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Jharkhand High Court · body

2018 DIGILAW 930 (JHR)

Shiva Stone Chips v. state of Jharkhand

2018-04-26

RAJESH SHANKAR

body2018
ORDER : 1. The present writ petition has been field for issuance of writ of certiorari for quashing the letter/order contained in memo no 734 dated 27.4.2016 (Annexure-5 to the writ petition) whereby the petitioner has been communicate the decision of the Deputy Commissioner, Hazaribagh (respondent no. 2) regarding premature termination of lease deed of the petitioner pertaining to stone quarry situated over Mouza-Tepsa, Thana-Ichak, Thana no. 39, Khata no. 29, Plot no. 117 (Part) having an area of 21 acres on the alleged ground that the lease area of the petitioner falls within the protected forest as per notification no. C./P .F.-10166/52-19R dated 2.1.1953. 2. The factual background of the case as stated in the writ petition is that a registered lease deed dated 25.2.2010 was executed between the petitioner and respondent no. 2 for the operation of mining activities over the aforesaid leased land for the period from 21.2.2010 to 20.2.2020 i.e. for ten years Prior to grant of lease to the petitioner, required statutory clearances including the clearance from the Forest Department were obtained. which would be evident from letter no. 2407 dated 22.8.2001 and letter no. 3601 dated 17.11.2003 issued by the Divisional Forest Officer, West Forest Division, Hazaribagh (respondent no. 5) wherein it was clearly stated inter alia that the leased land of the petitioner is not a forest land. However, vide letter contained in memo no. 73 dated 12.1.2016 (Annexure-3 to the writ petition), the petitioner was issued notice informing inter alia that as per the Divisional Records, the leased land of the petitioner falls under the notified forest and pursuant to the said notice, hearing was fixed before the court of respondent no. 2 on 20.1.2016 at 11.00 a.m. The petitioner appeared, but no proceeding was taken up on the said date by the respondent no. 2. Thereafter, another notice, was issued to the petitioner as contained in memo no. 334 dated 5.3.2016 calling upon to obtain ‘No Objection Certificate’ from the Forest Department within 20 days failing which, appropriate action for cancellation of mining lease for the remaining period would be taken. The said letter dated 5.3.2016 though referred memo no. 2. Thereafter, another notice, was issued to the petitioner as contained in memo no. 334 dated 5.3.2016 calling upon to obtain ‘No Objection Certificate’ from the Forest Department within 20 days failing which, appropriate action for cancellation of mining lease for the remaining period would be taken. The said letter dated 5.3.2016 though referred memo no. 433 dated 21.1.2016 issued by the Divisional Forest Officer, West Forest Division, Hazaribagh, yet the same was never supplied to the petitioner which was brought on record by the respondents for the first time by filing counter affidavit on behalf of the respondent no. 5. The petitioner, however, filed a reply/objection on 20.1.2016 on various factual as well as legal grounds. However, without considering the said reply filed by the petitioner, the Assistant Mining Officer, Hazaribagh (respondent no. 4) informed the petitioner through memo no. 734 dated 27.4.2016 that its mining lease for remaining period has been cancelled with immediate effect-by the respondent no. 2 vide his order dated 26.4.2016. Hence, the present writ petition. 3. Learned counsel for the petitioner has primarily assailed the impugned order contained in memo no. 734 dated 27.4.2016 on the ground of non-observance of the principles of natural justice. It is submitted that though vide order dated 26.4.2016 the mining lease of the petitioner was cancelled yet the same was not communication to the petitioner further submits that the said order dated 26.4.2016 has not even been brought on record by the respondents in their counter affidavits. The sequence of facts and the notices/letters issued by the respondents would indicate the manner in which a decision has been taken by the respondents to cancel the subsisting mining lease of the petitioner. Section 27(2) of the Jharkhand Minor Mineral Concession Rules, 2004 though empowers the Deputy Commissioner to cancel the mining lease, yet the same exercise has to be done after affording due opportunity of hearing to the concerned lessee against the alleged violation of terms and conditions of the lease. Since in the present case, neither the order dated 26.4.2016, which is said to be the order by which the mining lease of the petitioner was cancelled by the respondent no. 2, has been served to it nor the impugned letter dated 27.4.2016 discloses any consideration of the petitioner's reply while canceling the subsisting mining lease. 4. Since in the present case, neither the order dated 26.4.2016, which is said to be the order by which the mining lease of the petitioner was cancelled by the respondent no. 2, has been served to it nor the impugned letter dated 27.4.2016 discloses any consideration of the petitioner's reply while canceling the subsisting mining lease. 4. Per contra, learned A.C. to A.G. submits that two counter affidavits have• been filed i.e. by the respondents. It is further submitted that the petitioner was carrying out the business of stone quarry over the protected forest which could not have been allowed to be continued being in violation of the forest laws. As soon as the respondents' came to know that the leased land was notified under Section 29 of the Indian Forest Act, 1927, vide notification dated 2.1.1953, immediate steps were taken for stopping the mining activities and for terminating the mining lease of the petitioner for the remaining period. It has also been averred in the counter affidavit filed on behalf of the respondent no. 3 that pursuant to issuance of notice dated 12.1.2016, the petitioner did not appear before the respondent authorities. 