SHIVA STONE CHIPS Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition has been filed for issuance of writ of certiorari for quashing the letter/order contained in memo no. 734 dated 27.04.2016 (Annexure- 5 to the writ petition) whereby the petitioner has been communicated 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 02.01.1953.

(2.) The factual background of the case as stated in the writ petition is that a registered lease deed dated 25.02010 was executed between the petitioner and respondent no.2 for the operation of mining activities over the aforesaid leased land for the period from 21.02010 to 20.02020 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 208.2001 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 101.2016 (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. on 20.01.2016 at 11.00 a.m. The petitioner appeared, but no proceeding was taken up on the said date by the respondent no. Thereafter, another notice was issued to the petitioner as contained in memo no. 334 dated 05.03.2016 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 05.03.2016 though referred memo no. 433 dated 21.01.2016 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 20.01.2016 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 27.04.2016 that its mining lease for remaining period has been cancelled with immediate effect by the respondent no. 2 vide his order dated 26.04.2016. Hence, the present writ petition.

(3.) Learned counsel for the petitioner has primarily assailed the impugned order contained in memo no. 734 dated 27.04.2016 on the ground of non-observance of the principles of natural justice. It is submitted that though vide order dated 26.04.2016, the mining lease of the petitioner was cancelled, yet the same was not communicated to the petitioner. Learned counsel for the petitioner further submits that the said order dated 26.04.2016 has not even been brought on record by the respondents in their counter affidavit(s). 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 26.04.2016, 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 27.04.2016 discloses any consideration of the petitioner's reply while cancelling the subsisting mining lease.