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2004 DIGILAW 407 (JHR)

Om Prakash Agarwala v. State Of Jharkhand

2004-04-16

LAKSHMAN URAON

body2004
ORDER Lakshman Uraon, J. 1. Petitioner Om Prakash Agarwala prayed to quash order dated 23.9.2003 passed by Shri Abdul Samad, Sessions Judge, Dhanbad in Cr. Revision No. 198 of 2003, whereby and whereunder he has been pleased to dismiss the criminal revision application filed against the order dated 19.6.2003 passed by Shri V. Kumar, Judicial Magistrate, Dhanbad in Baliapur PS Case No. 8 of 2003 (G.R. No. 357 of 2003) in which the prayer of the petitioner for release of the seized machineries, crusher machine and other instruments along with stone chips, etc has been rejected. 2. Petitioner was granted mining lease for mineral stones on 26.4.1990 for ten years at Mouza Paharpur over Plot No. 2598 part measuring an area of 5.74 acres within Baliapur PS of Dhanbad district. He started carrying on business of mining operation. The mining lease expired in the month of April, 2000. He filed renewal application before the respondents on 15.12.1999. When in time no mining lease was renewed, then he filed an application before the Mines Commissioner, Dhanbad. The said Court by order dated 26.7.2000 directed the District Mining Officer, Dhanbad to pass necessary orders. When the District Mining Officer did not pass any order on the renewal application, then petitioner preferred writ application on 19.12.2000 in which direction was issued to comply order dated 26.7,2000 of the Mines Commissioner passed in Cr. Revision No. 140 of 2000. The District Mining Officer cancelled the mining lease by order dated 22.7.2002 which was communicated under letter dated 30,7.2002 regarding cancellation of mining lease. Against that communication, petitioner preferred revision bearing No. 115 of 2002 before the respondents who set aside the impugned order dated 14.1.2003, directing the Deputy Commissioner to take necessary corrective measures for grant of mineral concession if the land is finally decided to be forest land, It was observed that respondent-District Mining Officer/Deputy Commissioner will take written undertaking from this petitioner that he shall not, mine till final decision it taken in granting mineral concession. The District Mining Officer, Dhanbad informed this, petitioner to close the work on the land in question and in the meantime, FIR was lodged for carrying on mining operation from 27.7.2002 till the FIR was lodged on 6.2.2003. 3. The land in question has been declared as forest under the Indian Forest Act. The District Mining Officer, Dhanbad informed this, petitioner to close the work on the land in question and in the meantime, FIR was lodged for carrying on mining operation from 27.7.2002 till the FIR was lodged on 6.2.2003. 3. The land in question has been declared as forest under the Indian Forest Act. 1927 Under Section 29 of the said Act and a notification was issued on 31.12.1999 declaring the said land as forest. Petitioner claimed that even if it was declared a forest land with the permission of competent authority/Government, the permission of mineral concession is granted to carry one business of any kind. Petitioner submits that stone is not the forest product and in view of the fact, there is no contravention of the provision of the Indian Forest Act. 1927. The machineries and articles of the petitioner and the stone chips laying there were seized by the police and the prayer for release of the same was rejected by both the learned Courts below. 4. The learned counsel for the petitioner has submitted that the approach of the learned Sessions Judge observing that the provision of zimmenama to the near relative will mean release of the seized articles as the petitioner has not been given benefit of the lease and he cannot sell the same. It was further submitted that even if the seized machineries and materials are material exhibits, it can be released to the owner of the machineries. The petitioner closed the mining operation since December, 2002. The electric connection of the firm was also disconnected in the month of January, 2003. At present, there is no mining operation since from the relevant time when the FIR was lodged. It was submitted that there is no other claimant except this petitioner as owner of the machineries. He has been made victim in between fights of two departments Let Mining Department and the Forest Department. On these grounds, it was prayed to quash the orders of the learned Courts below and release the seized crusher machines, other instruments and stone chips, etc in favour of the petitioner- owner. 