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2010 DIGILAW 726 (HP)

VIJAY KUMAR v. STATE OF H. P.

2010-04-09

DEEPAK GUPTA, SANJAY KAROL

body2010
JUDGMENT Deepak Gupta, J.(Oral)-This writ petition is directed against the order dated 24.12.2009 passed by the State Geologist, Himachal Pradesh whereby the mining lease granted in favour of the petitioner permitting him to extract minor minerals from Khasra Numbers 1114/1, 1681 and 1685, measuring 8-02-98 Hects. in Mauza Lambagaon has been suspended indefinitely. 2. The undisputed facts are that the petitioner was granted mining lease for a period of five years for the purpose of installation of a stone crusher. After he was granted the mining lease a Public Interest Litigation was filed wherein it was alleged that the codal formalities had not been completed in accordance with law. During the pendency of the CWP No. 933 of 2005 stay order was granted restraining the petitioner from commissioning his stone crusher. This stay order was vacated on 6.1.2006 after the Deputy Commissioner, Kangra filed an affidavit stating that the petitioner had fulfilled all the requisite formalities for the grant of the lease. The writ petition was accordingly disposed of. 3. Thereafter, the petitioner approached the Electricity Board for the power supply connection but this was not granted to him on the ground that ‘No Objection Certificate’ from the residents of the area was not filed. The petitioner again had to approach this Court by way of CWP No. 334 of 2006 which petition was allowed on 28.7.2006 and it was directed that the power supply be restored to the stone crusher of the petitioner. During the pendency of this Writ Petition another objection was raised that it is not clear whether the mining area falls in one Mohal or two Mohals. This matter was dealt by the Court and it was directed that the settlement authority shall demarcate the land and the petitioner agreed to abide by the final report of the demarcation. 4. Thereafter on 2.8.2008 the mining lease of the petitioner was suspended on the ground that the ‘No Objection Certificate’ given by the Gram Panchayat was a fraudulent document. Again the petitioner approached this Court by way of CWP No. 1689 of 2008. 5. This petition was disposed of with the direction that in case fresh ‘No Objection Certificate’ given during the pendency of the petition is found to be genuine by the department then the petitioner would be permitted to run his stone crusher. Again the petitioner approached this Court by way of CWP No. 1689 of 2008. 5. This petition was disposed of with the direction that in case fresh ‘No Objection Certificate’ given during the pendency of the petition is found to be genuine by the department then the petitioner would be permitted to run his stone crusher. According to the petitioner despite the said certificate being found to be genuine he was not granted permission to carry out the mining activities and therefore he filed Contempt Petition No. 172 of 2009 in this Court. During the pendency of this Contempt Petition on 22.12.2009 the State Geologist passed an order which reads as follows: “The Hon’ble HIMACHAL PRADESH HIGH COURT vide its order dated 2.9.2009 in C.W.P. No. 1689/2008 titled as Sh. Vijay Kumar Vs. State of H.P. & Others has directed the State Geologist, Himachal Pradesh that if the Certificate dated 8.10.2008 issued by the Gram Panchayat, Lambagaon is found genuine, then the Petitioner may be allowed to carry mining activities subject to fulfillment of conditions indicated therein. The mining lease granted in favour of Sh. Vijay Kumar over Khasra Numbers 1114/1, 1681, 1685 measuring 8-02-98 Hects in Mauza Lambagaon was suspended on 2.8.2008 on the reason that consent of the Gram Panchayat which was the one of the basis of the grant of mining lease was found fake. The Gram Panchayat has issued fresh resolution dated 8.10.2008 for the grant of mining lease over above khasra numbers. The Certificate issued on 8.10.2008 by the Gram Panchayat has been found genuine. Therefore, in compliance to the order of the Hon’ble High Court of H.P., the undersigned after taking into consideration the genuinity of Certificate issued by the Gram Panchayat Lambagaon on 8.10.2008, the suspension order of the mining lease over an area measuring 8-02-98 Hects. issued on 2.8.2008 is hereby revoked and registration of the stone crusher withdrawn on 19.2.2009 is also restored with immediate effect.” 6. Two days later another order was passed again suspending the mining operations and the relevant portion of the order reads as follows: “WHEREAS a mining lease was granted in favour of Sh. Vijay Kumar, S/o Sh. issued on 2.8.2008 is hereby revoked and registration of the stone crusher withdrawn on 19.2.2009 is also restored with immediate effect.” 