5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has primarily challenged the action of the respondents including the impugned letter/order contained in memo no. 734 dated 27.4.2016 on the ground of non-observance of principles of natural justice. The petitioner appears to have filed its objection before the respondent no. 4 in response to the notice as contained in memo no. 734 dated 12.1.2016 on factual as well as the legal grounds. On perusal of the impugned letter dated 27.4.2016, it appears that the respondent no. 4 while referring the order passed by the respondent no. 2 informed inter alia that the mining lease of the petitioner has been cancelled with immediate effect. The specific case of the petitioner is that purported decision taken by the respondent no. 2 vide order dated 26.4.2016 for termination of its mining lease has not been communicated to it. In response to the said averment made in paragraph-16 of the writ petition, it has been stated in paragraph 20 of the second counter affidavit dated 11.11.2016 filed on behalf of the respondents that after cancellation of the lease in question, the respondent no. 4 communicated the same through letter contained in memo no. In response to the said averment made in paragraph-16 of the writ petition, it has been stated in paragraph 20 of the second counter affidavit dated 11.11.2016 filed on behalf of the respondents that after cancellation of the lease in question, the respondent no. 4 communicated the same through letter contained in memo no. 734 dated 27.4.2016. The said statement cannot be read as if a copy of the order passed by the respondent no. 2 dated 26.4.2016 was in fact communicated to the petitioner. Even the impugned letter dated 27.4.2016 issued by the respondent no. 4 does not disclose any consideration of the reply submitted by the petitioner in response to the notice dated 12.1.2016 issued by the said respondent. It is well settled that if any decision is taken by any administration/quasi-judicial authority against a person adversely affecting his/her rights, the observance of principles of natural justice is not mere a formality. The objection/reply submitted by the person concerned in pursuance of the notice issued by the authorities is to be properly considered/appreciated so as to reach a logical conclusion in the decision making process. 6. The Hon'ble Supreme Court in a judgment rendered in the case of Kranti Associates Private Limited and Another vs. Masood Ahmed Khan and Others reported in (2010) 9 SCC 496 while considering the requirement of observance of principles of natural justice as well as to record reasons in the decision making process, has held as under: "47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (J) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (I) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor.) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija vs. Spain EHRR, at 162 para. 29 and Anya vs. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments playa vital role in setting up precedents for the future. See Ruiz Torija vs. Spain EHRR, at 162 para. 29 and Anya vs. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments playa vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process" 7. In another judgment rendered .in the case of Dharampal Satyapal Limited vs. Deputy Commissioner of Central Excise, Gauhati and Others reported in (2015) 8 SCC 519 , the Hon'ble Apex Court while dealing with the historical development of the principles of natural justice has held as under: "35. From the aforesaid discussion it becomes clear that the opportunity to provide hearing before making any decision was considered to be requirement in the court proceeding. Later on, this principle was applied to other quasi-judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. It was, thus, observed in A.K. Kraipak case that if the purpose of rules of natural justice. is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries. In Maneka Gandhi vs. Union of India also the application of principle of natural justice was extended to the administrative action of the State and its authorities. It is, thus, clear that before taking an action, service of notice and giving of hearing to the notice is required. In Maharashtra State Financial Corpn. vs. Suvarna Board Mills, this aspect was explained in the following manner: (SCC p. 568, para 3) "3. It has been contended before us by the learned counsel for the appellant that principles of natural justice were satisfied before taking action under. Section 29, assuming that it was necessary to do so Let it be seen whether it was so It is well settled that natural justice cannot be placed in a straitjacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another. Section 29, assuming that it was necessary to do so Let it be seen whether it was so It is well settled that natural justice cannot be placed in a straitjacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the• action as made known is contemplated. No particular form of notice is the demand of law. All will depend on facts and circumstances of the case." 36. In East India Commercial Co. Ltd. vs. Collector of Customs, this Court held that whether the statute provides for notice or not, it is incumbent upon the quasi-judicial authority to issue a notice to the persons concerned-disclosing the circumstances under which proceedings are sought to be initiated against them, failing which the conclusion would be that principles of natural justice are violated. To the same effect are the following judgments: (a) Union of India vs. Madhumilan Syntex (P) Ltd., (b) Morarji Goculdas B&W Co. Ltd. vs. Union of India, (c) Metal Forgings vs. Union of India, and (d) Union of India vs. Tata Yodogawa Ltd. 37. Therefore, we are inclined to hold that there was a requirement of issuance of show-cause notice by the Deputy Commissioner before passing the order of recovery, irrespective of the fact whether Section 11-A of the Act is attracted in the instant case or not." 8. The impugned letter dated 27.4.2016 only discloses that since the leased land. falls under the notified forest, the mining lease at the petitioner has been ordered to be cancelled by the respondent no. 2 vide order dated 26.4.2016. The reply of the petitioner submitted pursuant to the notice dated 12.1.2016 (Annexure-4/1, to the writ petition) discloses that the petitioner elaborately contested against the applicability of the notification dated 2.1.1953 issued under Section 29 of the Indian Forest Act, 1927 over the leased land in addition to taking other factual plea. The Non-consideration of the reply submitted by the petitioner before the respondent authorities is violative of well settled principles of 'natural justice. 9. Under the aforesaid facts and circumstances, the respondent no. The Non-consideration of the reply submitted by the petitioner before the respondent authorities is violative of well settled principles of 'natural justice. 9. Under the aforesaid facts and circumstances, the respondent no. 2 is directed to pass a fresh speaking" and reasoned order in this regard. after affording due opportunity of hearing to the representative of the petitioner preferably within a period of 12 (twelve) weeks from the date of receipt/production Of a copy of this order. The effect of Order dated 26.4.2016 as well as the impugned letter contained in memo no. 734 dated 27.4.2016 shall be subject to outcome of the decision taken by the respondent no-2. 10. The writ petition is disposed of with the afore said observation and direction.