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2019 DIGILAW 57 (JK)

Gee Emm Industries v. State of J&K

2019-02-05

SANJEEV KUMAR

body2019
Judgment 1. Extraction of the gypsum occurring over an area of 4.8 hectares at Batam, Uri, District Baramulla, falling under Khasra no.1093-Min, vide Government Order no.136-Ind of 2005 dated 18th May 2005 (Annexure A with writ petition) was granted in favour of M/s Gee Emm Industries – petitioner herein, for captive use only. The Mining Lease for extraction of the gypsum was granted for a period of 20 years, subject to the conditions enumerated in the Government Order no.136-Ind of 2005 dated 18th May 2005. This was followed by the execution of the Lease Deed on 25th July 2005. 2. It appears that for carrying out the demarcation of the leasehold rights of M/s Tower Chemicals, M/s New Sigma Industries and M/s Gee Emm Industries, granting Mining Lease for exploitation of gypsum at Village Bagna, Uri, District Baramulla, a Committee was constituted by the Director, Geology and Mining Department – respondent no.2, vide Order no.504/MCC/DGDM/TC/04-05/1233-37 dated 24th May 2018. The Committee reportedly visited the site at Bagna, Baramulla, on 26th May 2018 along with the representatives of the lessee and demarcated three Gypsum Blocks, namely, Tower Chemicals, marked “ABCDEFGH’, comprising over an area of 4.0128 hectares, New Sigma Industries marked as “0123ABCD4567’, comprising over an area of 4.849 hectares and Gee Emm Industries (petitioner) marked as “1A’B’C’D’E’ & “D’1HFA’E’, comprising over an area of 4.80 hectares on ground with reference to permanent reference point RP (Batakal Tree), which was identified by the owners of the lessee. The decision of Committee constituted by respondent no.2, has been conveyed to the District Mineral Officer, Geology and Mining Department, Baramulla – respondent no.3, vide letter no.405/MCC/DGM/TC / 04-05 / 1681-85 dated 9th June 2018 (Annexure H with writ petition), to implement it on ground. It is this communication of which the petitioner is aggrieved of and seeks quashment thereof, with a direction to the official respondents to allow him to carry out his mining activities as per the revised approved plan. He also seeks a direction to the official respondents not to allow the private respondents to carry out their mining activities as according to him they are strangers to the contract executed between the official respondents and ex-lessee of the firm, namely, New Sigma Industries. 3. The respondents 1 to 3 have filed the Reply in opposition to the instant writ petition. 3. The respondents 1 to 3 have filed the Reply in opposition to the instant writ petition. They aver that the mining lease for the extraction of the gypsum over the leased area mentioned in the Government Order no.136-Ind of 2005 dated 18th May 2005, was granted in favour of the petitioner and therefore, he has no legal right to carry out his mining activities beyond the area specified in the site plan. The respondents claim that the respondent no.4 moved an application on 15th May 2018, alleging that the petitioner had encroached upon the area leased out to the respondent no.4 and sought the demarcation of the respective leased areas. Acting on the said application, the demarcation was effected by a team of officers constituted by the competent authority on 26th May 2018 in presence of the representatives of all the parties, namely, the petitioner, respondent no.4 and another lease holder M/s Tower Chemicals. 4. The reply has been filed by the respondents 4 to 6, in which they insist that the petitioner has been unauthorisedly and illegally extracting the gypsum from the area, which has been leased out by the official respondents in favour of the respondent no.4. In order to prevent such encroachments, it is urged, that the official respondents demarcated the respective leased areas of three lessees in presence of all the parties, including the petitioner. The respondents have annexed with their Reply the Site Plan, which according to the respondents, is part of the Lease Deed with respect to the area of 4.8 hectares, leased out to the petitioner, but has not been placed on the writ record by the petitioner. It is further stated by the respondents that by virtue of the Government Order no.113-Ind of 2006 dated 20th April 2006, sanction was accorded to the grant of the mining lease in favour of the respondent firm over an area of 4.849 hectares falling under Survey no.1093 Min of Village Bagna, Noorkha, Uri, Baramulla, for a period of 20 years, which was followed by the execution of a formal Lease Deed dated 31st August 2006 in favour of the respondent firm. The said firm, as maintained by the respondents in their Reply, was reconstituted amongst the partners. 5. I have heard the learned counsel for the parties and considered the matter. 6. The said firm, as maintained by the respondents in their Reply, was reconstituted amongst the partners. 