6. Two days later another order was passed again suspending the mining operations and the relevant portion of the order reads as follows: “WHEREAS a mining lease was granted in favour of Sh. Vijay Kumar, S/o Sh. Sher Singh, Resident of V.P.O. Tiara, Tehsil & District Kangra, H.P. comprising Khasra Numbers 1114/1, 1681, 1685 measuring 8-02-98 Hects in Mauza Lambagaon on 9.6.2005 for a period of 5 years w.e.f. 10.8.2005 to 9.8.2010 for the installation of stone crusher. The lease holder was to carry out mining operation in the leased area as per provisions of H.P. Minor Minerals (Concession) Revised Rules, 1971 and in accordance with the terms and conditions of the lease deed executed between the parties on 10.8.2005. AND WHEREAS, Sh. Vijay Kumar, the lease holder was involved in unscientific mining and has done digging in the river bed upto a depth of 5 to 6 feet as had been reported by the Sub Divisional Magistrate, Jaisinghpur vide letter dated 3.12.2009 and also by the Mining Officer, Kangra at Dharamshala vide letter dated 13.2.2009 and thereafter reported by the Sub Divisional Magistrate, Jaisinghpur from time to time and leading to the damage of environment and ecology of the area. AND WHEREAS, Sh. Vijay Kumar had been found engaged in illegal and unscientific mining which is a violation of H.P. Minor Minerals (Concession) Revised Rules, 1971 and violation of terms and conditions of the lease deed. The Sub Divisional Magistrate, Jaisinghpur vide letter dated 9.11.2009 has also informed that the lease holder has collected/stacked huge quantity of minerals illegally extracted at the crusher site. The Sub Divisional Officer (Civil), Jaisinghpur vide his letter dated 21.11.2009 has again informed that Sh. Vijay Kumar has stacked huge quantity of illegally extracted material and have started operation of the stone crusher illegally. AND WHEREAS, the lease holder Sh. Vijay Kumar was not to undertake mining operation during suspension of the lease period w.e.f. 2.8.2008 and to do crushing operation when the H.P. Pollution Control Board had withdrawn the consent to operate the stone crusher vide its letter No. PCB(260)Vijay Stone Crusher Lambagaon/Kangra/2009-25976-83 dated 13.3.2009. AND WHEREAS, the lease holder Sh. Vijay Kumar was not to undertake mining operation during suspension of the lease period w.e.f. 2.8.2008 and to do crushing operation when the H.P. Pollution Control Board had withdrawn the consent to operate the stone crusher vide its letter No. PCB(260)Vijay Stone Crusher Lambagaon/Kangra/2009-25976-83 dated 13.3.2009. From the reports being received from the Sub Divisional Magistrate, Jaisinghpur regarding unscientific and illegal mining which will further lead to damage the environment and ecology, it is expedient that some urgent pre-emptive action is taken to stop further degradation of the area. Therefore, taking into consideration, the violation of the H.P. Minor Minerals (Concession) Revised Rules, 1971 and clause 8, 10 & 13(b) of the terms and conditions of the lease deed for indulging in illegal and unscientific mining leading to the degradation of environment and ecology of the area, not erecting proper boundary pillars and also operating the stone crusher without having valid consent to operate the stone crusher from H.P. State Pollution control Board, the mining operation in the leased area granted on 9.6.2005 for a period of 5 years up to 9.8.2010 is hereby suspended with immediate effect till Sub Divisional Magistrate, Jaisinghpur certifies that the damage done to the leased area have been rectified to his satisfaction and the area is fit for future mining.” 7. This writ petition is directed against the aforesaid order. 8. The petitioner had also filed petition No. 2559/2009 when the permanent registration to run the stone crusher was withdrawn vide order dated 1.9.2009. Since the order was revoked vide order dated 22.12.2009 the said petition was withdrawn. 9. The stand of the State is that the petitioner is indulging in illegal mining and had dug pits and stacked lot of material which he had excavated when the mining lease was suspended and therefore he is guilty of violating the terms and conditions of the mining lease and provisions of the H.P. Minor Minerals (Concession) Revised Rules, 1971. It is also alleged that the petitioner operated the stone crusher during the period the Pollution Control Board had withdrawn consent to run the stone crusher vide order dated 13.3.2009. 