JUDGMENT By the Court.—The present writ petition has been filed for issuing a writ of mandamus directing the respondents not to restrain the petitioner from mining operation as per Condition No. 13 as mentioned in the agreement-dated 11.7.2002. Further issuing a writ in the nature of mandamus directing the respondent No. 3 to give No Objection Certificate" in favour of the petitioner in the light of joint report dated 31.10.2001. 2. The facts arising out of the present writ petition are that the brother of the petitioner Lal Mani was recorded as Bhumidhar with transferable right of Plots Nos.1043, 1046, 1048, 1047 and 1049, area 5-10-10 situated in Borji Mukundpur, Pargana Kantit, Tehsil Sadar, District Mirzapur. From the perusal of Annexure 2 of the writ petition it clearly reveals that Arazi No. 1043 is a very big plot measuring area 68-0-2 out of which the petitioner has only claimed right over 5-10-10 recorded in the name of the family member. The petitioners brother applied for mining lease in the year 1988 and was granted mining lease for a period of five years, which was valid up to 6.5.1993. Thereafter, with the consent of the petitioners brother the petitioner applied for grant of mining lease and the same was granted which was valid up to 5.4.1999. After grant of mining lease, the petitioner started mining business and has also paid royalty as prescribed by the Rules. Vide order-dated 16.1.1998, the respondent No. 1 stopped the mining operation on the ground of judgment by the Apex Court in Godavaraman case. The respondent No. 1 has also cancelled the mining lease of the petitioner by order-dated 21.5.1998. A writ petition was filed before this Court as Writ Petition No. 30157 of 1998, which was disposed of finally with a direction to dispose of the representation of the petitioner within a period of six weeks. By order-dated 8.1.1999, the representation of the petitioner was decided and was rejected. A copy of the same has been filed as Annexure 6 to the writ petition. 3. The State Government had issued a Government Order dated 19.12.1998 in view of the judgment of the Apex Court in T.N. Godavaraman case that the mining operation will continue if the mining area is away more than 100 meters from the forest area. A copy of the same has been filed as Annexure 6 to the writ petition. 3. The State Government had issued a Government Order dated 19.12.1998 in view of the judgment of the Apex Court in T.N. Godavaraman case that the mining operation will continue if the mining area is away more than 100 meters from the forest area. The earlier order was passed cancelling the lease of the petitioner by the respondent No. 1 without making any spot inspection and without any survey regarding to this effect whether the mining lease was within the limit of 100 meters or not. The State Government had directed all the District Magistrates of the State to form a Joint Committee for the purposes of survey. A Committee was constituted in which 30.12.2000 was fixed for the purposes of spot inspection. A joint report was prepared on 31.10.2001, whereby it has been mentioned that plot No. 1043 measuring areas 5-10-10 belonging to the petitioner is situated 105 meters away from the forest boundaries and there is a path available for igress and ingress. The petitioner moved an application on 9.11.2001 along with the requisite papers after depositing a fee of Rs. 3,000/- for grant of mining lease . The same was received in the office of the respondent No. 2 on 13.11.2001. 4. The petitioner filed a writ petition before this Court, which was numbered as Writ Petition No. 43168 of 2001 (Lallan Prasad v. District Magistrate, Mirzapur and others) praying for a writ of mandamus directing the respondents to grant mining lease to the petitioner. The said writ petition was disposed of finally to decide the application of the petitioner within a period of one month accordingly. It has further been submitted that the respondent No. 2 issued a letter to the respondent No. 3 for giving No Objection Certificate" on the basis of the joint report dated 31.10.2001. The respondent No. 1 granted the lease in favour of the petitioner by order dated 7.5.2002 on Arazi No. 1043 measuring 3.45 acres. It has further been submitted that the respondent No. 2 issued a letter to the respondent No. 3 for giving No Objection Certificate" on the basis of the joint report dated 31.10.2001. The respondent No. 1 granted the lease in favour of the petitioner by order dated 7.5.2002 on Arazi No. 1043 measuring 3.45 acres. A registered agreement/deed was executed in favour of the petitioner on 11.7.2002, putting a condition No. 13 which states that till No Objection Certificate" is given by the respondent No. 3, no permission will be granted to start the mining operation but as No Objection Certificate" has not been issued and condition which has been put is not correct as in the joint report dated 31.10.2001 it has clearly been stated that Plot No. 1043 is situated at a distance of 105 meters away from the forest area, hence the present writ petition for the relief mentioned above. 