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Allahabad High Court · body

2009 DIGILAW 2025 (ALL)

KALUWA v. STATE OF U. P.

2009-05-06

ASHOK BHUSHAN, R.A.SINGH

body2009
JUDGMENT By the Court.—Heard Sri H.R. Misra, learned Senior Advocate, assisted by Sri N.L. Srivastava for the petitioner and Sri Vishnu Pratap, learned Standing Counsel on behalf of State respondents. 2. By this writ petition the petitioner has prayed for quashing the order dated 18.1.2007, passed by Divisional Forest Officer, by which order the Divisional Forest Officer has refused to issue no objection certificate for grant of mining lease with regard to plot No. 454 which was applied by the petitioner as well as the order dated 24.4.2007, passed by the State Government, by which order the State Government has held that plot No. 454 is in the nature of Forest (Van Swaroop). 3. Brief facts necessary for deciding the present writ petition are : that the petitioner made an application for grant of mining lease under Chapter II of U.P. Minor Minerals (Concession) Rules, 1963 of plot No. 454 situated at Village Visaundha, Tahsil Mau, District Chitrakoot. The availability notice for grant of mining lease under Rule 72 was issued on 7.2.2006. In pursuance of the aforesaid notice, the petitioner submitted his application for grant of mining lease in respect of plot No. 454, area 3 acres Village Bisaundha, Tahsil Mau, District Chitrakoot on 10.3.2006. After receiving the applications, reports were called from Forest Officials and ultimately the Divisional Forest Officer vide his order dated 18.1.2007 refused to issue no objection certificate for grant of mining lease to the petitioner, taking the view that the plot in question is undisputedly Vanswaroop (in the nature of forest) on the basis of an inspection made by team of the Forest Department. It appears that thereafter a joint inspection was made by the Officers of Forest Department, Revenue Department and Mines Department on 6.4.2007 and the inspection report was sent to the State Government. The State Government after noticing the joint inspection report dated 6.4.2007 issued a letter dated 24.4.2007 to the District Magistrate, Chitrakoot opining that from inspection report, it is clear that the land in question is “Vanswaroop”. The said letter was written with regard to filing of the counter affidavit in the present writ petition. A counter affidavit has been filed by the State in this petition supporting the orders impugned. 4. The said letter was written with regard to filing of the counter affidavit in the present writ petition. A counter affidavit has been filed by the State in this petition supporting the orders impugned. 4. Learned counsel for the petitioner challenging the orders impugned raised following submissions : (i) The inspection made by the team of Forest Department on the basis of which the order dated 18.1.2007 was passed by the Divisional Forest Officer as well as joint inspection dated 6.4.2007 were made without associating the petitioner hence, the principles of natural justice were violated and the said materials cannot be relied for rejecting the claim of the petitioner. (ii) Even from the joint inspection report dated 6.4.2007, copy of which has been filed alongwith counter affidavit as Annexure C.A. 2, it is clear that most of the trees found in the plot in question are root stocks and shrubs hence, they are not to be taken into consideration while determining the nature of forest. Learned counsel for the petitioner has placed reliance on the letter of the Chief Conservator of Forest dated 20.12.2007, copy of which has been filed as Annexure-2 to the rejoinder affidavit, in which a recommendation has been made that while computing the number of trees, shrubs and root stocks should not be included. 5. Shri Vishnu Pratap, learned Standing Counsel submits that after application is made by the applicant for grant of mining lease, it is open for the District Magistrate to get inquiries conducted and obtain such report as may be required and at that stage, it is not necessary to associate the petitioner and the petitioner has no right to be allowed to participate in the joint inspection hence, there is no violation of principles of natural justice. It is further submitted that the report dated 6.4.2007 clearly opines that plot in question is Vanswaroop. He submits that at the relevant time, inspection was made, the circular dated 4.10.2004 issued by Principal Chief Conservator of Forest was in force which clearly provides that root stocks and shrubs have also to be added in number of trees. He further submits that letter on which reliance has been placed by the petitioner dated 20.12.2007 is only recommendation and no material has been brought in the writ petition that the said recommendation has been accepted by the State Government on the said recommendation. He further submits that letter on which reliance has been placed by the petitioner dated 20.12.2007 is only recommendation and no material has been brought in the writ petition that the said recommendation has been accepted by the State Government on the said recommendation. He further submits that the petitioner cannot rely on the recommendation dated 20.12.2007, which is subsequent in time and has not been acted upon. 6. We have considered the submissions of learned counsel for the parties and have perused the record. 7. Chapter III of the U.P. Minor Minerals (Concession) Rules, 1963 governs the provisions for grant of mining lease. Rule 7 provides for enquiry and report, which is quoted herein below : "7. Enquiry and report.—The District Officer shall, unless he is authorised to grant or renew the mining lease, cause an enquiry to be made into all relevant matters and, within two months from the date of receipt of application of mining lease, forward two copies of the application alongwith his report to the State Government or to such other authority as the State Government may have authorised in this behalf.” 8. The application for grant of mining lease is submitted under Rule 6. The Rule 7 as quoted above permits the District Officer to cause an enquiry to be made into all relevant matters within two months from the date of receipt of the application. When the rule empowers the District Officer to conduct an inquiry, it fully empowers the District Officer to obtain such report and inquiry as may be required. The Forest Conservation Act, 1980 and the judgment of the Apex Court in the case of T.N. Godavarman Thirumulkpad v. Union of India, AIR 2000 SC 1636 , lays down that the forest area cannot be used for any non-forest activity. 