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Madhya Pradesh High Court · body

2009 DIGILAW 1247 (MP)

Harsh Barua v. State of M. P.

2009-11-05

S.K.GANGELE

body2009
Judgment ( 1. ) Petitioner has filed this petition challenging the order Annexure P-1 dated 3rd September 2008 passed by Collector, district Morena.By the aforesaid order the Collector has cancelled the mining lease of the petitioner. ( 2. ) The petitioner had been granted a mining lease of Survey Nos. 1110 and 1112, having area 0.629 hectare, situated at village, Padawali, district Morena for the purpose of extraction of flag-stone from the quarry. The lease was for a period of ten years. Petitioner also executed an agreement to this effect. When petitioner had been carrying mining operations, the Superintendent, Archaeological Survey of India wrote a letter to the Collector and objected about the mining operations conducted by petitioner on the ground that due to mining operations by the petitioner there was a danger to the archaeological sites situated at village Padwali of within 500 metres of the mine of the petitioner. On the basis of aforesaid objection a show cause notice was issued to the petitioner. After considering the reply filed by the petitioner vide order dated 4.5.2007. Annexure P-3 the mining lease of the petitioner was cancelled. Thereafter, petitioner filed a writ petition before this Court challenging the order dated 4.5.2007 passed by the Collector. This Court vide order dated 6.5.2008 passed in Writ Petition No. 5543/2007, quashed the order passed by the Collector and remanded the case back to the Authority with a direction to pass appropriate orders. Thereafter, by the impugned order the mining lease of the petitioners has again been cancelled. ( 3. ) Learned counsel for petitioner has submitted that cancellation of mining lease of the petitioner is illegal and is against the law. No danger has been caused to the protected monuments as claimed by Archaeological Department and the petitioner has not been using any explosive in mining activities, hence the impugned order is liable to be quashed. Contrary to this, learned counsel for respondents No. 1,2 and 3 have submitted that the order passed by the Collector is in accordance with law and due to mining operations there is a danger to the ancient monuments. ( 4. Contrary to this, learned counsel for respondents No. 1,2 and 3 have submitted that the order passed by the Collector is in accordance with law and due to mining operations there is a danger to the ancient monuments. ( 4. ) The Garni situated at village Padwali, district Morena has been declared as ancient and historical monuments and those archaeological sites have been declared as of National importance vide Gazette notification issued under the provisions of the Ancient and Historical Monuments and Archaelogical Sites and Remains (Declaration of National Imporatnce) Act, 1951, hereinafter referred to as the Act of 1951. Copy of the Gazette notification has been filed as Annexure R/3-1. The appropriate Government also framed Rules under the provisions of the Act of 1951, named as Ancient Monuments and Archaeological Sites and Remains Rules, 1959. hereinafter referred to as the Rules of 1959. As per Rule 33 of the Rules of 1959 no person other than an archaeological officer shall undertake any mining operation or any construction in a prohibited area, or in a regulated area except under and in accordance with the terms and conditions of a licence granted by the Director General. Apart from this, the Assistant Archaeologist of Survey, Gwalior in his letter written to the Collector, Annexure R-2 has clearly mentioned that the quarry of the petitioner is within 500 metres of the protected monuments and due to mining operations carried out by the petitioner cracks have been developed in the monuments because the petitioner has been using explosives and due to the aforesaid act there is a danger to the National monuments. ( 5. ) Respondent No. 3 along with the return has also filed photographs. From the photographs it is clear that cracks have been developed in the monuments due to mining operations carried out by the petitioner and there is a danger to the existence ofNational monuments. Rule 33 of the Rules of 1959 prohibited mining operations within the prohibited or regulated area. However, even if there is a danger to the monuments due to mining operations then also the lease could be cancelled because protection of the monument is an important act. ( 6. Rule 33 of the Rules of 1959 prohibited mining operations within the prohibited or regulated area. However, even if there is a danger to the monuments due to mining operations then also the lease could be cancelled because protection of the monument is an important act. ( 6. ) Honble the Supreme Court in Wasim Ahmed Saeed v/s Union of India and others, reported in (2002) 9 SCC 472 , restricted even the construction of shops within a distance of750 metres of the Dargah of Salim Chisthi in Agra and that restriction is a reasonable restrtiction. In the present case, it is clear from the findings recorded by the Collector and also by the Archaeological Department that due to mining operations by the petitioner in which petitioner had been using explosive, there is a danger to the National monuments. In such circumstances, the action of the Authority i.e. Collector with regard to cancellation of mining lease of the petitioner could not be said to be arbitrary or illegal. ( 7. ) Consequently, I do not find any merit in this petition. It is accordingly dismissed. No order as to cost.