2008 (2) TMI 934 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of Union Government's approval under Section 5(1) of MMDR Act.
2. Compliance with Section 2 of the Forest Conservation Act, 1980.
3. Preferential rights under Section 11(2) of the MMDR Act.
4. Maintainability of the writ petition.

Detailed Analysis:

1. Validity of Union Government's Approval under Section 5(1) of MMDR Act:
The Petitioner challenged the approval granted by the Union Government under Section 5(1) of the MMDR Act for a prospecting license over 2500 hectares in Bailadila Reserve Forest. The Petitioner argued that the Union Government had no jurisdiction to issue the impugned order due to non-compliance with the mandatory provisions of the Forest Act. The court noted that the approval was given without prior consultation with the Central Government, as required by Section 5 of the MMDR Act. The court also observed that the special condition imposed by the state, requiring the third Respondent to set up a steel plant, was waived by the Central Government, which directed the state to comply with the Forest Conservation Act.

2. Compliance with Section 2 of the Forest Conservation Act, 1980:
The Petitioner contended that the impugned order violated Section 2 of the Forest Act, which mandates prior approval from the Central Government for any non-forest activity. The court highlighted the overriding effect of Section 2, which prohibits any order permitting the use of forest land for non-forest purposes without prior approval. The court cited various Supreme Court judgments, emphasizing that the approval under the Forest Act is a sine qua non before any non-forest activity, including the grant of a prospecting license. The court rejected the Respondents' argument that the approval under the Forest Act is required only when the prospecting license is actually granted and operations begin. The court held that the impugned order was issued without jurisdiction and contrary to law due to the lack of prior approval under the Forest Act.

3. Preferential Rights under Section 11(2) of the MMDR Act:
The Petitioner argued that the impugned order ignored its preferential right under Section 11(2) of the MMDR Act. The court noted that the Petitioner had applied for a prospecting license in 1991, and the area recommended for the third Respondent overlapped with the area applied for by the Petitioner. The court observed that the special condition for ignoring the Petitioner's preferential right was waived by the state, which was improper and without authority.

4. Maintainability of the Writ Petition:
The Respondents objected to the maintainability of the writ petition, arguing that the Petitioner had not disclosed the pendency of a related writ petition in the Chhattisgarh High Court. The court acknowledged the principle of comity of courts but noted that the subject matter of the present writ petition was different, focusing on the jurisdiction of statutory authorities under the Forest Act. The court found that the Petitioner had acted in good faith and had not abused the judicial process. The court held that the pendency of proceedings before the Chhattisgarh High Court did not bar the present petition and that the issues raised involved the legality and jurisdiction of statutory authorities.

Conclusion:
The court quashed the impugned order dated 14-2-2007 issued by the Central Government and all proceedings under the MMDR Act leading up to it, as being issued without jurisdiction and contrary to law. The writ petition and pending applications were allowed, with parties bearing their own costs.