IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3683 of 2010 1. HARENDRA TIWARY S/O LATE DEV NANDAN TIWARY R/O VILL.- GRAM CHAINPUR MOOBARKPUR, P.O.- CHAINPUR, P.S.- SISWAN, DISTT.- SIWAN Versus 1. THE STATE OF BIHAR 2. THE REVENUE SECRETARY GOVT. OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE SIWAN, DISTT.- SIWAN 4. THE DISTRICT MINES OFFICER SIWAN, DISTT.- SIWAN 5. THE CIRCLE OFFICER SIWAN, DISTT.- SIWAN 6. THE SECRETARY MINES DEPTT. GOVT. OF BIHAR, PATNA 7. THE COMPETENT OFFICER CUM MINES INSPECTOR DISTRICT MINES OFFICE, SIWAN, DISTT.- SIWAN with CWJC No.3904 of 2010 1. RAMA SHANKAR SHAHI S/O RAM PARSHAN SAHI R/O VILL.- DEOPURA, P.O.- DEOPURA, P.S.- DEOPURA, DISTT.- SARAN AT CHAPRA Versus 1. THE STATE OF BIHAR 2. THE REVENUE SECRETARY GOVT. OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE SIWAN, DISTT.- SIWAN 4. THE DISTRICT MINES OFFICER SIWAN, DISTT.- SIWAN 5. THE CIRCLE OFFICER SIWAN, DISTT.- SIWAN 6. THE SECRETARY MINES DEPTT. GOVT. OF BIHAR, PATNA 7. THE COMPETENT OFFICER CUM MINES INSPECTOR DISTT. MINES OFFICE, SIWAN, DISTT.- SIWAN ----------- 3. 10.01.2011 Heard learned Counsel for the petitioners, for the State of Bihar and the Department of Mines. The facts of the case being largely identical and the questions of law being common both applications are being disposed by this common order. In both cases on 16.3.2010 a Bench of this Court by individual orders had directed separate counter affidavit to be filed on behalf of the State and the Mines Department in view of nature of the questions involved. Notwithstanding the same the State has chosen not to file any counter affidavit separately rather a composite counter affidavit has been filed on behalf of the State and the Department of Mines. No separate submissions have been made on behalf of the State. The petitioners claim to be lessees of certain land from the land owner situated in Mauza Mehdar, PS Siswan, District Siwan. They are both aggrieved by order dated 17.2.2010 2 issued by the competent officer cum Mines Inspector, District Mines Office, Siwan, directing them to stop operation of the brick kiln being run by them, failing which appropriate action shall be taken on the ground that the lands upon which the brick kiln was being run was a Gairmazarua government land. Learned Counsel submits that the petitioners are under lease hold possession of Khata no. 9 Plot nos. 50 & 55 respectively from the lawful owner, whose name also stands recorded in Register II and who is paying rent to the State of Bihar. The petitioners hold a valid licence from the Mines Department of the State Government and have been paying royalty. At the relevant point of time they also possessed valid clearance from the Bihar State Pollution Control Board. A fishing enquiry has been generated years later with regard to the zamabandi created in the name of the landlord and even while the proceeding is pending the petitioners have been prohibited from operation of the brick kiln. Learned Counsel for the Department of Mines from the composite counter affidavit submits that Zamabandi Cancellation Case Nos. 31 & 32 of 2009-2010 had been started by the Circle Officer as the zamabandi was wrong. The lands were gairmazarua in nature belonging to the State of Bihar. The zamabandi was therefore fake and fraudulent. From the composite counter affidavit, the undisputed facts emerging are that the enquiry in the zamabandi is pending. At this stage it would be premature to state that whether it would result in cancellation or not. The zamabandi entries are for the purpose of revenue collection and have no co relation 3 with the question of title. No encroachment proceedings have been initiated. The counter affidavit is completely silent as to when the zamabandi was created and when the respondents came to know about its being wrong and how. The petitioners have annexed rent receipts for the land in question as far back as from the year 1994-95. The show cause notice dated 2.2.2010 is extremely vague and appears to be attempting a fishing and roving enquiry in the hope of finding some materials. Contrary to the government records which would itself show how zamabandi was created and on what basis is sought to be cast upon the landlord as a burden. The language used satisfies the Court that even the author was not very sure of the nature and kind of notice he was issuing based on what nature of illegality in the zamabandi. The counter affidavit takes it beyond the pale of controversy that the licence given to the petitioners for operation of the brick kiln has not been cancelled till date. There is no allegation of violation of conditions of the license. No show cause notice was given before issuance of the impugned order dated 17.2.2010. In the entirety of the facts and circumstances of the case the Court is satisfied that there is no justification in law or on facts at this stage for issuance of the order dated 17.2.2010 directing the petitioners to stop operation of the brick kiln. So long as the petitioners had valid license from the Department of Mines and a subsisting clearance from the Bihar State Pollution Control Board operation the brick kiln cannot be interfered with except in accordance with law. The notices dated 17.2.2010 are accordingly set aside. 4 The writ applications stand allowed. Snkumar/- (Navin Sinha,J.)