5. By order dated 14.12.2004, this Court has disposed of the writ petition after hearing Counsel for the parties for issuance of No Objection Certificate" by the respondent No. 3. The following orders was passed : "Heard Sri G.K.Malviya, learned Counsel for the petitioner and learned Standing Counsel. The petitioner has been granted lease vide order dated 7.5.2002. Thereafter demarcation proceedings have been undertaken but the no objection certificate" has been unnecessarily withheld by the respondent No. 3, Divisional Forest Officer, Mirzapur. After having perused the record and the letter dated 23.9.2004, sent by the District Magistrate, Mirzapur to the Divisional Forest Officer, Mirzapur, produced before us, we direct the respondent No. 3, Divisional Forest Officer, Mirzapur to issue no objection certificate" within two weeks and the District Magistrate, Mirzapur is further directed to complete further formalities within two weeks thereafter from the date of filing of a certified copy of this order. With the aforesaid direction, the writ petition is disposed of. A certified copy of this order be issued to the learned Counsel for the parties on payment of usual charges within two days." 6. It appears that the respondents State i.e. Divisional Forest Officer Mirzapur was not satisfied with the order passed by this Court, as such, filed an appeal before the Apex Court as Civil Appeal No. 2762 of 2006 (Divisional Forest Officer, Mirzapur and others v. Lallan Prasad). It appears that the respondents State i.e. Divisional Forest Officer Mirzapur was not satisfied with the order passed by this Court, as such, filed an appeal before the Apex Court as Civil Appeal No. 2762 of 2006 (Divisional Forest Officer, Mirzapur and others v. Lallan Prasad). The aforesaid appeal was finally disposed of vide its order dated 3rd July, 2006 and the Apex Court had passed the following orders : "Delay condoned. Leave granted. By the impugned order, the High Court has directed the appellant, namely, the Divisional Forest Officer, to grant no objection certificate". Further, the District Magistrate, Mirzapur has been directed to complete further formalities within two weeks from the date of the filing of a certified copy of the order. The dispute is whether the land in question falls within the definition of forest" or not in terms of the decision of this Court in T.N.Godavaraman Thirumulkpad v. Union of India and others, (1997) 2 SCC 267 . There also seems to be some dispute as to the distance of the land in question from the forest limit. The judgment of the High Court is practically without reasons whatsoever. Accordingly, we set aside the impugned judgment and remit Writ Petition No. 35650 of 2002 for fresh decision by the High Court in accordance with law, after giving opportunity to the parties. Though we have broadly indicated the dispute inter-se parties, but we have not examined the merits of the respective contentions. Our observation shall not be treated as any expression of opinion on merits on either side. The writ petition shall be disposed of expeditiously and preferably within a period of six months. The appeal is, accordingly, disposed of." 7. In view of the aforesaid order passed by the Apex Court, now the writ petition has come up before this Court for final adjudication on merits. 8. It has been submitted on behalf of the petitioner that as it has clearly been stated in the joint report that the area for which the petitioner has made an application is beyond 105 meters of the forest area, therefore, the petitioner is entitled for No Objection Certificate and the respondent No. 3 is bound to issue No Objection Certificate" in favour of the petitioner. As the petitioner has completed the other required formalities according to Rules, therefore, a condition in the lease deed putting Condition No. 13 should be quashed and the petitioner be permitted to operate the mining lease. 9. It has further been submitted that on the basis of the letter dated 21.7.2003 sent by the Special Secretary, Forest Department called a report from the Forest Settlement Officer, Mirzapur and the Forest Settlement Officer Mirzapur after making spot inspection, prepared a report and it has been sent to Prabhagiya Van Adhikari by letter dated 27.9.2003 and corrected the new map of the village according to Khatauni. In pursuance of the letter dated 27.9.2003 it has been stated that total area is 66-2-0 in Arazi No. 264 in which 11-10-0 is the forest area and remaining area is in the name of agriculturists and in the pahar area. The Prabhagiya Van Adhikari has clearly stated that distance from the forest boundary of the lease area is 105 meters away. The No Objection Certificate" can be issued as it is apparent that the petitioners area is away beyond 100 meters of the forest boundary as such, No Objection Certificate" can be issued in favour of the petitioner. 10. Two counter-affidavits have been filed on behalf of the respondents. One has been filed on behalf of the respondent Nos.1 and 2 and another counter-affidavit has been filed on behalf of respondent No. 3. 