. On 23.7.2009, the learned Attorney General gave an oral assurance that the survey of India shall not proceed with survey operations until further orders. On 24.8.2009, one T. Ganesh filed an application, being I.A.No.2 of 2009 in W.P.No.201 of 2009 seeking to implead CEC and himself as party respondent. On that, the Supreme Court was pleased to issue notice. So far no further orders have been passed. The applicant viz., T. Ganesh was set up and financed by BIOP and that the father of the applicant filed WPNo.30880 of 2008 and brother o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, encroachments, working of the wood based Industries, working plans, compensatory afforestation, plantations, regeneration, illegal felling and transportation of timber, illegal mining in forest area, and any other conservation issue; and (b) the implementation of the Indian Forest Act, 1927, Wild Life (Protection) Act, 1972, Forest (Conservation) Act, 1980, Environment (Protection) Act, 1986 and the National Forest Policy, 1988 including the Rules, Regulations and Guidelines framed thereunder; in respect of which the Supreme Court has passed orders in W.P.Nos.202/95 and 171/96. (iii) On a plain reading of the said two notifications, it is apparent that the committee has been appointed to assist the Supreme Court and to consider applications filed by any person concerning the issues on which orders have been passed by the Supreme Court of India in W.P.Nos.202 of 1995 and 171 of 1996. (iv) Admittedly, the present proceedings do not arise out of the said two writ petitions nor do they pertain to the issues on which the Court passed any orders in the above-referred two writ petitions. The Supreme Court never referred W.P.No.202 of 2009 to Forest Bench. The present disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 which is incorrect. It can be seen from the proceedings of the Court dated 24.8.2009 that this Court was pleased only to issue the notice in I.A.No.2/2009 which was filed seeking impleadment of the Central Empowered Committee. This Court never directed the Central Empowered Committee to enquire into the matter or to submit any report thereto. In fact, after 24.8.2009 the matter was not listed before the Court and the applicant has not yet filed its counter affidavit to the said I.A.No.2/2009 and no arguments were advanced on the issue of impleadment of Central Empowered Committee in this boundary dispute matter between two private companies. (iii) The Central Empowered Committee having issued the notice of hearing asking the officials of the Government of A.P., as well as Counsel for the applicant in I.A.No.2 of 2009 ought to have issued the notice to M/s Obulapuram Mining Company, the petitioner herein. The proceedings dated 5.10.2009 of CEC are without Notice and behind the back of the petitioner. No opportunity of being heard has been given to the present applicant by following the principles of natural justice. The Central Empowered Committee has not even followed the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of preparation of the common sketch depicting all the five leases. (ix) The lease areas of five user agencies were granted at different points of time and were renewed at different points of time by drawing independent lease sketches to each of the lessee without reference to the lease boundaries of the adjoining lessees. This was done long time back i.e., few decades ago. There was no requirement under MMDR Act to have a combined sketch duly depicting the leases of the neighbouring lessees and all four sides. Accordingly, independent lease sketches were drawn and the lessees were enjoying their areas. (x) The common boundary mining agreement among the lessees and the approval for the same by the competent authority demolish the allegation that there existed an unallotted area among the lessees. (xi) The Forest (Conservation) Act, 1980 does not deal with any individual complaints or any individuals or lessees or any violations by any user agency. The Forest (Conservation) Act, 1980 mandates that no State without the prior approval of the Central Government pass any order diverting any forest land for non forest purposes. (xii) This does not cover the cases or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of W.P.No.202/2009 itself was to fix a time frame for the survey to be conducted through Survey of India. The petitioner filed I.A.No.1 of 2009 opposing the said prayer in view of the complicity between BIOP and the Survey of India. The CEC has not considered any of the material placed before this Court nor considered the binding judgments dated 15.12.2008, 17.9.2009 between the parties of A.P. High Court wherein the prayer for survey through Survey of India was not acceded to in view of the objections raised by the applicant. Besides the report of CEC insofar it relates to survey is violative of the oral order and oral undertaking by the Learned Attorney General dated 23.7.2009 before the Supreme Court. No time frame has been fixed for the said survey and the mining operation in all mining lease areas are required to be stopped without any justification. 