Court No. - 4
Case :- WRIT - C No. - 15019 of 2018 Petitioner :- Kamla Kant Pandey Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Javed Husain Khan,Gulrez Khan,Sri W.H. Khan (Sr. Advocate) Counsel for Respondent :- C.S.C.,Sarita Gupta,Syed Mohd. Fazal
Hon'ble Bala Krishna Narayana,J. Hon'ble Rajiv Gupta,J.
Learned counsel for the petitioner is permitted to implead Akhilesh Paul and Praveen Kumar as the respondent nos. 5 and 6 respectively during the course of the day.
Heard Sri W.H. Khan, Senior Advocate assisted by Sri J.H. Khan and Sri Gulrez Khan, learned counsel for the petitioner, learned Standing Counsel for the respondent nos. 1 to 4 and Sri H.G. Hasnain and Sri P.K. Jain, Senior Advocates appearing for the respondent nos. 5 and 6.
It appears from the perusal of the material brought on record that the petitioner was granted mining lease in respect of plot no. 1, area 200 acres situated in village- Kanach and plot no. 366, area 175 acres situated in village- Pakari, District- Sonebhadra, for extracting sand and moorum on 12.03.2003 for a period of three years. The said lease was subsequently cancelled by order dated 21.05.2004/29.05.2004 which was challenged by the petitioner by filing Civil Writ Petition No. 20778 of 2004 before this Court. The aforesaid writ petition was allowed by this Court by order dated 20.11.2004 and the matter was remitted to the State Government with a direction to pass a fresh order in the matter. The State Government by order dated 31.03.2005 rejected the petitioner's representation. This order was also challenged by the petitioner by means of writ petition no. 43774/2005 which was partly allowed by this Hon'ble Court by order dated 16.12.2005 and the matter was again remitted to the State Government with the direction to take a fresh decision in respect of the points set forth in paragraph 25 of its judgement which runs as hereunder :-
(a) The Government has to consider the question of granting permission to the applicant under Section 29 of the Wild Life Sanctuary Act, 1972 for doing mining operation in pursuance of the said lease for the period during which the lease has not been operated.
(b) If the permission is granted, the Government shall pass suitable orders for extension of the lease period for the period the applicant was not permitted to operate the lease.
(c) If the Government reaches conclusion that the permission can not be granted under Section 29 of the Act, it can also consider the feasibility of giving any other land in the vicinity in accordance with law for mining operation to the applicant for the period during which he was prohibited from doing the mining work if any such proposal acceptable to the applicant. Such proposal is acceptable to the applicant.
(d) If the Government is of the view that no permission is to be granted and no lease in another land is also not granted, suitable order for return of money to the applicant along with interest be passed.
In compliance of the judgement of this Court dated 16.12.2005, the petitioner moved an application before the State Government on 26.05.2006 (Annexure No. 2 to the writ petition). In the meantime, the State Government filed a review petition no. 196049 of 2006 against the judgement and order dated 16.12.2005 which was dismissed by a Division Bench of this Court by order dated 24.11.2014. The order dated 24.11.2014 as well as the order dated 16.12.2005 were challenged by the State Government by means of S.L.P. No. 13726-13727 of 2015, State of U.P. and others Vs. Kamla Kant Pandey and others which was dismissed by Apex Court by order dated 7.8.2015 (Annexure No. 4 to the writ petition). The State Government then passed an order dated 05.07.2016 directing the Collector, Sonebhadra to submit a proposal for allotment of any other land for mining operation for restricted period. The Collector, Sonebhadra forwarded a proposal dated 20.07.2016 (Annexure No. 6 to the writ petition) to the State Government for allotment of certain plots for mining operation. The proposal