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2023 DIGILAW 13 (HP)

Rajinder Singh v. State of H. P.

2023-01-04

TARLOK SINGH CHAUHAN, VIRENDER SINGH

body2023
JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The instant petition has been filed for grant of the following substantive reliefs: “(a) That the impugned letter/order dated 27.01.2021 (Annexure P-9), order dated 03.06.201 (Annexure P-8) and 23.06.2021 (Annexure P-7), may kindly be quashed and set aside. (b) That respondent may kindly be directed to grant the permission to the petitioner for lifting the already extracted material assessed by the Joint Inspection Committee in its report dated 07.01.2021 (Annexure P-6) i.e. 22522 M.T.” 2. It is not in dispute that the forest clearance for mining was accorded in favour of the petitioner by the Central Government on 05.03.2004 and the same was valid upto five years, i.e. up to 2009. After expiry of the mining lease, the same has not been renewed. 3. Now, the prayer of the petitioner is that, he may be permitted to lift the old stock of forest area that has already been excavated and for which, permission had already been granted in his favour by the Central Government, under the provisions of the Forest (Conservation) Act, 1980 (hereinafter referred to as “FC Act”). It is only the Forest Department which has mainly opposed the petition by claiming that since the approval of lease, under the FC Act had expired in the year 2009 and thereafter on such expiry of the lease, the land is reverted back to the Himachal Government/Forest Department, therefore, in such circumstances, the petitioner has no right to remove the leftover material from the forest land in question. 4. We have heard the learned counsel for the parties and gone through the material placed on record. 5. It is not in dispute that what the petitioner seeks is to lift the old stock from the forest area, for which, royalty has already been paid. If that be so, obviously, then, there cannot be any objection by the respondents to lift such old stock, more particularly, in the light of the judgment rendered by three Judges Bench of Hon’ble the Supreme Court in Chowgule and Company Private Limited vs. Goa Foundation and Others, (2020) 12 SCC 56 . The facts therein were quite identical to the case in hand. The facts therein were quite identical to the case in hand. There also, the appellant had extracted the iron ore prior to 15.03.2018 and the same was lying either at the stockyard or at the pithead and accordingly, a direction was sought to the respondents to permit the appellant therein to transport the same, which is evident from perusal of Para-21 of the judgment, which reads as under: “21. The appellants in both these appeals herein submit, that though they have extracted the iron ore prior to 15.3.2018, it is lying either at the stockyard or at the pithead and, therefore, seek permission to transport the same.” 6. Such request of the appellant, was opposed by the respondents mainly on the ground that the mining leases of various lessees had already expired in the year 2007 and they had been illegally continuing with the mining operations and, therefore, should not be permitted to lift the iron ore, as it would amount to giving a premium for illegal activities of the leaseholders, which is evident from Para-26 of the judgment, which reads as under: Shri Prashant Bhushan, learned counsel for the Goa Foundation, vehemently opposed the appeals. He would submit that the mining leases of the various lessees had already expired in 2007. They were illegally continuing their mining operations. He submits that the same has been found in the judgment of this Court in Goa Foundation-I (supra). He further submits that in Goa Foundation-II (supra) this Court also found that there was rampant illegal excavation and, therefore, such stringent directions were issued by this Court. He submits, that the Division Bench of the High Court has rightly construed the words “to manage their affairs” used by this Court in paragraph 154.6 (supra) to include all activities relating to mining and transportation thereof. He submits that the lessees in the period of seven weeks from 7.2.2018 till 15.3.2018 have extracted 2.2 MT of iron ore. It is submitted, that if the permission is granted to transport this iron ore, it will amount to giving a premium for illegal activity of the leaseholder. He, therefore, vehemently submits that all appeals are liable to be dismissed. 7. It is submitted, that if the permission is granted to transport this iron ore, it will amount to giving a premium for illegal activity of the leaseholder. He, therefore, vehemently submits that all appeals are liable to be dismissed. 7. The Hon’ble Supreme Court after taking into consideration the rival contentions, permitted the appellant to transport the royalty paid mineral from both the jetties/stockyard or pitheads on the basis of valid transport permit issued by the competent authority. 8. The reasons, for passing such direction is contained in Para-35 of the judgment, which reads as under: “Taking overall view of the matter i.e. paragraph 154.6 of the judgment of this Court in Goa Foundation-II (supra); the orders dated 4.4.2018 and 11.5.2018 passed by the same Bench which delivered the judgment in Goa Foundation-II (supra) permitting the minerals/iron ore to be transported which were royalty paid and which was lying on the jetties on or before 15.3.2018 and the legislative policy granting six months’ period for removal of the mineral for the benefit of the lessees, we find that the view taken by the Division Bench of the Bombay High court is not correct. If this Court in Goa Foundation-II (supra) intended to prohibit the mining as well as transportation of the minerals/iron ore with effect from 16.3.2018 nothing precluded it from doing so. However, the words used were that the lessees are permitted to manage their affairs and are permitted to continue mining till 15.3.2018. The only prohibition contained in the said order after 15.3.2018 is for carrying out mining operations. Not only this but the same Bench which has decided the Goa Foundation-II (supra) itself on two occasions has permitted the mineral to be transported from the jetties. We do not find, that there is any rationale in differentiating between the iron ore which is either at the jetties or at the stockyards or pitheads, if the same is mined prior to the date of the prohibition i.e. 15.3.2018. There is no doubt that the ownership of the ore is that of the party that has raised the ore. The ore which has been permitted to be transported is on condition of payment of royalty. We see no reason why the owners should not be allowed to transport their own ore.” 9. There is no doubt that the ownership of the ore is that of the party that has raised the ore. The ore which has been permitted to be transported is on condition of payment of royalty. We see no reason why the owners should not be allowed to transport their own ore.” 9. As observed above, the facts of this case are no different from the one in Goa Foundation Case (supra). Therefore, we deem it appropriate to permit the petitioner to lift/transport the mineral, for which, royalty stands paid after obtaining a valid transit permit from the competent authority of the State Government. 10. However, such lifting shall be permitted only qua the stocks that have been evaluated by a Committee in the Joint Inspection on 07.01.2021 (Annexure P-6) and it would be under the direct supervision of the Divisional Forest Renuka Ji or his nominee. Mining Officer is the nominee, for which, an advance notice at every occasion be issued by the petitioner. 11. The petitioner is directed to lift the material by 31st March, 2023. The petitioner is further directed to maintain proper records, which shall be counter-signed by the representatives of the Forest Department and Mining Department. 12. In view of the above, the petition stands disposed of, so also, pending miscellaneous applications, if any.