:'^-; •^•^.^-^^7\• l3 8i BSFORE HON'BIS HIGH COURT OF CHH.MTISGARH AT BILASPUR(C .Gi! c c VB11 ffiTITION N0. . .""'.". . .2005 PETITIOHBR :^/'ROSHAN LAL DSSHHCKH S/0 SHRI RAMCHAKaN DESHMUKH ASED 55 Years, > R/0'.'Borsi, DDRGg Tbhsll~.& Dis-tt. OURG (C.G.). ^^..la Rii.w«..."—;;-7C/-,'2. p,eMBt«4^3u(<—-"": RE3PONDBNT3 (1) 3TATE OF GHHaTTISGARH ^w^ ^- "7TS Through:- Princlpal Secretary, mning Itepartment Govt.of C.G. Ralpur (C.Gj. .^ ,.!?^ -i.'''^ .f -ii(2) The Collector (Hinl.Bg-Branch) Throagh ;- ffiaiag OSSicer, Mining Br-anch Collec-torate Durg (C.G.). (5) DGRG RAJNAHDGAON GRAMIN BA%, gp Through '•- Ger»ral Manager, D.R.G.B. Head Offlce RAJNANDGAON (C.G.) ^-u.^-^t'7 -<i? ?':- .fycr ;?l> '' .-^^ ' 1» " / '-.^^* ..^1 ^'1)^' :-—'^. 'NCH^S 53ction S^°^t!futi°R^Se-Ge"' cn»S.T.!-fiis8&'1 [vrftell contd...2 ".'I. i3.l ottfiee "; • • 7 • • • • ^ • • PETITION GRDER ABTICtES 226/227 OF THE CONSTITUTIOK OF INDIA. <? HI&H COURT OF JUDICATURE AT 8IL,a.SPUR fCHHAmse^RH) Writ PeTitten No.04 of Sooai Pade -Versus- State of ChhaTtisgarh and 03<4ers Wrs* PtttjtJonNo.OS ef 2005 Roshanlal Deshmukh \ -Versus- StaTe of Chharrisgarh cnd othe"s Writ Pstttion No,08 of 2005 Sannsh Kumar Pade -Ver'sus- 5'i'ate of ChhcTtisaarh and others Santosh Kuma" Pade -Versus- 5tste of Chhattisgarh and other5 Writ Petition No.IO of 200 Harishaikar Kumbhkar -Versus- State of ChhGttisaarh ond others 'u\ 1.2005 .A^.—.._— Sd/- L.C. Bhadoo Judge HIGH COURT OF JUDICATURE AT BILASPUR, CHHATTISGARH Writ Petition No.04 of 2005 GopalPade - Versus - State of CUiattisgarh aad others Writ Petition No.05 oft2005 Roshanlal Deshiaukh - Versus - State of Ch^iatdsgarh aud ofhers '•».- Writ Petltion No.08 of 2005 Santosh Kuiuar Pade - Versus - State of Chliattisgarh and oftiers Writ Petitioa No.09 of 2005 Sautosh Kumar Pade - Versus State of Chliattisgarb and ofhers Writ Petition Np,10of20Q5 Harishankar Kumbhkar - Versus - State of Chhatdsgarb aad others Present - Mr. V.G. Tamaskar, Advocate: Mr. Suniesh Bajaj, Dy. Govt. Advocate: For the petitioners. For the State /respoudents No.l & 2. ORDE fPassed on / pr //MJanuan', 2005) L.C. BHADOO, J. 1. Writ Petition No.04/2005 (Gopal Pade vs. State of Chhattisgarh and others); Writ Petition No.05/2005 (Roshaalal Deshmukh vs. State of Chhattisgarli aud others); Writ Petition No.08/2004 Poge 2 of 6 ftff' (Santosh Kuinar Pade vs. State of Chliattisgarh aud otliers); Writ Petition No.09/2005 (Santosh Kumar Pade Vs. State of Chliattisgarh and others) & Writ Petition No. 10/2005 (Harishaiikar Kltnibhkar Vs. State of C.G. and ofhers) arc beiag disposed of by this common order, as in aU these petitions a coTnnion questions offact and law is involved. 2. By these writ petitions the petitioners have questioned fhe legahty, propriety aad». concctaess of fhe orders dated 27.12.2004 purported to have been passed under Section 247 (5) of the C.G. Land Revenue Code, 1959 (liereinafter shaU be referred as ' the Code, 1959) by respondent No.2- CoUector (Miaing Branch) whereby each of fhe petitioners has been prohibited froni carrying on fhe business of ittaailfacturing of bricks io. fhe laiid aientioned ia fhe impugned orders. 3. The petitioners cases in these writ petitions are that they were ^rauted mining lease by fhe CoUector (Mining Braiich) vide order Annexure P-1, said Tnining lease was granted to fheni for the purpose of laanufacturuig of bricks on a private land belonging to flie fanuly of fhe petitioners aad for which each of the petitioners obtaiiied the consent letter from. C.G. Environinent Conservation Board. The petitioners were also granted Tax Payer's Identification Nuinber (TIN) and fhe certificate of registration was also issued by fhe General Maaager, District Trade & Industries Centre, Durg. As the area faUs under the jurisdiction of Gram Panchayat Albaras, r fherefore, each of the petitioners was- granted permissioa by the said Gram Paachayat for raaaufacturing of bricks under the Page 3 of 6 resolutiou passed by fhe said Gram Paachayat. For ninning the business of inaaufacturing of bricks each of the petitioners has obtaiued loan from. the Baiik. However, the Mining Braach of District Collector, Dui^ issued a show cause notice to each of the petitioners on 1.10.2004 of which each of fhe petitioners has filed reply, but the CoUectof^ (Muiing Braach) without considering the reply of ffae petitioners probably uader political iafluence restramed fhe petitioners froin continuing fheir business of niauufacturiug of bricks iu exercise of powers under Section 247(5) of fhe Code, 1959. Therefore, it has been prayed that fhe impugned oiders be quaslied. 