of the Collector, Sonebhadra was approved by the Mines Officer and the State Government by its order dated 14.10.2016 accepted the proposal submitted by the Collector and directed the Collector to grant the lease in respect of plots mentioned in the proposal with certain conditions (Annexure No.9 to the writ petition). In compliance of the order dated 14.10.2016, the Mining Officer directed the petitioner to obtain mining plan from Director, Bhu-Tatwa Evam Khanikarm U.P. Lucknow and obtain NOC from State Level Environment Impact Assessment Authority by its letter dated 29.12.2016 (Annexure No.10 to the writ petition). The petitioner duly obtained mining plan from Director, Bhu-Tatwa Evam Khanikarm U.P. Lucknow. Since, the petitioner in addition was also required to obtain NOC from respondent no. 3, the SEAC in meetings held on 16.11.2017 and 26.12.2017 granted approval for issuing NOC (environment clearance). Thereafter, respondent no. 3 in the meeting held on 02.01.2018 resolved that the petitioner should be informed and asked to submit within one month if there is any change in DSR. The SLEIAA was also directed to seek clarification from DLEIAA, Sonebhadra in this regard. When the respondent no. 2 did not respond to the resolution passed in the meeting of the respondent no. 3 dated 02.01.2018, the petitioner moved an application on 12.03.2018 before the respondent no. 3 and respondent no. 2 requesting them to comply with the directions of the respondent no. 3 issued in the meeting dated 02.01.2018 (Annexure No. 14 & 15 to the writ petition). The respondent no. 3 thereafter, again by its order dated 19.03.2018 directed the respondent no. 2 to inform the respondent no. 3 whether there is any change in DSR (Zila Sarvekshan Report) (Annexure No. 16 to the writ petition). However, the respondent no. 2 failed to respond to the orders of the respondent no. 3 dated 19.03.2018. The petitioner moved applications on 21.03.2018 and 27.03.2018 before the respondent no. 2 with a prayer to comply with the direction given by the respondent no. 3 in the meeting held on 02.01.2018. Copies of the applications dated 21.03.2018 and 27.03.2018 have been brought on record as Annexure No. 17 & 18 to the writ petition. When respondent no. 3 did not take any action, the petitioner filed three applications before the respondent nos. 1, 2 and 3 dated 09.04.2018, 10.04.2018 and 10.04.2018. Copies of the applications dated 09.04.2018, 10.04.2018 and 10.04.2018 have been brought on record as Annexure No. 19, 20 & 21.
However, when despite repeated orders of respondent nos. 1 and 3 and the applications moved by the petitioner before the respondent no. 2, he has not submitted its report regarding DSR (Zila Sarvekshan Report) as directed by the respondent no. 3 in its meeting dated 02.01.2018, the petitioner has filed the instant writ petition with the following prayer :-
1. issue a writ, order or direction in the nature of mandamus commanding the respondent no. 2 to dispose of the applications of the petitioner dated 09.04.2018 and 10.04.2018 (Annexure No. 19, 20 & 21) and comply with the directions given by the respondent no. 3 in its meeting 02.01.2018 and submit report about DSR (Zila Sarvekshan Report).
2. issue a writ, order or direction in the nature of mandamus commanding the respondent no. 3 to grant NOC (environment clearance) in respect of nine plots 1- Araji No. 1 (Lot No.1) village Bhagwa, 2- Araji No.15 Cha (Lot No.1) Village Bhagwa, 3- Araji No. 1 & 15 Cha (part of Lot No.1 & 2) village Bhagwa, 4- Gata No. 756 (Lot No.3) village Sindhuriya, 5- Araji No.1 village Vardiya, 6- Araji No. 312Ka (Lot No.1 &2) village Bijaura, 7- Araji No.2475 Ga village Padrachha, 8- Araji No.1 M (khand No.1) village Padrachha and 9- Araji No. 1 M (khand No.2) village Padrachha Tehsil Robertsganj, District- Sonebhadra.
3. issue any other writ, order or direction which the Hon'ble Court may deem fit and proper in the circumstances of the present case.
4. award costs to the petitioner from the contesting respondents.
