J. Ravindranath J. Suryamarayama vs State Of Maharashtra
2004 Latest Caselaw 550 Bom

JUDGMENT

A.H. Joshi, J.

1. Rule. Heard with consent of parties.

2. The present applications are filed by the applicants in the background that the learned 2nd Additional Sessions Judge, Chandrapur has rejected two applications filed by them under Section 438 of the Code of Criminal Procedure, by common order dated 31-3-2004.

3. The Range Forest Officer (Protection), Chandrapur has registered an offence punishable under Section 26(l)(g) of the Indian Forest Act against the present applicants being POR No. 1371/22 dated 14th March, 2004. The applicants herein apprehend arrest and, therefore, had moved the Sessions Court and now this Court.

4. Brief background on which there is no serious controversy can be narrated as follows :

(a) 172.54 hectare of forest land has been acquired under the Coal Bearing Areas (Acquisition and Development) Act, 1957. The Western Coalfields Limited runs collieries commonly known as Durgapur Rayatwari Colliery within said land.

(b) The Western Coalfields Limited had applied for, and was granted mining permission and lease for two years with effect from 7-2-2002 till 1-1-2004.

(c) Application for extension of lease was submitted by WCL on 19-11-2002 which is still undecided.

(d) WCL having failed to receive the permission for extension of lease, WCL applied for temporary working permission (TWP) on 18-12-2003 which was forwarded by the State Government to the Central Government on 17th March, 2004.

(e) The Assistant Inspector General of Forests communicated, "in principle consent for one year's TWP by letter dated 15th April, 2004.

(f) In his letter dated 15th April, 2004 the Inspector General of Forests recorded that the application was kept pending by State Government inordinately while the WCL had also failed to pursue for timely disposal of the said application, and has ignored to the fact that the permission had come to an end from 1-1-2004.

(g) On the face of lack of prior permission as contemplated by Section 2 of the Forest (Conservation) Act, 1980, the WCL-employer- Company of the applicants continued to run the mining activities and it is in this background that the forest offence came to be registered.

5. The learned counsel for applicants tried to suggest that the underground mining work which is being carried out is not within the limits of reserved forest. However, as narrated earlier, parties are concurrent on the point that when first mining lease of two years was granted, it was with prior permission of the Central Government as provided under Section 2 of the Forest (Conservation) Act, 1980 and that fresh permission is now sought for, but is pending decision and has not yet been granted. The mining is going on despite want of permission, and this is so done since the WCL has invested huge funds, has raised infrastructure and continued to engage large manpower component.

6. The learned counsel for applicants raised legal submissions as follows :-

(i) Under Rule 24A(6) of the Mineral Concession Rules, 1960 framed under Section 13 of the Mines and Minerals (Regulation and Development) Act, 1957, which sub-rule reads as under :-

"(6) If an application for renewal of a mining lease made within the time referred to in sub-rule (1) is not disposed of by the State Government before the date of expiry of the lease, the period of that lease shall be deemed to have been extended by a further period till the State Government passes order thereon".

raises a situation of deeming effect of extension of period of lease.

On the basis of this sub-rule, the learned counsel has urged that by virtue of deeming fiction the lease stands automatically continued and the action of the WCL and in turn, by applicants in continuing with the mining activity does not come under the forbidden category and, therefore, is not an offence.

(ii) In view of judgment of Madhya Pradesh in the case of Pratap Singh Chouhan v. State of MP, to the effect that the mining lease was liable to be deemed as continued under sub-rule (6) of Rule 24-A as referred to in foregoing sub-para.

(iii) The Coal Bearing Act and law relating to mining have got overriding effect, and in any eventuality, no illegality was committed by the applicants and no offence was committed by them,

(iv) In order to substantiate that no illegality was committed and that the applicants are entitled for being released on anticipatory bail, and as to conditions as regards bail, and need or otherwise of custodial interrogation, reliance is placed on reported judgments, viz.-

(1) Gurbaksh Singh Sibbia etc. v. The State of Punjab, ., (2) Shaik Layak v. The State, 1981 Cri.L.J. 954, (3) Bharat Chowdhary and Anr. v. State of Bihar and anr, .

Strong reliance is placed, inter-alia, on Gurbaksh Singh's case (cited supra).

(v) That, the object of anticipatory bail as provided under Section 438, Criminal Procedure Code is to protect the cases of present nature and the applicants have right of being granted anticipatory bail.

7. The contentions raised by the applicants have been countered by the respondent on following contentions and pleas :-

(i) The arrest and interrogation and discovery of illegally conducted/undertaken mining operation was necessary and that under the garb of statutory authority and deemed extension of lease the applicants are not co-operating with the investigation.

(ii) The provisions contained in the Forest (Conservation) Act, 1980 have overriding effect as can be spelt out from the opening paragraph of Section 2, which reads as follows :-

"2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose. - Notwithstanding anything contained in any other law for the time being in farce in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order direction, ......."