5. I have heard the learned counsel for the parties and considered the matter. 6. This Court by the order dated 3rd July 2018, after considering the submissions made by the learned counsel for the parties and after perusing the record, directed the Committee, comprising of the Nodal Officer, MSS, Surveyor and District Mineral Officer, to carry out the demarcation on 12th July 2018 in presence of the parties and to submit the report before this Court on or before 16th July 2018, and the petitioner was directed to carry out the construction strictly as per the site plan. Letters Patent Appeal bearing LPAOW no.57/2018 was directed against the aforesaid interim order dated 3rd July 2018. The Division Bench vide order dated 16th July 2018, modified the interim order dated 3rd July 2018, by allowing the Committee to carry out the demarcation in presence of the parties and submit a report before this Court on or before next date, with a direction to the parties to complete the pleadings, meanwhile, in the writ petition and till the decision is rendered in the writ petition on hand, the parties shall maintain status quo. 7. The compliance report in pursuance of the order dated 16th July 2018 passed in LPAOW no.57/2018, has been filed by the official respondents. It is reported that the notices for remaining present on the spot during the demarcation to be conducted on 20th July 2018, were issued by the respondent no.2 to all the members of the committee and also to the petitioner, private respondents and M/s Tower Chemicals. The demarcation, it is also reported, was conducted in presence of the parties. 8. It is reported that the notices for remaining present on the spot during the demarcation to be conducted on 20th July 2018, were issued by the respondent no.2 to all the members of the committee and also to the petitioner, private respondents and M/s Tower Chemicals. The demarcation, it is also reported, was conducted in presence of the parties. 8. The compliance report, filed by the respondents, would also divulge that the constituted committee members demarcated three gypsum plans/blocks, namely, Tower Chemicals, marked as “ABCDEFGHA’, comprising over an area of 4.0128 hectares; New Sigma Industries marked as “0123ABCD45670’, comprising over an area of 4.849 hectares and Gee Emm Industries (petitioner) marked as “1ABCDEA’ & “D1HGFAED’, comprising over an area of 4.80 hectares on the ground with reference to the permanent reference point RP (Batakal Tree), which was identified by the owners of the lessee and on spot the corner points were shown to the lessee and the District Mineral Officer, besides the lessees were asked to ensure the boundary pillars to be erected on all the corner points under the overall supervision of the District Mineral Officer, Baramulla, and thereafter maintain and keep them in good repair in accordance with clause (vii) of Sub-Rule 1 of Rule 38 of the J&K Minor Mineral Concession Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016. 9. The compliance report submitted in pursuance of the order dated 16th July 2018 passed in LPAOW no.57/2018, has set at rest all the apprehensions that had been nursed by the petitioner in the present petition. Nevertheless, the learned counsel for the petitioner has disputed the compliance report on the self-same grounds as have made use of with respect to the earlier demarcation conducted by the respondents on 26th May 2018. The submission of the learned counsel for the petitioner disputing what has come to fore from the demarcation comprised in the compliance report submitted by the respondents pursuant to the aforesaid order dated 16th July 2018, is contentious and factual in nature. Such disputations need determination in a full-fledged trial, which cannot be squared off in the writ proceedings, more particularly when the demarcation was conducted by the respondents in presence of the petitioner and he, therefore, had been party to the aforesaid demarcation. Such disputations need determination in a full-fledged trial, which cannot be squared off in the writ proceedings, more particularly when the demarcation was conducted by the respondents in presence of the petitioner and he, therefore, had been party to the aforesaid demarcation. In the writ proceedings, it may not be possible for this Court to resolve the complicated disputed question of fact and come to a definite finding vis-à-vis the measurement, demarcation and identification of a particular area or areas leased out to the parties for extraction of the gypsum. 10. Be that as it may, in view of the settled legal position that this Court, while exercising the writ jurisdiction under Article 226 of the Constitution of India, is not a proper forum to adjudicate these disputed questions of fact, I see no reason to entertain this petition. Accordingly, this petition is dismissed, with connected IA(s). Interim direction, if any, shall stand vacated.