Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1097 (ALL)

Om Prakash v. State of U P.

2016-03-29

D.Y.CHANDRACHUD, YASHWANT VARMA

body2016
JUDGMENT This public interest litigation pertains to mining which is being carried out by the fifth respondent over Plot No 246/1 (Lot No 9) of Village Gurdah, Tehsil Robertsganj, District Sonebhadra. 2. By a notification of the State Government dated 10 August 1982 issued in exercise of the powers conferred by Section 18 of the Wild Life (Protection) Act, 1972, the area of Kaimur Wild Life Sanctuary was notified to comprise of approximately 501 sq kilometers. Among the forest blocks covered by the notification is Gurdah of which an area admeasuring 925.05 hectares has been notified. A copy of the notification dated 10 August 1982 has been annexed to the affidavit of compliance filed by the State and bears a noting of having been published in the State Gazette on 16 October 1982. 3. When the petition came up before this Court, a direction was issued on 23 February 2016 to the Collector and District Magistrate, Sonebhadra to carry out an inspection of the site together with Mines Officer and the Divisional Forest Officer and to ensure that no illegal mining is carried out. In pursuance of the direction of this Court, the Collector and District Magistrate filed a compliance report on 16 March 2016 stating that the fifth respondent, to whom a mining lease had been granted for the period between 12 March 2001 and 11 March 2004, operated the lease for one year three months and seventeen days and mining operations had been stopped on the objection of the Forest Department. The State Government by an order dated 24 December 2013 has apparently granted the "obstructed period" to ten persons in Village Gurdah. The said order was withdrawn when the Forest Department raised an objection. The State Government thereafter proceeded to take advice from its Law Department and allowed a representation dated 18 June 2015 of the fifth respondent, following which the District Magistrate permitted the fifth respondent to carry out mining operations over Plot No 246/1. 4. The said order was withdrawn when the Forest Department raised an objection. The State Government thereafter proceeded to take advice from its Law Department and allowed a representation dated 18 June 2015 of the fifth respondent, following which the District Magistrate permitted the fifth respondent to carry out mining operations over Plot No 246/1. 4. The Divisional Forest Officer by a communication dated 1 March 2016, a copy of which is annexed as Annexure CA-8 to the compliance report, has drawn the attention of the Collector, Sonebhadra to his earlier communications dated 26 March 2015, 25 May 2015 and 25 November 2015 and while reiterating them observed that the lease in respect of Plot No 246/1 falls within a distance of one kilometer from the Kaimur Wild Life Sanctuary. 5. Despite this, the Collector, in his affidavit dated 16 March 2016, sought to raise a grievance on the ground that the petitioner had not annexed any document which, in fact, indicated whether the proceedings under Sections 18 to 26 of the Act had been completed. A Division Bench of this Court in its further directions dated 17 March 2016 found it surprising that the District Magistrate, as a responsible officer of the State, has not been able to conclusively state whether the area was declared as a Wild Life Sanctuary and had chosen to pass the burden on the petitioner to demonstrate the present position. 6. The attention of the Court was drawn to the letter of the Divisional Forest Officer dated 1 March 2016 clearly stating that the area in respect of which mining lease has been granted, falls within one kilometer of the Wild Life Sanctuary. In pursuance of the directions which were issued on 17 March 2016, the Collector has filed an affidavit specifically clarifying that a notification was issued on 10 August 1982 governing an area of 501 sq kilometers of the Kaimur Wild Life Sanctuary. The affidavit of the Collector, however, purports to state that proceedings under Sections 19 to 26 are still to be completed. This aspect has been dealt with in a detailed judgment of a Division Bench of this Court in Kamla Kant Pandey Vs Prabhagiya Van Adhikari, Sonebhadra2. The affidavit of the Collector, however, purports to state that proceedings under Sections 19 to 26 are still to be completed. This aspect has been dealt with in a detailed judgment of a Division Bench of this Court in Kamla Kant Pandey Vs Prabhagiya Van Adhikari, Sonebhadra2. The Division Bench noted that when the notification dated 10 August 1982 was issued by the State Government for comprising the areas within the Kaimur Wild Life Sanctuary, Section 18 of the Act, as it then stood, empowered the State Government to declare any area to be a sanctuary, provided it considers that it was, inter alia, of ecological significance. The amendments to Section 18 and to several other provisions of the Act were brought into force by Amending Act 44 of 1991. The Division Bench in its judgment issued the following directions: "...Since the notification of 1982 has been issued by the State Government, it is the State Government which has to ascertain the boundaries of the sanctuary as defined under the said notification. However, this exercise shall be undertaken by the State Government in consultation with the Chief Wild Life Warden and the Advisory Board in this regard. This direction is being issued because of the reason that the boundaries of a declared sanctuary cannot be altered except with the prior concurrence of the Central Government as is evident from the provisions of Section 35 of the Wild Life (Protection) Act. The State Government and the other authorities under the Wild Life (Protection) Act shall abide by the boundaries under the notification in view of the provisions of sub-clause (2) of Section 18 of the Wild Life (Protection) Act, 1972 read with the explanation thereunder..." 7. Though, well over a period of eleven years have elapsed since the judgment of the Division Bench, the State Government, it is regrettable, has failed to implement these directions. 8. Prima facie, at this stage, there is sufficient material on the record to indicate that the mining operations which are being carried out by the fifth respondent are within a distance of one kilometer of the Kaimur Wild Life Sanctuary as covered by the notification dated 10 August 1982. 8. Prima facie, at this stage, there is sufficient material on the record to indicate that the mining operations which are being carried out by the fifth respondent are within a distance of one kilometer of the Kaimur Wild Life Sanctuary as covered by the notification dated 10 August 1982. In the order dated 4 August 2006 in T N Godavarman Thirumulpad Vs Union of India3, the Hon'ble Supreme Court specifically directed that temporary working permits shall be granted only where the pre-conditions set out in the order are fulfilled. Among them, are the conditions that (i) the mine should not be located inside any National Park/Sanctuary notified under Sections 18, 26-A or 35 of the Act; and (ii) the grant of permit should not result in mining activities within the safety zone around areas of the sanctuary to be maintained at a radius of one kilometer. 9. Prima facie, this prohibition would stand breached, particularly having regard to the clarifications which have repeatedly been issued by the Divisional Forest Officer, the last of them being on 1 March 2016. In the circumstances, pending further orders, we issue an order of prohibition restraining the fifth respondent from carrying out any mining activities in pursuance of the decision of the State Government to grant it the "obstructed period of lease" in respect of Plot bearing No 246/1 of Village Gurdah, Tehsil Robertsganj, District Sonebhadra. 10. We direct the proceedings to be listed before this Court in the week commencing 17 May 2016. 11. In the meantime, we direct the State Government to file an affidavit of an officer not below the rank of Secretary, explaining what steps have been taken in pursuance of the directions of the Division Bench of this Court in Kamla Kant Pandey's case.