(iii) The reliance placed by the applicants on the letter of the Assistant Inspector General of Forests being letter dated 15th April, 2004 is misplaced as said letter is not a decision of the Central Government granting permission to the State Government to permit the use as contemplated by Section 2 of the Forest (Conservation) Act, 1980.

(iv) Precedents which govern the field are -

(1) Chandrabhan Gour v. Shrawan Kumar Gour, 1980 Mh.LJ. 690; (2) G. Raghav Das v. Govt. of AP, ; (3) Rural Litigation and Entertainment Kendra v. State of UP, ; (4) B. V. Joshi v. State of AP, ; (5) Dhirendra Agrawal v. State of Bihar, ; and (6) Goa Foundation and Ors. v. State of Goa and Ors., 2001(3) Mh.L.J. 794 = 2001 (1) All MR 193.

Initially Honourable Supreme Court in Rural Litigation case (supra) (item No. 3) and later following said Honourable Supreme Court, Division Bench judgment of this Court in Goa Foundation and Ors. v. State of Goa and Ors., 2001(3) Mh. L.J. 794 - 2001 (1) All MR 193 Coram : F. I. Rebello and V. C. Daga, JJ) has recorded in no ambiguous terms that the provisions contained in the Forest (Conservation) Act have overriding effect, the prior permission contemplated by Section 2 is no circumstance 'ex-post facto' and further that the provisions contained in the Forest (Conservation) Act have a long term objective to be achieved and whether or not the land on which or relating to which the use is subject-matter consists of trees or not. In the 'Rural Litigation' case, where even decrees were passed against the State of Uttar Pradesh for grant of mining lease and had attained finality, resulted in direction to extend the mining lease, without prior permission of Central Government under Section 2 of the Forest (Conservation) Act. Honourable Supreme Court had, therefore, observed as follows :-

"........In view of the provisions in the Conservation Act and the opinion expressed in Ambica Quarry Works case (supra), with which we are in agreement, the decrees also would not be sustainable where prior approval of the Central Government has got been obtained. We agree with Brother Mukharji that whether it is a case of first grant or renewal following exercise of option by the lessee, the compliance of Section 2 of the Conservation Act is necessary as a condition precedent. No useful purpose would be served by allowing the litigations to be continued in different Courts, particularly when keeping the broad interest of society with reference to ecology and environment, we have come to the conclusion that mining in this area has to be stopped. Notice has to be taken of the situation that the entire dispute has been before this Court and the scope of the dispute is comprehensive. All parties are before this Court. Parties have also been heard on various aspects at different times. An order made by this Court to nullify the decrees in such circumstances would not be violative of the principles of natural justice......"

8. In the aforesaid situation, the present applications for bail stand in the tooth of admitted facts which do prima facie, nay ex facie constitute violation of mandatory provisions of law. All that the present applicants are trying to seek, contend and to shelter themselves background of the is on the fact that they are the employees of a fully owned Government Company/Undertaking which runs the nationalised activity of coal mining, and that they have been acting in good faith though their present mining is admittedly without prior permission.

It is seen that the conduct of the WCL, the employer of the applicants in failing to secure prior permission or failing to take steps before higher officials of the Government to get their application decided, exhibits not only their apathy to the mandatory provisions of law, but is gross disobedience and disrespect as well. This being the position, the clamor which they are now making, is excessively and grossly misplaced. One hand, they relied upon the judgment of MP High Court case of Pratapsingh Chouhan (supra) where the Authority concerned had prayed for issue of a writ in relation to the failure of the State to decide application of renewal of mining lease while in the present case, unlike a similar exercise in case of Pratapsingh Chouhan (supra), the applicants have in the absence of there being vested right, moved the Civil Court for injunction inspite of admitted fact and position that WCL did not possess in hand and having failed to exert to take even proper judicial recourse.

9. The Authorities under the Statute or under the Government, who are liable to be the first, amongst other entities obliged to follow and to adhere to the provisions of law, are seen at comfort in disobeying the law. Thus, the present application for grant of anticipatory bail is coming up on the face of vivid revealiation of commission of an offence.

10. The questions, therefore, arise are :-

(i) Whether reasonable apprehension of arrest exist?

(ii) When the commission of offence is prima facie demonstrated, whether it shall be just and proper to grant application for anticipatory bail by invoking to the exceptional equipment to protect the individual liberty such as Section 438, Criminal Procedure Code and consequent discretion for grant of anticipatory bail is liable to be exercised in their favour?

11. After having regard to the facts which are having no controversy between the parlies, and having regard to admitted position that prior permission under Section 2 of the Forest (Conservation) Act having not secured thereby prima facie an offence has been committed. The question as to whether apprehension of arrest exists, answer is in affirmative, however, answer to second question formulated in foregoing paragraph is in negative and the prayer for anticipatory bail fails for discussion and reasons recorded hereinbefore.

In the result, both the criminal applications stand rejected, Rule is discharged.