10. It is further stated that there are thousands of employees directly/indirectly employed with the applicant in its activities on a daily basis. Sudden and abrupt suspension of its operation both mining and transporting of the iron ore would cause great irreparable loss to all those dependant on the applicants mining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puram villages was relaid by the A.P. State High Level Committee at the instance of BIOP and the entire record from part of W.P.No.645 of 2008 and W.A.No.1540 of 2008 in which the Division Bench of this Court was pleased to consider the same and against which, BIOP has not filed any SLP. Therefore, the State Government having got conducted the survey for about three months by the State High Level Committee with latest survey equipments and experts in survey, cannot rely upon the inspection report of the Three-Member Committee in which there is no expert in survey to which survey and land records or Mines and Geology Department are not parties. 16. Being the lessee, the petitioner-company was not informed of about the constitution of three member committee, the scope and the purpose for which the committee desire to inspect and deal with and finally even the purported report of the Three Member Committee has not seen the light of the day till date. The action of the Government A.P., in stopping the transportation from the stock yard of the petitioner company situated Obulapuram village is illegal. ADDITIONAL AFFIDAVIT 17. The facts stated in the additional affidavit in brie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y prohibition of work at the instance of the State Government shall be after giving the parties an opportunity to represent their views and with the approval of the Central Government and that even the prohibition, as contemplated under Rule 50 of the Mineral Concession Rules, is limited only for mining and in no event the State Government can prohibit the lessee who paid the royalty and obtained the geological permits. The impugned G.O.Rt.No.723, dated 25.11.2009 suffers from lack of application of mind by the State Government and in view of the judgment of the Supreme Court in Mohinder Sing Gill s case, the State Government cannot supplement the reasons or attempt to improve their case with supplement reasons at this stage. The petitionercompany is being subjected to grave hardship and irreparable injury and that the operations of the entire Industry were suspended arbitrarily. 20. Respondents 1 and 2 filed a counter-affidavit inter alia denying all the averments made by the petitioner and contending as follows: The Government of A.P. granted the Mining leases in Obulapuram, H. Siddapuram and Malapanagudi village of Anantapur District and they are partly covered in the Bell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsporting the mineral from mining lease areas on either side of the two States of A.P. and Karnataka without prior permission from the Government of India. (d) Shifting of boundary pillars which resulted in increasing their mining lease areas. (e) Fixing of temporary pole pillars with flags. (f)Using Forest area for dumping without permission from Government of India. (g) Excess transportation of iron ore without there being corresponding and proper mining pits in the leased areas, thereby leading to a doubt as to the origin of the mineral that was stated to have been dispatched. (h) Non-implementation of reclamation plan for prevention and control of soil erosion and management of silt. (i)Non-compilation of Environmental conditions stipulated by Government of India. 21. While so, the Central Empowered Committee constituted by the Supreme Court in W.P.(Civil) No.202/95 and 171/96, vide letter dated 23.11.2009, while forwarding a copy of its report to the Supreme Court, advised the State Government to take immediate steps to stop mining operations including transportation of already mined mineral from all the six mines dealt in the CEC report. After considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and rules made there under. Section 4(1A): No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made there under. Section 21 deals with the penalties to be imposed on whoever contravenes the provisions of Sub-section 1 or Sub section 1 A of Section 4 and other parameters like raising of mineral without any lawful authority etc., and the imposition of penalties thereof. Thus, it can be seen that for any person to undertake mining operations, the same can be undertaken only under a valid lease that is granted by the State. Whenever any mineral is extracted or transported without such a lease or even outside the area of lease that has been granted would be clearly illegal and in violation of Section 4 of the Act, which is liable to be met with penalties as stipulated in Section 21. 