5. Mr. Manoj Kumar, JC to GP II has submitted that the renewal of mining lease was rejected on 22.7.2002 and was communicated, under letter No. 1384, dated 20.7.2002 and also a Gazette notification was made. 5. Mr. Manoj Kumar, JC to GP II has submitted that the renewal of mining lease was rejected on 22.7.2002 and was communicated, under letter No. 1384, dated 20.7.2002 and also a Gazette notification was made. The said rejection order was challenged, but it was dismissed by this Court in Writ Petition (C) No. 3123 of 2001 and was affirmed in LPA No. 423 of 2002. The petitioner has challenged the rejection order regarding release of the seized crusher machine and stone chips passed by the learned Court below. When the FIR was lodged and the machineries, stone chips were seized, at that time mining operation was conducted without renewal of the mining lease concession. Hence, the seized stone chips were the stolen property which exclusively belong to the Forest Department, although earlier mining lease was issued without permission of the Central Government for mining operation. The area where the mining operation was conducted was declared forest area. Mining lease was not renewed, even then till lodging of FIR he operated mining operation resulting institution of a case Under Section 379 IPC, and Section 33 of the Indian Forest Act. Learned JC to GP-II has submitted that at the relevant time, when the articles were seized, the petitioner has no authority to conduct mining operation. Hence the articles, chips stocked there belonged to Forest Department: which cannot be released in favour of the petitioner. 6. In this present case, petitioner was conducting his mining operation as he was granted mining lease. Before expiry of the mining lease, he had applied for renewal which remained pending, but he still continued mining operation. But when the mining lease was not renewed, then he closed the firm. Electric connection with also disconnected. 7. Now the fact remains that after rejection of the mining lease operation, this petitioner has stopped mining operation, but in between expiry of the lease period and rejection of the renewal application, he carried on stone chips business and has stocked at the firm stone chips and stone boulders, where crusher machiners were also there. After refusal of the renewal, crusher machines, stone chips and stone boulders were seized. In between the expiry of lease period and till closures of the mining operation, stone chips and boulders were extracted from the forest area. After refusal of the renewal, crusher machines, stone chips and stone boulders were seized. In between the expiry of lease period and till closures of the mining operation, stone chips and boulders were extracted from the forest area. Hence, these properties belong to the forest department and were stocked there after mining operation without any valid lease. Hence, in my view, the stone chips and stone boulders cannot be claimed by this petitioner as real owner who has. stocked there after extracting stones from the forest area even after expiry of the lease period. Hence, the release in respect of the stone chips and stone boulders in favour of the petitioner has rightly been refused by the learned Courts below. I do not find any valid reason to interfere with the said orders. So far crusher machine is concerned which was used in mining operation, it exclusively belongs to this petitioner. He continued his mining operation even after expiry of the lease period on the ground that he had applied for renewal and hoping to be renewed, he carried on business. So his intention was not to violate any orders of the Mining Department or the Forest Department, rather in a bona fide belief for getting renewal of his mining lease, he continued mining operation, If the crusher machine is allowed to remain there till disposal of the case on the ground that it is material exhibit as, observed by Revisional Court below will cause great financial loss. The learned Sessions Judge has refused to release the crusher machinery also on the ground that it. is material exhibit whereas the stone-chips has already been given on zimmenama to the near relative which amount almost releasing the same. 8. As I have viewed above, the real owner of the stone chips is the Forest Department as it was extracted from the forest area even after expiry of the rnining lease. Hence the petitioner is not the real owner of the stone chips and boulders stocked there which cannot be released in his favour. So far crusher machine is concerned, it exclusively belongs to the petitioner and is lying at the firm place in the jungle. Hence the petitioner is not the real owner of the stone chips and boulders stocked there which cannot be released in his favour. So far crusher machine is concerned, it exclusively belongs to the petitioner and is lying at the firm place in the jungle. If it is allowed to remain for a pretty long time till disposal of the case, the valuation of machinery will be deteriorated/damaged causing financial loss to the petitioner I think that there is no harm if the crusher machine belonging to this petitioner is released in his favour on executing proper bond and surety amount to be determined by the learned Court below with a condition that whenever the crusher machine will be required in course of trial the petitioner will produced the same as material exhibit without any change in its present physical feature. 9. With these observations, this criminal writ petition is disposed of.