ARUN SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition has been filed for quashing and setting aside the order contained in Memo No.1610 dated 09.12.2017 passed by the Deputy Commissioner, Deoghar whereby and whereunder the mining lease granted to the petitioner in respect of Rarhia-Ambatari, Sirsia Sand Ghat, situated at Panchayat -Rarhia, pertaining to Plot Nos.475743, area 5.60 acres, has been prematurely terminated on the ground that the petitioner has undertaken mining of sand in Monsoon Period during the Financial Year 2016-17.

(2.) The factual background of the case, as stated in the writ petition, is that the Deputy Commissioner, Deoghar (respondent no. 2) issued a public notice inviting auction for settlement of various Sand Ghats in the District of Deoghar. In the said notice, details of Panchayat, Sand Ghat, area, reserved money etc. were mentioned and Rarhia-Ambatari Sirsia Sand Ghat was at serial no.22 of the said notice. The petitioner having found himself eligible participated in the auction and he was allotted Rarhia-Ambatari Sirsia Sand Ghat, situated over plot nos.475743 having an area of 05.60 acres and, accordingly, letter of intent contained in Memo no.1065 dated 26.06.2015 was issued in favour of the petitioner for the years i.e 2015-16, 2016-17 and 2017-18. As per the provision of Jharkhand Minor and Mineral Concession Rules, 2004, the petitioner was to obtain approval of his mining plan for carrying out excavation of sand. Accordingly, the petitioner got its mining plan approved by the designated authority vide letter contained in memo no.1344 dated 207.2015. The petitioner was also granted environmental clearance from the office of the State Level Environment Impact Assessment Authority, Jharkhand (in short 'SEIAA') for carrying out its mining project in respect of Rarhia-Ambatari Sirsia Sand Ghat vide letter no.1492 dated 25.08.2015. Thereafter, an agreement dated 11.09.2015 was executed by and between the petitioner and the respondent-State of Jharkhand, permitting the petitioner to carry out excavation from Rarhia-Ambatari Sirsia Sand Ghat. The petitioner continued to excavate sand as per the terms and conditions of the license. However, a show cause notice was issued to the petitioner vide letter no.1490 dated 28.11.2017, as to why the action be not initiated against him for violation of Part-IV of the Mining Plan and Clause 12 of environment clearance granted in his favour. On receipt of the show cause notice, the petitioner submitted his reply. However, another notice was served upon the petitioner vide letter No.1544 dated 01.12017, whereby he was directed to show cause as to why a proceeding be not initiated against him for violating the terms of the mining plan and environment clearance, as the petitioner indulged himself in the activities of excavation and transportation of sand during the monsoon period in the year 2016-17. The petitioner submitted his reply to the respondent no.4 which was received on 08.12017. However, the Deputy Commissioner, Deoghar vide order contained in Memo No.1610 dated 09.12017 has cancelled the mining lease granted in his favour in respect of Birniya Sand Ghat prematurely.

(3.) Mr. Sumeet Gadodia, learned counsel for the petitioner, submits that the petitioner has been carrying on his mining activity strictly in accordance with the mining plan and even in the show cause notice and/or termination order, no specific instance has been elaborated indicating the alleged violation committed by the petitioner with respect to the mining plan. The only allegation levelled against the petitioner is that he has excavated sand during monsoon season of the year 2016-17. The learned counsel, while referring to Clause 11 of the environment clearance given to the petitioner by the SEIAA vide letter dated 25th Aug., 2015, submits that it should have been ensured by the district authority that no mining is carried out during monsoon season. It was the duty of the authorities to issue specific letter by clarifying the period of monsoon season to the petitioner and other mining lease holders so as to ensure that no mining activity is carried out during the said period. In fact, for the year 2017-18, such letter was issued on 28th June, 2017 to all mining lessees, including the petitioner. The said procedure was also followed in the district of Dumka also. In support of the said contention, the petitioner has annexed the letter of the Deputy Commissioner, Dumka dated 18.05.2017, whereby the Sand Ghats allottees were intimated about the monsoon season in the district, restricting them from excavating sand during that period. It is further submitted that no letter was issued by the district authorities of Deoghar putting such a prohibition for the year 2016-17. Thus, the district authorities cannot treat the mining done by the petitioner during the alleged monsoon season for the year 2016-17 as violative of terms of environment clearance and Clause 17 of the Part-III of the mining lease. In fact, during the year 2016-17, Deoghar district witnessed complete dry spell and there was no onset of monsoon in the said district. Due to the said reason, no letter was issued by the district authorities of Deoghar including the District Mining Officer to the mining lessees for the year 2016-17 to stop mining operation in the Sand Ghats in the monsoon season. It is further submitted that in the counter affidavit also, the stand of the respondents is that when there is a strict prohibition for lifting of sand in monsoon season, it is immaterial whether there was a dry spell during the monsoon season 2016-17. Thus, the said statement made by the respondents is an admission to the effect that there was no rainfall during the monsoon season for the year 2016-17 in Deoghar district. It is also submitted that in absence of issuance of any such letter by the district authorities prohibiting the petitioner from carrying out the mining activity during the monsoon season 2016-17 it can only be said to be a bonafide mistake on the part of the petitioner for which the lease agreement itself should not have been terminated by the respondent no.2. It is further submitted that during the monsoon period, no statutory challans like transit challans/transporters challan necessary for transportation of minerals are issued by the respective district authorities as the excavation and transportation of sand are stopped during the monsoon season, however, in the District of Deoghar during the year 2016-17, transit challans and/or statutory forms for transportation of minerals were issued to all settlees of Sand Ghats. Thus, the petitioner should not be made to suffer for the inaction on the part of the respondents themselves.