M/s Kanhaiyalal Dudheria vs. The State of Karnataka rep. Department of Forest, Ecology and Environment and Ors.

MANU/KA/0109/2009

Second Respondent registered First Information Report against Petitioner on ground of violation of conditions of lease agreement and for certain forest offences and  hence, this Writ Petition was filed. Whether, report of Lokayukta could be basis for impugned FIR and order of seizure. Held, exercise of administrative powers would stand vitiated if there was manifest error of record or exercise of power was arbitrary or such power had been exercised on non-consideration or non-application of mind to relevant factors or for non-compliance of principles of natural justice. However fact that Petitioner was not given an opportunity before initiating an action based on Lokayutka report or sketches enclosed to report by itself could not be ground to quash FIR and seizure order, as report of Lokayukta was presumed to be made based on materials that were to be substantiated by prosecution at appropriate stage. Hence it could not be proper to conclude that at prima facie stage, no case was made out. Once there was prima evidence to showed that Petitioner had encroached upon forest land and operating its activity outside limits of leased out area, Respondents have no option except to initiate criminal action against Petitioner by filing FIR and seize minerals mined outside leased oat area, which was forest produce, together with tools, machineries and vehicles used in commission of offence and also to confiscate same in appropriate proceedings. Thus Lokayukta report and satellite sketch relied on in Lokayukta report could be basis for filing impugned FIR and passing order of seizure – Writ Petition disposed of. Regarding Jurisdiction/Quashing of FIR according to Section 482 of Criminal Procedure Code, 1973 (Cr.P.C.). Whether, it was proper for High Court to exercise power of judicial review under Article 226 of Constitution of India to quash First Information Report. It was held, power of judicial review under Article 226 of Constitution of India was akin to inherent power conferred under Section 482 of Cr.P.C. It was settled law that even though inherent powers conferred on High Court were very wide, very plenitude of power requires great caution in its exercise. Courts must be very careful to see that its decision in exercise of such inherent power was based on sound principles, because inherent powers conferred on High Court had to be sparingly exercised to give effect to an order under Code, to prevent abuse of process of Court; and to otherwise secure ends of justice, but in any event not to encourage violations of provisions of any statutes in force much any conditions of agreement thereunder which empowers competent authority to take appropriate action against law breakers and those who violate conditions of agreement. In any event, powers should not be exercised to stifle legitimate prosecution, Therefore Courts should refrain from giving prima-facie decision in case where entire facts were incomplete and hazi, more so, when evidence had not been collected and produced before Court. When evidence was yet to be collected and produced before Court and Respondents were prepared to substantiate illegal mining operation by Petitioner, it could not be proper for High Court to use inherent power to stifle legitimate prosecution nor to give prima-facie decision hastily. Hence, it might not be proper for High Court to quash F.I.R. at this stage. Thus prayer to quash FIR was rejected. Writ Petition disposed of.

According to Criminal Illegal mining operation Section 2 of Forest (Conservation) Act, 1980 (FC Act). Whether, Second Respondent was empowered to seize machinery, equipment, iron ore and vehicles belonging to Petitioner, by an order for having committed illegal mining operation in forest area. Held, Parliament enacted FC Act in order to prevent deforestation which causes ecological imbalance and leads to environmental deterioration. After FC Act came into force, no mining lease/licence could be granted in forest area without prior approval of Central Government, which was condition precedent, because Section 2 of FC Act starts with non-obstante clause. Therefore, no non-forest activity could be carried on in forest area, except with prior approval of Central Government, which means, even State Government could not carry on any such non-forest activity in forest area without prior approval of Central Government. Mining lease was granted only subject to approval of Central Government and agreement entered with State Government. Respondents/forest authorities have every right to initiate action against persons who violate terms of lease and conditions of lease agreement and KF Act, also empowers Respondents authorities to seize, confiscate and forfeit forest produce, tools, vehicles and machineries that were used for illegal removal of forest produce – Such an exercise of power, could not be termed as arbitrary or unreasonable. Thus Deputy Conservator of Forests/Fourth Respondent, should inspect and survey area leased out to Petitioner, in presence of Petitioner, and take appropriate decision as to alleged encroachment by Petitioner with reference to survey records and other relevant material available and documents produced in this regard. Writ Petition was disposed of. Violations of conditions of lease agreement according to Section 2 of Forest (Conservation) Act, 1980 (FC Act ), Whether, authorities of Forest Department were empowered to take action against violations of conditions of lease agreement. Held, raining lease granted to Petitioner in forest area was subject to conditions imposed by Central Government and State Government while exercising power conferred under Section 2 of FC Act. While exercising power conferred under Section 2 of Forest (Conservation) Act, an agreement was entered into between Petitioner and 4th Respondent, wherein Petitioner-company have specifically agreed to comply with conditions incorporated in said agreement. Had agreement not been executed, mining lease itself would not have been granted to Petitioner. Under Condition No. 23 of said agreement, Petitioner had also agreed that Fourth Respondent had power to suspend mining licence, if conditions agreed to by Petitioner while executing agreement were violated. Therefore, Fourth Respondent was empowered to suspend licence, if conditions agreed to by Petitioner/lessee were violated. Thus Respondents were directed to return tools, vehicles and machinery to Petitioner on condition that same should be produced before Respondents/ jurisdictional Magistrate as and when required by law, subject to finding in inspection to be conducted by Fourth Respondent in presence of Petitioner. Writ Petition disposed of.