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2012 DIGILAW 546 (MP)

Anil Kumar Sahu v. Shivshakti and Co. Gwalior

2012-05-17

BRIJ KISHORE DUBE, S.K.GANGELE

body2012
JUDGEMENT S.K. Gangele J.- 1. This appeal has been filed by the appellant against the order dated 07-10-2006 passed by the learned Single Judge in Writ Petition No. 1941/2003. 2. The respondent No.1 was granted lease vide order dated 16-05-2001 for a period of ten years for extraction of flag stones area 4 hectare of Survey Nos. 953 and 954 situate at village Jakhoda, Tehsil and District, Gwalior. The present appellant, also submitted an application for grant of lease. His application was rejected. 3. One, Awadesh Tiwari filed a Public Interest Litigation before this Court, which was registered as Writ Petition No. 861/2001. This Court vide order dated 23-01-2002 disposed of the writ petition with a direction to the Collector, Gwalior to take appropriate steps in view of the judgment of Hon’ble Supreme Court passed in the case of T.N. Godavarman Thirumulkpal v. Union of India (1997) 2 SCC 267 and if any lease was granted contrary to the direction issued by the Hon’ble Supreme Court, that be cancelled. 4. The Director, Department of Geology and Mining had taken the matter in suo motu revision in regard to grant of lease to the respondent No.1 and thereafter, the lease granted in favour of the respondent No.1 was cancelled by the Director, that was challenged by the respondent No.1 before the writ Court. The writ Court observed that the lease of the land which was granted in favour of the respondent No.1 was a forest land, hence, no lease could be granted in favour of the respondent No.1. In the aforesaid order, the Court also observed that the lease granted in favour of the present appellant, is also illegal and contrary to law. 5. Against the aforesaid order, the appellant filed an appeal, that was dismissed by the Division Bench of this Court. Thereafter, a Special Leave Petition was filed by the present appellant before the Hon’ble Supreme Court, which was registered as S.L.P. (Civil) No(S). 1365-1366/2009. The Hon’ble Supreme Court disposed of the SLP with the following observations and remanded the matter back to this Court, after quashing the order passed by the Division Bench of this Court:- 7. Thereafter, a Special Leave Petition was filed by the present appellant before the Hon’ble Supreme Court, which was registered as S.L.P. (Civil) No(S). 1365-1366/2009. The Hon’ble Supreme Court disposed of the SLP with the following observations and remanded the matter back to this Court, after quashing the order passed by the Division Bench of this Court:- 7. “We have carefully considered the order of the Division Bench of the High Court and we find that the order does not deal with the most relevant and important aspect as to whether or not part of Survey No. 954 of which mining lease has been given to the appellant falls within a forest land as laid down by this Court in T.N. Godavarman Thirumulkpad (Supra) The Division Bench ought to have gone into this question as we find that in survey resport of Divisional Forest Office, Gwalior, dated May 22.2001, as regards Survey No.954 nothing is stated that the land has 200 or more trees standing thereon. The report dated May 22, 2001 basically deals withs Su rvey No.953 and records that Survey No. 954 is at the distance of 900 ft. from the boundary of forest and then gave the details of Survey No.953. 8. On the short ground of non-consideration of the most vital aspect as to whether part of Survey No. 954 is a forest land or not, the matter has to go back to the Division Bench for re-hearing and reconsideration. 9.Consequently, the Appeals are allowed as indicated above. Writ Appeal No. 572 of 2006 is restored to the file of the High Court of Madhya Pradesh, Gwalior Bench, for fresh hearing and decision in accordance with law. No cost. 10. The parties shall appear before the High Court of Madhya Pradesh, Gwalior Bench, on February 27, 2012.” 6. The Hon’ble Supreme Court has observed that the present appellant was granted lease of the land of Survey No.954 situate at village Jakhoda, Tehsil and District and it was obligatory on the part of the Division Bench to consider the fact that whether the Survey No.954 is a forest land or not? Whether 200 or more trees have been standing over the land of Survey No.954 or not ? Whether the land of Survey No. 954 is at the distance of 900 ft. from the boundary of the forest or not ? 7. Whether 200 or more trees have been standing over the land of Survey No.954 or not ? Whether the land of Survey No. 954 is at the distance of 900 ft. from the boundary of the forest or not ? 7. We have perused the record of the writ Court. In the record there is a letter dated 10-04-2003 of the Conservator of Forest, Gwalior. In this letter, nothing has been mentioned about the land of Survey No.954. There is another letter dated 21-08-2001 written by the Conservator of Forest, Gwalior to the Collector, District, Gwalior, In the aforesaid letter, it is mentioned that an enquiry in regard to land bearing Survey Nos.953 and 954, area 4 hectare situate at village Jakhoda was conducted by the Deputy Conservator of Forest, Ghatigaon and he in his enquiry report, stated that there are 200 more tree per hectare standing over the land. Copy of the Panchanama along with the enquiry report has also been filed. In regard to Survey No.954, it is mentioned in the Panchanama that there are some trees and bushes standing over the land of Survey No.954. Except this, there is no fact mentioned that how many trees had been standing over the land of aforesaid survey number and whether it was a part and parcel of the forest land. However, in the report submitted by the Duputy Conservator of Forest, Ghatigaon, it is mentioned that there are number of trees standing over the land of Survey No.953. In the additional return filed by the State before the writ Court, it is mentioned that Survey No.954 is a revenue land and the mining lease of four hectares of land out of the aforesaid survey number, had been granted in favour of the present appellant and the area for which the lease of Survey No.954, was granted in favour of the present appellant, is quite different. Another letter dated 22-05-2001 written by the D.F.O, Gwalior, copy of which has been filed as Annexure R/1 before the Writ Court. It is mentioned in the letter that both Survey Nos. 953 and 954 are the revenue land as per the record of the Revenue Department and the land of Survey No.954 is situated more than 900 ft. away from the boundary of the forest. 8. It is mentioned in the letter that both Survey Nos. 953 and 954 are the revenue land as per the record of the Revenue Department and the land of Survey No.954 is situated more than 900 ft. away from the boundary of the forest. 8. From the perusal of the record and the documents produced before the writ Court, it is clear that except Panchnama, there is no mention of the fact that there were trees over the land of Survey No.954 which was granted on lease to the appellant. In Panchnama, it is only mentioned that there were some trees and bushes. On the aforesaid finding, it could not be held that the trees were standing over the portion of the land. Contrary to this, there is a definite pleading on the part of the State in the writ petition that the land which was granted on lease in favour of the appellant, was a revenue land and it was far behind the distance of 900 ft. from the boundary of the forest land. 9. In such circumstances, in our opinion, the learned Single Judge has committed an error of law in observing that the mining lease granted in favour of the present appellant was also illegal. Hence, the appeal filed by the appellant is allowed. The impugned order dated 07-10-2006 passed by the learned Single Judge in Writ Petition No. 1941/2003 is hereby quashed in regard to present appellant. No order as to costs.