Karnataka High Court
Visveswaraiah Iron & Steel Ltd vs Wild Life Conservation Action Team on 4 December, 2023
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RSA No. 1059 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.1059 OF 2016 (DEC/INJ)
BETWEEN:
1. VISVESWARAIAH IRON & STEEL LTD
BHADRAVATHI-577 301
REPRESENTED BY ITS
GENERAL POWER OF ATTORNEY HOLDER
MR H N VENKATESH
SENIOR MANAGER (LAW)
2. STEEL AUTHORITY OF INDIA
BY ITS CEO
ISPAT BHAVAN
LODHI ROAD
NEW DELHI-110 003
REPRESENTED BY ITS CONSTITUTED
Digitally signed ATTORNEY
by CHAITHRA SRI.JAGMOHAN SHARMA
A EXECUTIVE DIRECTOR (LAW) AND PCO
Location: HIGH
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI. SACHINDRA KARANTH K, ADVOCATE)
AND:
1. WILD LIFE CONSERVATION ACTION TEAM
CHIKMAGALUR
REPRESENTED BY ITS
MANAGING TRUSTEE
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RSA No. 1059 of 2016
MR.SRIDEV HULIKERE
AGED ABOUT 43 YEARS
S/O H D KRISHNA
WOODWAY ESTATE
JAKKANALLY POST
CHIKMAGALUR TALUK
PIN CODE - 577130
2. MR.S.GIRIJA SHANKAR
S/O LATE SHANKARA NARAYANA
AGED ABOUT 64 YEARS
EDITOR, JANA MITHRA DAILY
CHIKMAGALUR
PIN CODE - 577101
3. MR MANISH KUMAR
S/O MR.MADANCHAND
AGED ABOUT 34 YEARS
COFFEE PLANTER
M G ROAD
CHIKMAGALUR
PIN CODE - 577101
4. MR M N SHADAKSHARI
S/O LATE M.NANJAPPA SHETTY
AGED ABOUT 69 YEARS
PRINCIPAL OF MODEL ENGLSIH SCHOOL
UPPALLI
CHIKMAGALUR CITY
PIN CODE - 577101
5. MR.VESLY PINTO
S/O MR.L.PINTO
AGED ABOUT 57 YEARS
CIVIL ENGINEER AND SURVEYOR
R/O HOSAMANE EXTENSION
CHIKMAGALUR CITY
PIN CODE - 577 101
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RSA No. 1059 of 2016
6. MR JAAYARAMU
S/O MR VENKATAMANAPPA
AGED ABOUT 75 YEARS
RETIRED POST MASTER
R/O KEMMANNUGUNDI-577 141
7. GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
BENGALURU - 560 001
REPRESENTED BY ITS
CHIEF SECRETARY
8. THE SECRETARY
DEPARTMENT OF MINES AND GEOLOGY
DR.AMBEDKAR ROAD
BENGALURU - 560 001
9. THE SECRETARY
MINISTRY OF ENVIRONMENT AND FOREST
GOVERNMENT OF INDIA
PARIYAVARAN BHAVAN
C G O COMPLEX
LODHI ROAD
NEW DELHI-110 003
10. THE PRINCIPAL CHIEF
CONSERVATOR OF FORESTS
ARANYA BHAVAN
18TH CROSS
MALLESHWARAM
BENGALURU-560 003
11. THE DEPUTY CONSERVATOR OF FORESTS
BHADRA WILD LIFE DIVISION
CHIKMAGALUR
PIN CODE - 577101
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RSA No. 1059 of 2016
12. THE DEPUTY COMMISSIONER
CHIKMAGALUR DISTRICT
CHIKMAGALUR
PIN CODE - 577 101
13. THE TAHSILDAR
TARIKERE TALUK
TARIKERE-577 228
14. THE TAHSILDAR
CHIKMAGALUR TALUK
CHIKMAGALUR-577 101
...RESPONDENTS
(BY MS.JAYNA KOTHARI, SENIOR COUNSEL
FOR MS.APARNA MEHROTRA, ADVOCATE
A/W SRI.NAVEEN CHANDRA V, ADVOCATE FOR R.1;
SRI.ANUKANKSHA KALKERI, HCGP FOR R.7 TO R.14;
SRI.SHIVAKUMAR S, ADVOCATE FOR R.9
R.2 TO 6 ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 02.03.2016 PASSED IN
RA.NO.82/2012 ON THE FILE OF THE I ADDL. DISTRICT
JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
02.07.2012 PASSED IN OS.NO.124/2007 ON THE FILE OF THE
ADDL. SENIOR CIVIL JUDGE AND JMFC., CHIKMAGALORE
AND ETC.
