Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1319 (PAT)

Om Prakash Yadav v. State Of Bihar

2007-08-09

NAVIN SINHA

body2007
Judgment 1. Heard Learned Counsel for the petitioner, learned Counsel for the Department of Mines and the learned Counsel appearing on behalf of the State. 2. The petitioner is aggrieved by the order dated 1.8.2003 of the Commissioner Mines in Revision Case No. 5 of 2003. The impugned order cancels the mining lease granted to the petitioner on two counts: (i) that he had violated certain conditions of the lease; and (ii) that the No Objectioin Certificate granted by the Department of Forest had been withdrawn. 3. The petitioner was granted a mining lease in the year 1999 for ten years for extraction of stones in Plot No. 1907 (part), Thana No. 217, Cadestral Survey No. 217, Mauja Patam, PS Munger over an area of 2.29 Acres. Prior to the grant of the lease, the Forest Department vide Annexure 2 dated 27.7.1998 confirmed that the area proposed to be leased to the petitioner fell outside the forest area. It however cautioned that in the garb of mining in non-forest land, no interference should be caused within the notified forest lands. Subsequently the District Magistrate, Munger constituted a committee to reascertain if the lands leased were part of the forest area. The report dated 27.7.2000 of the Committee again confirmed that the lands leased for mining were outside the notified forest area. 4. On 2.1.2003 the petitioner was given a show cause notice by the Department of Mines alleging violation of certain conditions of the lease. In the show cause notice the question of absence of NOC from the Forest Authority was not an issue. Item No. 7 of the show cause notice however did take notice of the fact that on account of explosive used by the petitioner the Secretary, Forest and Environment by his letter dated 24.9.2002 had noted that it was having effect on the wild life in the adjacent sanctuary. The petitioner submitted his reply. Ultimately by order dated 14.2.2003 the mining lease of the petitioner was cancelled prematurely on four counts. The absence of a no objection certificate from the Department of Forest was not one of the grounds. The revision application came to be preferred thereafter when the impugned order has been passed. 5. The petitioner submitted his reply. Ultimately by order dated 14.2.2003 the mining lease of the petitioner was cancelled prematurely on four counts. The absence of a no objection certificate from the Department of Forest was not one of the grounds. The revision application came to be preferred thereafter when the impugned order has been passed. 5. The counter affidavit on behalf of the Forest Department states that the area leased to the petitioner was on the boundary of the notified forest area of the Bhim Bandh Wild Life Sanctuary and that part of Plot No. 1907 fell within the notified sanctuary. It then urges that the NOC given by the Forest Office, Munger had been withdrawn. 6. In his rejoinder the petitioner has asserted that even while his mining has been prohibited certain other lessee nonetheless are permitted to operate on. Plot No. 1907 (part). 7. The petitioner was granted a lease in 1999. The Forest Authorities were satisfied that the area leased out to the petitioner fell out of the limits of the sanctuary and therefore themselves did not consider it prudent to require clearance under Section 2 of the Forest Conservation Act. The issue of NOC from the Forest Department was also not subject matter of the show cause notice. In the revisional order only a submission was made before the Commissioner of Mines that the Forest Department has withdrawn the NOC. If there was a clearance under the Forest Conservation Act, the power to withdraw the same rested with the Central Government and not with the Forest Department, Munger. 8. No such order was produced before the revisional authority. In the show cause notice the absence of an NOC was not an issue at all. The impugned order in so far as it cancels the lease on a ground not part of the show cause cannot be sustained. The revisional order therefore cancelling the mining lease for reasons of withdrawal of NOC is held to be bad in law and is accordingly set aside. 9. In so far as the question of violation of conditions of the lease is concerned the impugned order of cancellation is Cryptic. The petitioner was given a show cause notice. He filed his reply. The final order of cancellation came to be passed on four counts. 9. In so far as the question of violation of conditions of the lease is concerned the impugned order of cancellation is Cryptic. The petitioner was given a show cause notice. He filed his reply. The final order of cancellation came to be passed on four counts. In the impugned order of the revisional authority there is no discussion as to what passed the mind of the authorities on the basis of which he did not find the show cause to be satisfactory. The revisional power regulated by statutory provisions under the Bihar Minor Minerals Concession Rules. The revisional order of amenable to challenge in writ application. To enable judicial review it is necessary for the revisional authority to indicate reasons so that the order may be tested for its correctness in accordance with law. On this count also this Court finds the revisional order to be erroneous. It is accordingly set aside. 10. The next question which arises is of the nature of the relief to be granted to the petitioner after setting aside the order of cancellation of the lease. In normal circumstances this would have brought resumption of mining activities to the petitioner. However, this Court from the show cause notice at Annexure-5 finds that one of the allegation was of use of explosive causing harm to the wild life in the adjacent sanctuary. In the counter affidavit of the Forest Department also it has been stated that a part of Plot No. 1907 on which the petitioner was doing mining activities fell within the notified limits of the Sanctuary. The area leased appears to be contiguous to the notified wild life sanctuary. The guidelines laid down in the Forest Conservation Act is clear in the several orders of the Supreme Court, requiring the authorities to demarcate by boundary, through barbed wire or pillars of the safety zone area of the forest. No mining activities is to be permitted within the safety zone area. Reason for the same is quite apparent from Item No. 7 of the show cause notice taken note of above. 11. This Court therefore directs that prior to resumption of mining activities by the petitioner respondent no. 2 shall hold an enquiry with regard to safety zone of the Bhim Bandh Wild Life Sanctuary as notified under the Forest Conservation Act. 11. This Court therefore directs that prior to resumption of mining activities by the petitioner respondent no. 2 shall hold an enquiry with regard to safety zone of the Bhim Bandh Wild Life Sanctuary as notified under the Forest Conservation Act. Heshall not permit any mining activity by the petitioner or any other person within the safety zone area. It need no emphasis that respondent no. 2 the granter of the lease shall himself remain answerable for any mining activities that may be done in the safety zone area. Let such exercise be carried out by the respondent no. 2 within 12 weeks from the date of receipt and/or production of a copy of this order. The right of the petitioner to recommence mining operation shall depend on report of such enquiry by the respondent no. 2. 12. This application is allowed to the extent indicated above.