25. In view of the above provisions and Rule 27(1)(2) (5) of Mineral Concession Rules, 1960, the State Government has powers to prohibit or cancel the leases if there are any violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and also in fact between one state and another. One of the irregularities is that there are no corresponding pits in the leased areas to match the extent of mineral that has already been dispatched. In such a situation, there cannot be any clarity as to the source of mineral. For all the practical purposes, the mineral could have been extracted from areas outside the leased areas where the state is yet to grant any lease in favour of any party. The mineral could have been from anyone of the mines and from the mines falling in the State of Karnataka or the reserved forest areas, for which there is no lease or permission. In such a situation, it is only appropriate that the mineral that is available is first preserved or protected before coming to conclusion as to, to whom it belongs. Iron ore is not a perishable commodity. The impugned order would only ensure that source is verified even before it can be concluded whether the valuables are legitimate or otherwise. 27. Insofar as the aspect of jurisdiction over the stockyard is concerned, it is stated in the counter that as per the definition of mine as defined under the Mines Act, 1952, it is evident that the stockyard wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a maximum quantity of 7 million tones of iron ore p.a., fro the three mining leases of OMC and one Mining Lease of AMC, as per the records. 30. The petitioner has not transported any iron ore to M/s. Brahmini Industries Limited, which is under construction. The petitioner is only exporting and selling the mineral to the other industries so far. Under the guise of promoting a huge steel project of Brahmini Industries Limited, the petitioner cannot be allowed to resort to illegal mining, encroachment into the forest areas, disturbing the mining lease boundaries in the Forest area by violating pollution norms. 31. The BIOP filed WA No.1540 of 2008 before this Court and this Court disposed of the same on 15.12.2008by observing that it is a boundary dispute, which has to be raised before the appropriate Civil Court. This Court had observed in its judgment that since it is open cast mining and inasmuch as the land belongs to the State List, particularly falls under the jurisdiction of Forest Department of the State, it is that particular Department and the State Government, who have to take a lead role to resolve the dispute to the extent possible, of course, with the aid of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs of the encroachments, shifting of boundaries etc., as observed by the Forest Committee as well and that the suspension of mining operations is not only restricted to the petitioners-company but has been made applicable to all the mining leases in the forest area of Obulapuram. Based on the several allegations on the illegal mining and transportation of iron ore from the mining leases in the sector, the Government has constituted the committed and the G.O., was kept in A.P. Govt. web site. The copy of the report was not supplied to the petitioner as interim/temporary action was initiated under the impugned order and while initiating further action, the same will be supplied along with the show cause notice. As the lease holders have violated the M.C. rules and the lease deed conditions and encroached into the Forest and adjacent lease hold areas and exploited the mineral, it was felt justifiable to stop mining operations including transportation from stockyards also as the source of iron ore to stock yards is from these mines. 35. The source of iron ore for stock yard of the petitioner is from three mining leases and AMC and Y. Mahabaleshwarappa and sons which all are located ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operations during the first renewal lease period commencing from 27.1.1971. 40. While so, the Divisional Forest Officer, Anantapur issued a notice dated 30.10.2009 for stoppage of operations on the ground that the petitioner-firm does not possess the valid consent from the Pollution Control Board. The petitioner gave reply. The petitionercompany commenced the mining operations after obtaining necessary clearance from the Pollution Control Board and continuing the mining operations as per the norms of the Pollution Control Board. 41. While so, the Government of A.P., issued the impugned G.O., stating that the Principal Chief Conservator of Forests has constituted a Three Member Committee and submitted its report on 20.11.2009, which revealed certain inconsistencies on the location of inter village boundary between Obulapuram and H. Siddapuram villages undertaken by State High Level Committee under the Chairmanship of Chief Conservator of Forests, Ananthapur. Further, the CEC advised to the Supreme Court to take immediate steps to stop mining operations, including the transportation of already mined material in respect of six mines dealt with in Central Empowered Committee s r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quipments and experts in survey, cannot rely upon the inspection report of the Three-Member Committee in which there is no expert in survey to which survey and land records or Mines and Geology Department are not parties. 