10. We have heard Sh. Sandeep Sharma, learned Counsel for the petitioner and Sh. Vivek Thakur, learned Addl. Advocate General on behalf of the respondents-State. 11. The order dated 24.12.2009 cannot be sustained under any circumstances. 10. We have heard Sh. Sandeep Sharma, learned Counsel for the petitioner and Sh. Vivek Thakur, learned Addl. Advocate General on behalf of the respondents-State. 11. The order dated 24.12.2009 cannot be sustained under any circumstances. We are constrained to observe that the order smacks of mala fides. It is apparent that somebody in the department is out to ensure that the petitioner’s stone crusher does not function at all. 12. When reply was filed to this petition no letter dated 3.12.2009 was produced though the impugned order of suspension makes reference to a letter dated 3.12.2009. However, what has been produced on record is letter dated 3.2.2009. It is thus obvious that date 3.12.2009 mentioned in the third line of the second paragraph of the impugned order is incorrect. 13. It is obvious that reports on the basis of which this suspension order was passed were issued in February and March, 2009. Why were these facts not brought to the notice of the Court in the previous petition which was admittedly pending till 2.9.2009? Why was no notice given to the petitioner of the alleged irregularities committed by him? Since the matter was pending in Court nothing prevented the department from giving notice to the petitioner or informing the Court that the petitioner is still indulging in illegal mining and therefore his petition should be dismissed on this short ground. Even more damaging is the fact that on 22.12.2009 the same officer i.e. the State Geologist passes an order revoking the order of suspension. This Court in its order dated 2.9.2009 while disposing of CWP No. 1689 of 2008 had passed the following order: “After hearing learned Counsel for the parties, we are of the considered view that the direction may be issued to sub-serve the interest of justice that if the petitioner approaches the State Geologist, Industries Department, State of Himachal Pradesh with the certificate alleged to have been issued on 8th October, 2008 by the Gram Panchayat, Lambagaon, then the latter one shall consider the genuinety of such certificate and if the certificate in question is found to be genuine, then the petitioner may be allowed to carry out the mining activities, subject to fulfillment of the conditions indicted therein. However, it is open to the petitioner to approach this Court, if aggrieved by the decision of the State Geologist.” 14. However, it is open to the petitioner to approach this Court, if aggrieved by the decision of the State Geologist.” 14. Bare perusal of this order shows that this Court had clearly held that the petitioner would be allowed to carry out the mining activities subject to the fulfillment of the conditions contained in the mining lease. If there had been violation of the H.P. Minor Minerals (Concession) Revised Rules, 1971 then the suspension order should not have been revoked. After revoking the suspension order on 22.12.2009 the same officer within 48 hours passed another order again suspending the mining lease of the petitioner that too on the grounds which had come into existence more than nine months earlier. If for nine months the department could sleep over the matter heavens would not have fallen if notice of a week or ten days had been given to the petitioner to explain his position. 15. It would also be pertinent to mention that the State Geologist who passed these two orders himself wrote a letter dated 26.10.2009 directing that a joint inspection report be submitted to his office after re-inspection of the site by the S.D.M., Jaisinghpur, Geologist and the Mining Officer of the area concerned. This inspection committee submitted its inspection report on 30.10.2009 and the inspection report is Annexure RA-3. In this inspection report there is no reference to any illegal mining. The only dispute referred therein is with regard to the demarcation of the boundary which dispute was existing between the villagers and the petitioner. The Committee decided to re-demarcate the area and to videograph the demarcation at the expense of both the parties. Therefore, it is obvious that even when this Committee inspected the spot it did not notice any illegal mining or pits as mentioned in the earlier letters. The State Geologist has ignored this report while passing the impugned order. We are therefore of the considered opinion that the impugned order dated 24.12.2009 is totally illegal, actuated by mala fides and is therefore quashed. The petition is accordingly disposed of.