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2011 DIGILAW 916 (HP)

Kundan Lal v. State of Himachal Pradesh

2011-03-04

DEEPAK GUPTA, SANJAY KAROL

body2011
JUDGMENT Deepak Gupta, J. This petition depicts a shocking state of affair where a person takes the law into his own hands and uses the process of the Court to subvert the rules and the law and carries on illegal mining activity without any permission. 2. The facts which cannot be disputed are that respondent No. 8 herein was granted mining lease for establishing a stone crusher in khewat No. 19min, khatauni No. 27, khasra No. 194/190 measuring 00-33-89 Hectares in Mohal Chaba and khewat No. 41, khatauni No. 87, khasra No. 454/451 measuring 00-82-85 Hectares in Mohal Panehra. This lease admittedly expired on 5.9.2005. 3. Case of the petitioners is that in fact respondent No. 8 did not establish the stone crusher in these two khasra numbers but encroached the forest land comprising in khasra Nos. 134/1 and 134/2 where he established the stone crusher and dharas, respectively. We are not going into this issue as to whether the petitioner had encroached upon the forest land or not since this is factually disputed by respondent No. 8 and this factual dispute cannot be decided in this petition. Furthermore, the matter regarding the eviction of respondent No. 8 from this area is pending before the appropriate authority. Therefore, we do not want to make any comments on the same. 4. The fact remains that the lease had expired on 18.1.2005 and thereafter as per the State temporary permission was granted to the petitioner to crush and lift the stock already lying at the crusher up to 5.9.2005. Therefore, respondent No. 8, at best, had legal permission till 5.9.2005. He had no permission to extract any minerals after 18.1.2005 but could have only utilized the stock already extracted up to 5.9.2005. Respondent No. 8 applied for the extension of his lease deed. Lease was not extended and the electricity connection was sought to be disconnected. 5. Respondent No. 8 filed CWP No. 218 of 2006 in this Court which was disposed of on 21.3.2006 and this Court directed the State of Himachal Pradesh to pass a speaking order on the application for grant/renewal of the mining lease filed by respondent No. 8. Lease was not extended and the electricity connection was sought to be disconnected. 5. Respondent No. 8 filed CWP No. 218 of 2006 in this Court which was disposed of on 21.3.2006 and this Court directed the State of Himachal Pradesh to pass a speaking order on the application for grant/renewal of the mining lease filed by respondent No. 8. This application filed by the petitioner therein was rejected by the Principal Secretary (Industries) to the Government of Himachal Pradesh on 4.4.2006 and the same was rejected on the ground that the area in question is forest land and no stone crushing unit could be established in forest area without the clearance of the Ministry of Environment and Forest, Government of India. 6. Thereafter the respondents wanted to disconnect the electricity connection of the petitioner and the respondent No. 8 filed CWP No. 399 of 2006 challenging the order of the Principal Secretary (Industries) and vide interim order dated 14.7.2006 this Court directed the Himachal Pradesh State Electricity Board not to disconnect the electricity connection of the petitioner therein. The main ground raised by respondent No. 8 in that petition was that the land in question has been wrongly taken to be forest land. This petition was ultimately withdrawn on 23.11.2009 with liberty reserved to respondent No. 8 to apply afresh for mining lease in terms of a fresh policy framed by the State. As per respondent No. 8 he has applied for fresh permission but the same is still under consideration. 7. The stand of the petitioners as well as the State is that under the garb of the stay order whereby the Electricity Board was restrained from disconnecting the electricity connection respondent No. 8 continued mining activity and fifteen cases of illegal mining activity and illegal transportation were detected. All of these were compounded meaning thereby that respondent No. 8 did not contest the allegations of the State and an amount of ` 81,630/- was realised from respondent No. 8. Apart from the fifteen cases which were compounded, on 27.1.2010 another case was detected and the same is pending in Court. Finally the electricity connection of respondent No. 8 crushing unit was disconnected on 29.4.2010. Apart from the fifteen cases which were compounded, on 27.1.2010 another case was detected and the same is pending in Court. Finally the electricity connection of respondent No. 8 crushing unit was disconnected on 29.4.2010. It would be pertinent to mention that when CWP No. 399 of 2006 was pending in this Court the respondent/State moved an application for eviction of the stay order and in the said application which has been annexed as Annexure P-6 to the present writ petition it was specifically mentioned that petitioner as per the electricity consumption has manufactures more than 13600 tonnes of grit by engaging in illegal mining up to 2008. Respondent No. 8 in the reply has not specifically made any reference to this annexure. His stand is that the area in question is not forest land but there is no clear cut reply with regard to the allegation that after 2005 he continued extraction of minerals and crushing thereof. 8. Mr. Deepak Kaushal, learned counsel for respondent No. 8 has raised a preliminary objection that the petitioners are inimical to him and petitioner No. 4 asked him for money and wanted to blackmail him and the petition is a result of the respondent No. 8 not succumbing to the threats of the petitioners. We are not going into the merits of this dispute raised by respondent No. 8 because of facts stated by the officials of the State duly supported by their affidavits. We find that respondent No. 8 has engaged in mining and stone crushing activity much after the lease deed had expired. Assuming that the petition is actuated by malafides the facts which have been stated by the respondent/State including the Mining Officer, Forest Officials, Pollution Control Board and the Electricity Board have to be taken into consideration. These facts clearly depict that after September, 2005 respondent No. 8 continued mining activity and even when State moved an application for vacation of stay in CWP No. 399 of 2006 it has been clearly stated that respondent No. 8 had crushed 13600 tonnes grit up to 2008 if his electricity consumption was taken into consideration. 9. This clearly shows that respondent No. 8 has no respect for the rule of law. Even today Mr. 9. This clearly shows that respondent No. 8 has no respect for the rule of law. Even today Mr. Deepak Kaushal, learned counsel for respondent No. 8 has failed to show to us any authority whereby respondent No. 8 could have extracted or crushed minerals after September, 2005. A person cannot assume that he will be granted permission. Grant of permission or extension of mining lease has to be granted by competent authority and if such permission/extension is not granted the lessee must immediately stop all mining activities. If he fails to do so he is violating the law at his own peril. 10. Here is a person who approached the court time and again and the only order passed in his favour was that the electricity connection to his stone crusher would not be disconnected. This however, did not mean, that he was given a licence to operate the stone crusher. Respondent No. 8 has totally violated the law and therefore we are compelled to pass orders which will ensure that in future he never violates law. 11. In view of the above discussion the writ petition is allowed. Respondent No. 8 is restrained from operating the stone crusher or carrying out any mining activity. Keeping in view the conduct of respondent No. 8 we direct the State Government to reject his application for renewal and ensure that he is never granted any mining lease. A person who violates law with impunity shown by respondent No. 8 has no right to get any mining lease from the Government. We further direct respondent No. 8 to pay ` 10,00,000/-(Rupees ten lacs only) as damages to the Government. The Government can recover this cost as arrears of land revenue. We further direct that the competent authority will decide the cases relating encroachment and illegal mining pending against respondent No. 8 within six months from today. Learned Advocate General shall convey these orders to all concerned. 12. The petition stands disposed of so also the pending applications, if any.