46. Being the lessee, the petitioner-company was not informed of about the constitution of three member committee, the scope and the purpose for which the committee desire to inspect and deal with and finally even the purported report of the Three Member Committee has not seen the light of the day till date. The action of the Government A.P., in stopping the transportation from the stock yard of the petitioner company situated Obulapuram village is illegal, as the petitioner has already paid royalty for the material mined, sold out the material to some parties. The ore does not belong to petitioner company. There is absolutely no justification to stop the sold material from transportation not fro the mines but from the stockyard. 47. The respondents 1 and 2 filed a memo adopting the counteraffidavit filed in W.P.No.26083 of 2009. SUBMISSIONS: 48. It is contended by learned senior counsel that nearly 8 committees have been appointed by the Government fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010, but, the apex Court directed the parties to appear before the High Court on 18- 1-2010 observing that the High Court to dispose of the matters as early as possible. It is also contended that the apex Court also observed that the High Court shall also hear the C.E.C., who is made as one of the respondents in the proceedings and that the facts stated by the C.E.C. may be considered on merits by the High Court. With the above observations, the Supreme Court disposed of the SLP No.1301/2010 and 1379/2010. 50. It is also contended that one of the conditions imposed in the interim order of the High Court is that the State Government shall be free to identify, demarcate and fix the boundaries of the leased areas after giving notices to the applicants, and it is also observed by the Supreme Court in its order that it may be done by the State Government and the interim stay ordered by it will continue, except as regards this condition, till the High Court passes a final order. 51. In view of the orders dated 14-1-2010 passed by the Apex Court that the matter be disposed of within a period of four weeks, these matters are listed before this Division Bench for final hearing. 52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in four weeks. It is contended that a reference has also been made to the judgment of the Division Bench of this Court in Writ Appeal No. 1540 of 2008 WP No. 645 of 2008 dated 15-12-2008. The apex Court disposed of W.P.(Civil) No. 201 of 2009 observing that learned counsel appearing for the MOEF submits that the survey will be conducted within a period of six weeks. Then I A No.1 was filed in the said petition by the petitioner herein before the Supreme Court for recalling the order passed in the above writ petition and that was directed to be listed on 23-7-2009 and again it was adjourned to 24-8- 2009. When the matter came up on 24-8-2009 the Supreme Court has ordered a notice in IA No.2 of 2009 that was filed by one Tapal Ganesh who is not a party in the main writ petition making the Chairman, the Central Empowered Committee as proposed respondent with different prayers as show in the writ petition and the Supreme Court has only issued notice which is filed for clarification of the order dated 1-5-2009. 55. Learned counsel has further contended that as the Committee has not even come on record as proposed respondent the committee s report cannot bind the State Government to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablished a large industry and obtained the orders of export, the sudden suspension of mining operation, without any opportunity of being heard, would amount to infringement of right to trade and business as provided under Article 19(1)(g) of the Constitution of India. It is also argued that the findings of the committees is beyond the judgment of the Division Bench findings in W.A. No. 1540 of 2008 as it was observed by the Division Bench that the matter involves purely questions of fact which has to be verified after giving an opportunity to the affected persons. Learned counsel also contended that the report of the CEC which recommended for suspension of the operations is not based on any actual fact finding for the reason that the Committee never visited the disputed site and that though it has given a notice to the State Government and others but failed to give any notice to the affected parties which itself would go to show that the Committee has acted in violation of principles of natural justice and such findings do not bind the State to pass impugned orders. 57. Learned counsel also submitted that the Three-member committee has not found any illegality in the mining of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issuance of GO without giving any notice to the party is violation of principles of natural justice. Except the report submitted by the C.E.C., there was no other material available to the State Government to come to the conclusion that there is any illegal mining operations or any boundary dispute to pass the impugned order and hence the same is liable to be set aside. 