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RSA No. 1059 of 2016
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by defendant
Nos.2 and 3 assailing concurrent judgments rendered by
both the Courts in a representative suit seeking
declaration to declare that suit schedule property is part of
Eco-Sensitive Western Ghats, which is close to Bhadra
Sanctuary and for consequential relief of injunction
restraining the defendants from indulging in any kind of
mining and related operations in the suit schedule
properties.
2. For the sake of brevity, the parties are
referred as they are ranked before the Trial Court.
3. Brief facts leading to the case are as under;
The suit schedule properties have a rich iron ore
and it is a part of Eco-Sensitive Western Ghats and it is
part of delicate and sensitive forest. There has been active
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mining operations in the schedule properties, which has
been destroying the Eco-Structure, as the schedule
properties are very close to Bhadra Sanctuary. The mining
activities in the schedule properties will have effect of
destroying the Eco-structure, affecting the wildlife and
drying up innumerable streams, which feed the Bhadra
river, as it is within the catchment area. The defendant
Nos.2 and 3 held mining lease over an area of 42.7
hectares, in revenue Sy. No.6 of Thingada Village, which is
part of Kemmannagundi Mines. The mining lease granted
under MMRD Act was for 20 years, from 1963 and it was
expired during the year 1983 and it has not been renewed
or no fresh lease was granted. The defendant Nos.2 and 3
allowed the illegal mining in Sy. No.39 and 40 of
Kesavinamane Village. The surface mining of the iron ore
has been causing disturbance to Wild Life, resulting in
disastrous imbalance of environment, due to felling of
trees and erosion and depletion of water sources of
several streams, including Odirayanahalla and Hebbe Falls
and several other streams. The schedule property is the
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part of fragile Western Ghats, which forms part of 25
bio-diversity hot spots. Even though the mining lease has
expired, the mining activity continued in gross violation of
the law relating to mining. In the guise of transporting
Iron ore fines, illegal and clandestine mining activity is
going on by digging precious ore, involving crores of
rupees. On all these grounds, the plaintiffs instituted suit
to declare that the schedule property is part of
Eco-Sensitive Western Ghats, which is close to Bhadra
Sanctuary and for permanent injunction restraining the
defendants from indulging in any mining and related
operations in the suit properties.
4. Defendant Nos.2 and 3 on receipt of summons
contested the suit by filing written statement. Defendant
Nos.2 and 3 claimed that suit filed by plaintiffs is a
frivolous suit only with a view to blackmail the contractors
of defendant Nos.2 and 3, who have been mining in the
suit schedule properties with a prior permission from the
competent authority. The defendants have also admitted
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that lease period has expired during the year 1983 and
they applied for renewal of the lease, which is pending
consideration before the Government. The defendants
claimed that the Government has permitted defendant
No.2 to restart mining activities in area of 42.70 hectares
of revenue land. On account of rejection of mining
operations by the Indian Board for Wild Life, the
defendants admitted that they have stopped to carry out
mining activities at Kemmannugundi. However, the
defendants claimed that the mining, which was already
carried out during subsistence of lease period, is dumped
in an area notified as Eco-Sensitive Zone and therefore,
defendants claimed that they are entitled to transport iron
ore fines by inviting tenders. On these set of defences, the
defendants sought for dismissal of the suit.
5. The plaintiffs to substantiate their respective
claims have examined one witness as P.W.1 and marked
11 documents as Exs.P.1 to 11, while defendants have
examined one witness, who is examined as D.W.1. The
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defendants, however, have not chosen to lead any rebuttal
documentary evidence in support of their claim.
6. Trial Court referring to the evidence on record
and taking cognizance of the admissions elicited in the
cross-examination of D.W.1, who has admitted in
unequivocal terms that any kind of mining activities in the
suit schedule properties would have a direct impact on the
wild life and environment, answered issue Nos.1 and 2 in
the Affirmative and against the defendants. While
examining documentary evidence on record, the Trial
Court was also of the view that right of the defendants to
carry out mining operation expired in the year 1983. It is
in this background, the Trial Court held that the
defendants have not furnished/adduced any documentary
evidence to substantiate that lease period is extended and
permission is granted by the Competent Authority.