Sri W.H. Khan, learned counsel for the petitioner has argued that the lease granted to the petitioner on 12.03.2003 for a period of three years for extracting sand and moorum having been illegally cancelled by the State Government and the order cancelling the petitioner's lease having been quashed by this Court by order dated 16.12.2005 passed in Civil Misc. Writ Petition No. 43774/2005 and the matter being remitted to the State Government with a direction to take a fresh decision in the matter keeping in view the four points set forth by the High Court in paragraph 25 of its judgement, it is obligatory upon the State Government to take a fresh decision in the matter expeditiously within a time bound period. He next submitted that it is apparent that the matter is pending before the State Government since 26.05.2006 and despite lapse of 13 years, no decision has been taken by the State Government in this matter mainly because of the failure of the respondent no. 3 to grant NOC (environment clearance) in respect of nine plots with regard to which the Collector, Sonebhadra forwarded a proposal dated 20.07.2016 to the State Government for granting lease for mining operation pursuant to the order passed by the State Government on 05.07.2016. Even the applications moved by the petitioner on 09.04.2018, 10.04.2018 and 10.04.2018 (Annexure No. 19, 20 & 21 to the writ petition) before the respondent no. 2 for complying with the direction given by the respondent no. 3 in the meeting dated 02.01.2018 and submit report about DSR (Zila Sarvekshan Report), have not been decided and hence, necessary directions be issued to the respondent no. 2 and 3 in this regard.
Per contra learned Standing Counsel appearing for the respondent nos. 1 to 4 made his submissions opposing the prayer made by the petitioner in the writ petition. He however, does not dispute the fact that the applications moved by the petitioner on 09.04.2018, 10.04.2018 and 10.04.2018 (Annexure No. 19, 20 & 21 to the writ petition) before respondent no. 2 have not been decided. He has also very fairly stated that respondent no. 3 has also not taken any decision with regard to the grant of necessary NOC (environment clearance).
Sri H.G. Hasnain and Sri P.K. Jain, Senior Advocates appearing for respondent nos. 5 and 6 have submitted that the petitioner is not entitled to be granted any relief in respect of the plots in question and this writ petition which has no merits, deserves to be rejected.
Having heard the learned counsel for the parties present and perused the material brought on record, we are of the considered view that since the petitioner has already approached the respondent nos. 2 and 3 for redressal of his grievance, but the respondent nos. 2 and 3 have not taken any decision in the matter and therefore, the ends of justice shall be met in case the writ petition is finally disposed of with the direction to the respondent nos. 2 and 3 to take fresh appropriate decisions in the matter within a specified period.
In view of the above, without expressing any opinion on the merits of the case, we dispose of this writ petition with the following directions :-
1. The respondent no. 2 is directed to consider and decide the petitioner's applications moved by him on 09.04.2018, 10.04.2018 and 10.04.2018 (Annexure No. 19, 20 & 21 to the writ petition) before him strictly in accordance with law by a speaking and reasoned order preferably within a period of six weeks from the date of production of certified copy of this order after affording opportunity of hearing to the petitioner as well as the respondent nos. 5 and 6.
2. The respondent no. 3 shall also consider and decide the prayer made by the petitioner before him for grant of NOC (environment clearance) in respect of nine plots 1- Araji No. 1 (Lot No.1) village Bhagwa, 2- Araji No.15 Cha (Lot No.1) Village Bhagwa, 3- Araji No. 1 & 15 Cha (part of Lot No.1 & 2) village Bhagwa, 4- Gata No. 756 (Lot No.3) village Sindhuriya, 5- Araji No.1 village Vardiya, 6- Araji No. 312Ka (Lot No.1 &2) village Bijaura, 7- Araji No.2475 Ga village Padrachha, 8- Araji No.1 M (khand No.1) village Padrachha and 9- Araji No. 1 M (khand No.2) village Padrachha Tehsil Robertsganj, District- Sonebhadra, within a period of six weeks from the date of production of certified copy of this order.
Order Date :- 30.4.2018 KS