59. Learned Senior Counsel Sri P S Narsimha has submitted that, Article 246 read with Schedule 7, List-I, as per entry-54, the Union Government has power to enact the laws relating to the mines and mineral and that so far as the State is concerned, Entry 23 in the list, deals with them. He also submitted that the power of granting of licence is with Central Government and termination also lies with the Central Government. Learned counsel also referred to Section 2 of the Act to support his contention under which the Union took the control with regard to regulation of mines and the development of minerals to the extent provided thereunder. Learned Senior Counsel Mr. Narsimha argued that the CEC failed in issuing notice to the affected party i.e., the petitioner herein and that there was no site visit conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit of the C.E.C report has to be gone on its own merits as directed by the Supreme Court. The C.E.C has advised the State Government to stop the mining operations as it found some illegal mining operations beyond the fields allotted to the parties and State has got power to stop the mining operations if it finds any irregularities. Learned Advocate General argued that the State can exercise inherent power to issue G.O in view of wild allegations and also in view of the reports that illegal mining activities are going on in the disputed site by the petitioners and therefore the power of the Government cannot be find fault. 61. Learned counsel Sri A.D.N Rao, appearing on behalf of the Central Empowering Committee has argued that in number of cases the Supreme Court has accepted the reports submitted by C.E.C and when notice was ordered in IA No. 2/2009 papers were transmitted to C.E.C and the Committee is not precluded from filing its report and therefore it opined that it has to submit its report and accordingly the Committee has acted upon to find out whether there is any illegal mining operations by superimposing the maps supplied by the State Government. He fairly submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-3-2008 final survey report of the A.P. State High Level Committee was accepted by the Government of Andhra Pradesh which was also the subject matter in Writ Petition No.645 of 2008 and also in W.A. No.1540 of 2008. The chronology of events which remained undisputed by the respondents as narrated in the affidavit would go to show that there was a final survey report of A.P. State High Level Committee dated 17-3-2008. On 18.2.2009 the Government of A.P., directed the Divisional Forest Officer, Ananthapur to fix the mining lease boundaries. The Chief Conservator of Forests confirmed that there are no violations under Forest (Conservation) Act, 1980 and all the leases are adequately demarcated on the ground. On 25.4.2009 the Secretary, Commerce and Industries Department of A.P., addressed a letter to the Ministry of Mines, Government of India stating that survey was conducted and leased area was adequately demarcated on the ground. The State Government also requested on 28-4-2009 the Central Government MOEF to revoke the suspension order passed on 22-4-2009. Accordingly the suspension orders were kept in abeyance. On 27-6- 2009 the Special Secretary, MOEF, Union of India reported tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01 G.O.Ms.No.152, Dt.2.12.1999 3 M/s.Obulapuram Mining Company Pvt.Ltd., Transferred vide G.O.Ms No.80 Dt.18-02-2002 G.O.Ms.No.73, Dt.28.7.07 4 M/s Ananthapur Mining Corporation G.O.Ms.No.172 Dated.10.7.06 G.O.Ms.No.82 Dated.24.10.03 5 M/s. Obulapuram Mining corporation Pvt. Limited G.O.Ms.No.151, Dt.18-6-2007 G.O.Ms No. 07 Dated 10.01.07 6 M/s. Obulapuram Mining Corporation Pvt. Limited G.O.Ms.No.152 Dated.18.6.2007 G.O.Ms.No.117, Dated. 7-10-2006 2. And whereas, pursuant to the directions of the Government, the Principal Chief Conservator of Forests, Andhra Pradesh, Hyderabad has constituted a three member committee vide reference1st read above to enquire into the allegations of illegal mining etc., in the above mining areas. The said Committee in it s report submitted on 20-11- 2009 has reported several inconsistencies in the location of the inter village boundary betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner companies and according to them when a question was raised in State Assembly, the representatives of political parties have also visited the site and found that there are no illegal mining operations. It is to be noticed that the State level committee (Three- Member committee) which was appointed on 20-11-2009 has reported several inconsistencies in the location of village boundary between Obulapuram and H. Siddapuram villages. The G.O. also reads that the CEC has submitted its report to the Supreme Court in IA 2/09 in Writ Petition No.201/09 and furnished a report to the State advising it to take immediate steps to stop mining operations including transportation of mined material in the six (6) mines dealt with in CEC report. The above G.O further reads that the mining operations are suspended including transportation of already mined material from the six mines mentioned at para-1 and respective stockyards at various places as per CEC report. Learned counsel has argued that none of the committees, either the State Level (Three-Member committee) Committee or the C.E.C has issued any notice to the petitioner company or afforded any opportunity to the petitioner ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Government Explanation:-xxxxxx From a reading of the above section, it is very clear that except with the previous approval from the Central Government, State Government shall not grant any reconnaissance permit, prospecting licence or mining lease and therefore the power of the State Government is very limited. 