Though defendants claimed that permission is granted by
the Government to transport the iron ore fines, which was
already mined during the subsistence of lease period, the
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said contention was not acceded to by the Trial Court for
want of rebuttal documentary evidence. The Trial Court,
while examining the evidence let in by the plaintiffs, was
of the view that even transportation of the iron ore fines
falls within the definition of mining operations and
therefore, suit is decreed thereby declaring that suit
schedule property being part of Eco-Sensitive Western
Ghat and close to Bhadra Sanctuary, no mining operations
can be permitted. Consequently, defendants are restrained
from carrying out any mining and related operations.
7. Feeling aggrieved by the judgment and decree
of the Trial Court, defendant Nos.2 and 3 preferred an
appeal before the Appellate Court.
8. The Appellate Court has independently
assessed the entire evidence on record. The Appellate
Court was also of the view that though defendants claimed
during trial that the Government has permitted the
defendants to transport iron ore fines, no documents are
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produced to substantiate the said claim. It is in this
background, the Appellate Court has concurred with the
reasons and conclusions recorded by the Trial Court.
Consequently, the appeal is dismissed.
9. Heard learned counsel appearing for defendant
Nos.2 and 3 and learned Senior Counsel appearing for the
plaintiffs. Perused the concurrent findings of both the
Courts.
10. Though a feeble attempt is made by the
learned counsel appearing for defendant Nos.2 and 3
questioning the inherent jurisdiction of the Court, this
Court is not inclined to the said argument. The defendants
contended that in view of commencement of the National
Green Tribunal Act, 2010 (for short 'Act, 2010'), the suit is
barred under Section 9 of the Civil Procedure Code as well
as under Sections 14 and 29 of the 'Act, 2010'. This
contention is effectively countered by the learned Senior
Counsel by referring to the very Sections, which does not
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indicate that the pending cases are also covered under the
'Act, 2010'. She would also point out that the 'Act, 2010' is
silent and the fact that the Civil Courts had jurisdiction to
entertain the suit as on the date of filing of the suit, such a
contention cannot be entertained at this juncture, that too
under Section 100 of Civil Procedure Code. She has also
brought to the notice of this Court that this plea is neither
raised before the Court of first instance nor before the
First Appellate Court. No specific grounds are taken while
preferring an appeal before the Appellate Court.
11. If these significant details are looked into,
I am of the view that the said contention cannot be
entertained at this juncture. If the Act, 2010 is silent
insofar as pending cases are concerned and the fact that
the Court did possess jurisdiction to entertain a suit as on
the date of filing of the suit and the fact that the parties
have submitted to the jurisdiction of a competent Civil
Court, no indulgence is warranted at this juncture.
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12. Insofar as concurrent findings of the Courts
are concerned, this Court would find that defendants
having taken a specific stand that the Government has
granted a permission to lift the iron ore, which is virtually
already mined during subsistence of lease, defendant
Nos.2 and 3 for the reasons best known to them have
neither entered into the witness box nor produced any
rebuttal documentary evidence to substantiate that the
Iron Ore fines is lying at the suit properties, which were
extracted during subsistence of the lease period. Both the
Courts referring to the documents produced by the
plaintiffs have concurrently held that defendant Nos.2
and 3 had no license to carry out mining operations post
1983. Referring to these significant details, both the
Courts were justified in granting injunction thereby
restraining defendants from lifting alleged iron ore fines,
which is found to be dumped on account mining done
during subsistence of mining. These concurrent findings
rendered by both the Courts are based on legal evidence
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let in by the plaintiffs and in absence of rebuttal evidence
let in by defendant Nos.2 and 3.
13. Defendant Nos.2 and 3 claimed that the
present suit stands vitiated on account of non-compliance
of provisions of under Order 1 Rule 8 of CPC., and the said
fact is rightly also dealt by both the Courts. As rightly
pointed by the learned Senior Counsel appearing for
defendant No.1, the present suit is filed under Section 91
of CPC., and an application was filed seeking leave of the
Court to prosecute the suit. If Trial Court on examining
the prima-facie materials has granted leave and if
defendant Nos.2 and 3 never sought revocation of the
leave granted by the Court, the mandate under the
provisions of under Order 1 Rule 8 of CPC does not apply
to the suit filed under Section 91 of CPC. This aspect is
dealt by both the Courts. Be that as it may, defendants
cannot be permitted to agitate the said point, which is
dealt by both the Courts.
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No substantial question of law arises for
consideration.
Accordingly, the appeal is dismissed.
Pending applications, if any, are also dismissed.
Sd/-
JUDGE
NBM