9. In view of the aforesaid pronouncement of the Apex Court, it was incumbent upon the District Officer to make an enquiry as to whether the area applied is in the nature of forest or not. The Collector sent papers to the Forest Officer for conducting the inquiry. The Forest Officer after receiving the relevant papers with regard to grant of mining lease of plot No. 454, got the inquiry conducted and inspection was made on 11.1.2007 of the plot in question. The Collector sent papers to the Forest Officer for conducting the inquiry. The Forest Officer after receiving the relevant papers with regard to grant of mining lease of plot No. 454, got the inquiry conducted and inspection was made on 11.1.2007 of the plot in question. The provisions of the Rules do not indicate that at the stage when an inquiry is to be conducted by the District Officer with regard to mining lease, the applicant has to be associated. The applicant after submission of his application under Rule 6 does not come into picture, while conducting the inquiry or taking decision with regard to grant of mining lease. The submission of learned counsel for the petitioner that the petitioner was required to be associated when inspection of the plot was made does not appeal to us, neither scheme of the Rule indicates any such procedure nor the petitioner had indicated that any right of the petitioner has been affected by not calling upon him at the time of inspection. Further, with regard to inspection dated 6.4.2007 also it was permissible for the District Officer to get the plot re-inspected by team of the Forest Department, Revenue Department and Mining Department. The order of the State Government dated 24.4.2007 was infact an order accepting the joint inspection report approving the view that the plot in question is “Van Swaroop”. The first submission of the petitioner that principles of natural justice have been violated thus, cannot be accepted. 10. Now the second submission of learned counsel for the petitioner that on the basis of the inspection held on 6.4.2007, the land cannot be treated as Van Swaroop needs to be considered. From the materials on record, it is clear that the application was made for grant of mining lease on 10.3.2006. The application was forwarded to the Divisional Forest Officer and Divisional Forest Officer after getting the plot inspected passed the order dated 18.1.2007, refusing to issue no objection certificate. It was in the domain of the Divisional Forest Officer to be satisfied as to whether the land applied is fit to be granted for mining lease. When the Divisional Forest Officer after inspection took the view that the land in question is undisputedly in the nature of forest, no error was committed by him in refusing to grant mining lease. 11. When the Divisional Forest Officer after inspection took the view that the land in question is undisputedly in the nature of forest, no error was committed by him in refusing to grant mining lease. 11. Now coming to the subsequent order of the Government dated 24.4.2007, a perusal of which indicates that the said order was issued on the basis of joint inspection report dated 6.4.2007. The submission on which much reliance has been placed by learned counsel for the petitioner is the recommendation dated 20.12.2007. There are two reasons on the basis of which the recommendation dated 20.12.2007 does not help the petitioner. Firstly the inspection was made on 6.4.2007 and at the time of inspection, the Circular of the Principal Conservator of Forest dated 4.10.2004 was in force. The said circular provided following guidelines for determination : “All such areas should be identified as forest areas (minimum number of trees and minimum areas shown against each region/uncultivated, perennial trees, shrubs or vegetative species are growing or their root stock/regeneration is present in the following way : Region Hill Area in Hect. No. of trees Comments per hectare Hill 20 100 Sensitive to be seen in view of slope. Watershed areas of water resources, soil erosion, land slide and wildlife (definition as per Wildlife (Protection) Act, 1972. 2 50 As above and available root stock and shrubs will also be estimated for the number of trees.” 12. The joint inspection report which was made on 6.4.2007 was in full consonance with the Circular dated 4.10.2004 and joint inspection team after noticing that there are large number of trees have noticed the numbers of existing trees hence, the joint inspection report cannot be faulted with. The circular issued by the Principal Chief Conservator of Forest dated 4.10.2004, clearly provides that number of stock roots and shrubs shall also be included, while calculating the number of trees, thus the joint inspection report cannot be faulted with on the said ground. The recommendation dated 20.12.2007 on which much reliance has been placed was not even in existence when the joint inspection was made. Further, no material has been brought on record that the said recommendation has been accepted by the State Government and has been directed to be implemented thus, on the basis of the recommendation dated 20.12.2007, the joint inspection report cannot be faulted with. 13. Further, no material has been brought on record that the said recommendation has been accepted by the State Government and has been directed to be implemented thus, on the basis of the recommendation dated 20.12.2007, the joint inspection report cannot be faulted with. 13. There is one more reason due to which the view taken by the respondents that the land in question is Vanswaroop cannot be faulted with. From perusal of the Joint inspection report, it is clear that in three acres area there are 637 trees and the name of the trees are mentioned in the joint inspection report by referring to their specific names. When in three acres land there are 637 trees then according to the recommendation which has been relied, the requirement of only 100 trees in three acres of land is clearly fulfilled. Even if last line of the report is accepted that most of the trees are shrubs and root stock then excluding the majority of numbers atleast 100 trees shall still be left to fulfil the requirement of having only 100 trees in three acres of land. Due to this reason also, the report cannot be faulted with. No ground has been made out to interfere with the impugned orders. 14. The writ petition lacks merit and is dismissed. ———