67. Further, Section 4A of the Act deals with the termination of such prospecting licences or mining leases. A reading of the section is as follows: 4 A . Termination of prospecting licences or mining leases.- (1) Where the Central Government, after consultation with the State Government is of opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution, or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for conservation of mineral resources or for maintaining safety in the mines or for such other purposes, as the Central Government may deem fit, it may request the State Government to make a premature termination of a prospecting licence or mining lease in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of the learned Advocate General that the State Government has got inherent power to suspend the mining operations and also in preventing the agencies from lifting the mined material from the stockyards by way of impugned G.O cannot find place and has no legal force for the reason that the Mines and Minerals (Development and Regulation)Act 1957 was promulgated by the Parliament in the public interest. 70. Even in case of cancellation of lease on seriously disputed on facts, the following cases supported the principle that the cancellation should not be exercised under Rule 27(5) of the Mineral Concession Rules, 1960, without giving opportunity of personal hearing to lessee and is violative of the principles of natural justice and cannot be sustained. When a cancellation of lease is to be exercised invoking the powers under Rule 27(5) of Mineral Concession Rules, 1960, it was held that without giving opportunity of hearing before cancellation was all the more necessary when joint inspection was seriously disputed and facts were in controversy. (See: RAM Vs. AVTAR SINGH AIR 1999 (Del. 96 (98,99) (DB), STATE OF HARYANA Vs. RAM KISHAN, (AIR 1988 S.C. 1301), ASSAM SILLIMANI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral that the State Government had inherent powers is beyond the scope of the provisions of the Statute. The further contention of the learned Advocate General that they would contemplate to issue a notice cannot be sustained for the reason that the ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively depending upon the facts of each situation. In this case, the petitioner was not given any opportunity of being heard before a decision was taken by the respondent authorities to stop the mining operations and also preventing the petitioners from lifting the stocks from the stockyards. In the absence of any inherent power vested with the State Government, issuance of the impugned G.O is against the principles of natural justice. Further, the impugned G.O did not spell out any reasons except stating that the Three member committee, in its report submitted on 20-11-2009, has reported several inconsistencies in the location of the inter village boundary and the balance of convenience li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder observed that In the impugned judgment the High Court has made certain observations regarding the CEC Report. We make it clear that both the parties are allowed to raise their contentions in respect of the report of the C.E.C. The pendency of any matter regarding this before this court need not preclude the High Court from considering the C.E.C report on merits. We also make it clear that this Court had not specifically directed the C.E.C to file its report as regards these leases. The High Court shall also hear the C.E.C who is made as one of the respondents in these proceedings. The facts stated by the C.E.C may be considered on merits by the High Court. 79. From the above, it is clear that the Supreme Court has not directed the C.E.C to file any report as regards these leases and it left open to the High court to hear on the report of C.E.C. It is the contention on behalf of C.E.C. that they have drawn the report by superimposition of the maps furnished by the State Government and they came to the conclusion that there was overlapping of the boundaries, but the material goes to show that the CEC has submitted it s report on 19-11-2009 recommending stopping of mining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Committee shall have the power to: (a) Call for any documents from any person or the Government of the Union or the State or any other official. (b) Summon any person and receive evidence from such person on oath either on affidavit or otherwise. (c) Seek assistance/presence of any persons(s)/ official(s) required by it in relation to its work. (6) The Committee may decide its own procedure for dealing with applications and other issues. Union of India shall provide suitable and adequate office accommodation for the Committee. The expenditure incurred on the working of the Committee including salary, remuneration o the extent not payable by the Government to the members and supporting staff, may be met out of income accruing to the Special Investigation Team (SIT). Necessary procedure for this may be formulated by the Committee in consultation with the SIT. (7) (8) xxx 81. The Supreme Court made certain guidelines for the C.E.C, in I.A.No. 2016 in W.P.