11. It has been stated in the counter-affidavit that the Honble Apex Court in the matter of T.N. Godavaraman Thirumulkpad has clearly held and has directed to ensure that there should not be any non-forest user of the area, which is adjacent to the reserve forest. In pursuance of the order of the Apex Court the State Government had issued a Government Order dated 19.9.1998 and has ensured that while granting any lease 100 meters area adjacent to the reserve forest will be excluded. The petitioner was earlier granted mining lease for the sand stone for the mining area No. 1043 Gha measuring 5 acre. The lease was with effect from 6.4.94 to 5.4.99. The joint team conducted the survey and found that leaseholders were mining the prohibited 100 meters also, as such, the lease was cancelled. The petitioner was earlier granted mining lease for the sand stone for the mining area No. 1043 Gha measuring 5 acre. The lease was with effect from 6.4.94 to 5.4.99. The joint team conducted the survey and found that leaseholders were mining the prohibited 100 meters also, as such, the lease was cancelled. Since the mining area of the petitioner was adjacent to the forest, as such, in view of the objection raised by the Divisional Forest Officer, Mirzapur, it was not practically possible for the petitioner to carry out the mining operation. 12. In the counter-affidavit filed on behalf of the respondent No. 3, in para 5 it has been stated that the plot No. 1043 is measuring about 66 bigha 2 biswa out of which 5 bigha, 10 biswas and 10 biswansi belongs to the petitioner and a notification dated 20.10.1983 was issued under Section 20 of the Forest Act declaring the old plot No. 964 (New Arazi No. 1043) as a forest land. The lease of the petitioner was cancelled on the basis that it is within 100 meters of the forest area. It has further been stated that as regards the area of 3.45 acre of Arazi No. 1043 for which the mining lease has been granted and by letter dated 28.4.2003, it has been sent to the forest officer for demarcation as well as issuance of No Objection Certificate", as soon as the State Government sent the copy of the gazette and it is found that the area for which the petitioner has been granted lease is away 100 meters from the forest area, the No Objection Certificate will be granted. 13. The learned Standing Counsel has also brought to the notice of the Court that Plot No. 964 (New Arazi No. 1043) was 11.10, has been declared as a forest land under Section 20 of the Forest Act and there is no dispute to this effect. It has not yet been established whether the area for which the petitioner has been granted lease is outside the 100 meters of the forest area or not. In such a way Condition No. 13 has been put in the agreement, which has been executed between the parties that unless and until the No Objection Certificate" is issued in favour of the petitioner, the petitioner will not be permitted to operate the mining lease. 14. In such a way Condition No. 13 has been put in the agreement, which has been executed between the parties that unless and until the No Objection Certificate" is issued in favour of the petitioner, the petitioner will not be permitted to operate the mining lease. 14. We have heard Sri Krishna Kumar Chaurasiya, Counsel for the petitioner and Sri Alok Kumar Singh, learned Standing Counsel for the respondents. 15. From the record, it is clear that the mining lease was granted in favour of the petitioner but the same was cancelled when it is found that illegal mining is going on and the Apex Court had issued a direction to the effect that no mining lease be granted to any person if the area is within 100 meters of the forest land. In view of the aforesaid fact, the State Government had issued a direction to all the District Magistrates to demarcate the areas and no mining lease be granted in favour of anybody unless and until it is verified that the areas for which the mining lease is being granted is beyond 100 meters of the forest land. Admittedly, as required under the Rules, the No Objection Certificate" is necessary for the purposes of operation of the lease. Unless and until No Objection Certificate" is issued the mining operation cannot be permitted. From the record, it is clear that No Objection Certificate" has not yet been issued. It has also not been established from the record that the area for which the mining lease has been granted in favour of the petitioner is beyond 100 meters. 16. In such a situation, we are of the opinion, that this question can only be decided by the Director according to Rule 17 of the U.P. Minor Minerals (Concession) Rules, 1963. 17. 16. In such a situation, we are of the opinion, that this question can only be decided by the Director according to Rule 17 of the U.P. Minor Minerals (Concession) Rules, 1963. 17. In view of the aforesaid fact, we dispose of the present writ petition with an observation that in case the petitioner submits an application stating therein that the lease has been granted in favour of the petitioner is beyond 100 meters from the forest area then the mines officer or the officers who has been authorized for the purposes of survey and demarcation of the area with the help of other relevant officers decide the dispute and will demarcate the area whether the area for which the petitioner has been granted mining lease is within 100 meters of forest land or not. 18. If such application is filed by the petitioner annexing all the relevant documents and the reports before the relevant authority, the complete exercise be done by the respondents preferably within a period of three months from the date of production of the certified copy of this order. With these observations the writ petition is disposed of. There shall be no order as to costs. ————