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2012 DIGILAW 1082 (PAT)

Diwakar Chandra Dubey v. State of Bihar

2012-08-06

V.N.SINHA

body2012
Oral ORDER Heard learned counsel for the petitioner and the State. 2. Petitioner is a lessee of Group-I sand ghats under Bihar Minor Mineral Concession Rules, 1972 for 2010-12 in the light of the auction held in presence of Collector, Banka on 10.02.2010 which was communicated to the petitioner under instructions contained in letter no.630 dated 11.02.2010. He has filed this writ petition challenging the order bearing Memo No.1126 dated 15.10.2011, Annexure-6 passed by the Collector, Banka limiting extraction of sand by the petitioner to the extent of 1000 cubic feet/day with further direction to transport the extracted sand in six wheel trucks. Such order has been passed with reference to condition no.10(12) of the settlement order dated 11.02.2010 which empower the Collector to pass any order curtailing the leasehold rights in public interest. It appears from perusal of the impugned order that in order to save the ecology as also to protect the interest of the farmers who irrigate their field by drawing water from river Chanan restriction in extraction of sand by the lessee petitioner to the extent of 1000 cubic feet/day has been imposed. It further appears that the aforesaid order of the Collector was challenged by the petitioner before the Mines Commissioner who also affirmed the same under order bearing Memo No.24 dated 3.1.2012, Annexure-8 with reference to Clause-15(xii) of the instructions of the Government contained in notification bearing Memo No.2438 dated 31.12.2009 which empowered the Collector to pass any order in public interest curtailing the lease hold rights. By filing this writ petition petitioner has questioned the validity of orders dated 15.10.2011, 3.1.2012, Annexures-6, 8. 3. It is submitted on behalf of the petitioner that Collector, Banka has based his findings for restricting the leasehold rights of the petitioner on the report of the District Agriculture Officer, Sub-Divisional Officer and Additional Collector, Banka dated 27.07.2011 whereunder it has been stated that on account of sand mining by the petitioner in the riverbed of Chanan river villagers of Chir, Sukhnia, Rajdah are not able to irrigate the field/crop leading to public hue and cry and appreciating such public hue and cry it is necessary in public interest to restrict extraction of sand by the petitioner from the leasehold area. Earlier similar report was submitted by the Additional Collector, Banka, Executive Engineer, Irrigation Division, Bhagalpur and the Mines Inspector, Banka which was forwarded by the Collector, Banka to the Government under letter no.945 dated 3.5.2010 with a request to cancel the leasehold rights of the petitioner. Similar recommendation was also made by the Commissioner, Bhagalpur Division under letter no.228 dated 5.5.2010, which fact is also evident from first paragraph of the impugned order of the Collector, Banka. It is further submitted that without awaiting the orders of the Government over the earlier recommendations made by the Collector, Banka under letter dated 3.5.2010 and Commissioner, Bhagalpur Division under letter dated 5.5.2010 Collector, Banka obtained subsequent report from the Additional Collector, District Agriculture Officer, Sub-divisional Officer, Banka dated 27.07.2011 and passed the impugned order restricting extraction of sand by the petitioner to the extent of 1000 cubic feet/day as according to report dated 27.07.2011 unlimited extraction of sand by the petitioner is causing problem for the villagers of the aforesaid three villages in irrigating their land. Collector having not been satisfied with the earlier report of the Additional Collector, Executive Engineer and the Mines Inspector forwarded the report for appropriate orders by the Government under letter dated 3.5.2010 but without receiving any order from the Government subsequently changed his mind on the basis of the subsequent report of the Additional Collector, District Agriculture Officer, Sub-divisional Officer, Banka dated 27.07.2011 and passed the impugned order restricting extraction of sand by the petitioner to the extent of 1000 cubic feet/day. From the report of the Additional Collector, District Agriculture Officer, Sub-Divisional Officer, Banka dated 27.07.2011, it does not appear that experts in the subject of ecology, hydrology ever considered whether extraction of sand by the petitioner in the riverbed is causing ecological, irrigational problem to the villagers particularly when Collector himself was not satisfied with the earlier report of the Additional Collector, Executive Engineer and Mines Inspector and forwarded the report to the Government for consideration under letter dated 3.5.2010. In such circumstances, I am of the view that the impugned order dated 15.10.2011 Annexures-6 restricting extraction of sand by the petitioner and order dated 3.1.2012, Annexure-8 affirming the order of the Collector has been passed without awaiting the Government orders on the recommendation dated 3, 5.5.2010 made by Collector, Banka/Commissioner, Bhagalpur as also without considering the loss caused to the petitioner, loss of royalty to the State with a view to curb public hue and cry, which is arbitrary and violative of Article 14 of the Constitution and is, accordingly, quashed. In my view, public hue and cry can never be the sole criteria to judge the public interest involved in the subject matter of consideration. It is, however, submitted by the counsel for the State that C.W.J.C. No.2441 of 2011 a P.I.L. is pending in the High Court for a direction to the State authorities to contain extraction of sand from sand ghats settled on the banks of river Chanan, as such, quashing of impugned orders, Annexures-6, 8 by me shall be subject to the result of C.W.J.C. No.2441 of 2011. 4. With the observations and direction above, the writ petition is allowed.