(C) No. 202/95, which are as follows: Herd learned Solicitor General and learned A.C. They have been contemplating all formalities and terms and conditions. After discussing the learned Solicitor General and l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-6-2002; Sub- Clause (5) of Clause 3.0 of Notification says that the Committee shall have the power to (a) Call for any documents from any person or the Government of the Union or the State or any other official. (b) Summon any person and receive evidence from such person on oath either on affidavit or otherwise; (c) Seek assistance/presence of any persons(s)/ official(s) required by it in relation to its work. But in this case, the committee only relied upon by the material submitted by the Government and it never chosen to issue notice to the affected parties that is the petitioner herein and more so when there are so many disputed questions of fact with regard to overlapping of boundaries etc., the committee did not chose to visit the disputed site to know the real facts. In the absence of any such enquiry and more so in view of the observations made by the Hon ble Supreme Court that they never asked the C.E.C to submit any report, submitting a report even without giving any prior notice to the affected party, it is to be held that the C.E.C has not followed the principles of natural justice and also has not followed the procedure as contained in Cl.3.0(5) as stated above. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e records that no notice has been issued to petitioner who is the affected party before submitting its report. Here it is not out of place to mention that the C.E.C has issued a notice to the State of A.P., on 5-10-2009 and also to the Principal Chief Conservator of Forests, Hyderabad on 13-11-2009 seeking certain information. The Principal Chief Conservator of Forests furnished information on 17-11-2009. But the C.E.C submitted its report to the Supreme Court on 19.11.2009 i.e., within a span of one day. It is not known how the C.E.C prepared its report within a day. Further, the material on record would show that the Member of C.E.C addressed a letter to the Chief Secretary, Government of Andhra Pradesh in File No.2-21/CEC/SC/2008-PLD dated 23-11-2009 stating that a copy of the report has been provided to the standing counsel of the State of A.P., the Chief Secretary, Government of A.P., and the Principal Chief Conservator of Forests, A.P. Forest Department and also advised the Government to take immediate steps to stop the mining operations including transportation of already mined material, from all the six mines dealt with in the C.E.C s report. From the above letter it is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrying out mining operations, no hardship would be caused if the petitioner is permitted to carryout mining operations in the allotted mining area. 85 From the above discussion, the action of the State Government in not issuing any notice to the affected parties can be termed as violative of principles of natural justice as the leases in the present case are statutory leases in favour of the petitioners under the provisions of Mines and Mineral (Development and Regulation) Act 1957, which legislation is enacted by the Union Government in pursuance of entry 54 of Seventh Schedule. It is to be further observed that the State Government has no power what-so-ever in passing the impugned G.O Rt. No. 723, Industries Commerce (M-III) Department, dated 25.11.2009 as it is violative of principles of natural justice and therefore the said G.O. is liable to be set aside. 86 Further, in State of Orissa v., M A Tulloch and Co.[ AIR 1964 SC 1284] the Apex Court while dealing with the provisions of Mines and Minerals (Regulation and Development) Act, 1957 had observed : xxxxxx If Parliament by its law has declared that regulation and development of mines should in public interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Article 73 of the Constitution. Xxxxxxxxxxx 88. Admittedly, the Act 67 of 1957 falls within List-I of Entry 54 of Seventh Schedule which falls within the jurisdiction of the Central Government. The State Government has no power or authority to interfere with the matter except with the previous approval from the Central Government even to legislate on the subject which falls within the jurisdiction of Union Government. In the instant case, the impugned order was issued by the State Government without the approval of Central Government. No record is placed before this Court by the State Government to show that it has obtained prior approval with regard to the issuance of the impugned G.O. Therefore, the impugned G.O.Rt.No.723, Industries Commerce (M-III) Department, dated 25-11-2009 su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