4. In writ petition. No.04/2005 retum on behalf of respondent No.l 85 2 Iias been filed wifh an application fhat saine inay be adopted as retum of ofher writ petitioas also. In the retura, the graat of working permission under C.G. Mines & Miaerals Rules, 1996, issuaace of show cause aotice and filmg of reply by each of fhe petitioners have been adtuitted. It has been ruentioned ia tfae retum that respondent No.2 has never received aay coinplaint of the workers, fhe iuipug-aed oider has been passed as an interim ineasure, as law aad order situation had ansen ilt the area and the Gram Pancbayat Albaras had passed the resolution dated 27.9.2004 fhat the bricklm operatmg in the Gram Paachayat area be closed on accouat of serious « irregularities. Respondent No.2 acted upon the Gram Paachayat resolution directed fhe Mining Inspector, Naib Tehsfldar, Mining Officer and Miniag Sutrveyor to imiuediately enquire iato fhe matter aad subinit their reports. AU these of&cers have submitted their reports on 29.9.2004 (Armexure Rl-2) and Pcge 4 of 6 sss" based on that respondent No.2 issued show cause notice on 01.10.2004 to each of the petitioners. Respondeut No.2 fixrther constituted a coiiunittee of six of&cers and directed theni to deiaarcate the lease area of each of fhe petitioners and to subniit their report. Naib Tehsildar subraitted his report vide Annexure R 1-4 aad ia its report Naib TehsUdar fouud fhat there was certaui aaoiualy and irregularities with regard to fhe tenns and conditions agree^ by each of the petitioners whfle entering into the agreeineuf along with the respondents. Petitioners were fouiid guilty for illegal mining outside the area granted to fhem., therefore, proceediags were iaitiated by fhe Upper Collector under Section 247 (7) of the Code, 1959, same is pendiag adjudication, fiiial order on fhe same is yet to be passed and fhe impugned order has been passed as an uiterim. laeasure. 5. I have heaid leamed couiisel for tlie petitioaers Mr. V.G. Tamaskar & Mr. Suiuesh Bajaj, Deputy Goveminent Advocate forfhe State/ respondentNo. 1 & 2. 6. Leamed counsel for the petitioners Mr. Tamaskar argued that ui fhe present cases provisions of Section 247 (5) of the Code, 1959 are not appUcable, as fhe inining lease was graated to fhe petitioners under C.G. Miaes &, Mrueral Rules, 1996, show cause notice was issued under these Rules aad reply of the same was also filed, fherefore, respondent No.2 coiild have passed fhe order under fhese rules. As such, the iiapugned orders are 1 • whoUy wifhout jurisdiction, wnt petitions are inaintauiable aud impugned orders are Uable to be quashed. _.____- - Page 5 of 6 7. On the ofher hand, Mr. Bajaj subinitted that the orders in question have beeil passed as an iateriia ineasure and flaal orders are yet to be passed. 8. Haviag heard leamed coiiasel for tlie parties, I have perused fhe record. Perusal of show cause notice shows ttiat saiue was c^ issued iinder C.G. Muies & Miaerals Rules, 1996 aad fhe petitioners were asked to,show cause about fhe violation of sub- rules 11, 12 &, 13 of Riale 30 aad RiUes 44, 45 & 46, but abruptly fhe impugned orders have been passed iinder Sectioa 247 (5) of the Code, 1959. Pemsal of C.G. Mines & Minerals Rules, 1996 shows that tbe CoUector- Miaiag Braach can impose fbie penally, if any violation is found, but in fhe present case the Collector, Mining wifhout consideruig fhe Miuins Rules aU of a sudden passed the impugned orders under Section 247(5) of fhe Code, 1959 asking the petitioners to stop niaaufacturing of bricks and mining operations. Therefore, impugned orders are not sustainable at law. 9. Sub-section (5) of Section 247 of the Code, 1959 envisages that "no assignee of the Goverrunent shatt enter on or occupy the sui-face of any land without the previous sanction of the Collector, and unless the compensation has been detennined and teivlered to the persons whose rights are infringed. Sub-section (4) envisages fhat " if, in the exercise of the rights of any person ccre infringed by ihe occu.paiion or disturbance of the surface of land, the Covemmenf or its assignee shall pay to such persons compensation for such j infringeinent....'. Leamed Deputy Goveminent Advocate was not able to point out fhat how these provisions are appUcable in the page 6 of 6 present cases. It is an adinitted position fhat petitioner Gopal Pade's lease is upto 3.1.2014, Harishankar Kuinbhkar's lease is upto 17.12.2013, Sautosh Kumar Pade's one lease is upto 13.3.2007 in respect of land Khasra No. 719(P) and other lease m respect of Khasra Nos.709/12 & 710 is upto 23.09.2006 and Roshanlal DeshiauMi's lease is upto t3.12.2008. Therefore, ia atl the cases petitioners are workiag iinder the vaUd lease and have also obtam.ed necessary clearaace certificates fi-oin -\-----"--' all other concemed departinents. 10. In the result, I am of fhe opiruon fhat the impugned orders dated 27.12.2004 are not sustaiaable at law, same are liable to be quashed, therefore, they are hereby quashed. However, respondent No.2 is not precluded froni pioceedin^ wifh fhe ruatter ia accordauce wifh the relevaut niles and law. 11. Witb. fhe aforesaid, fhe petitions aud M.W.Ps are disposed of. Sd/- L.C. Bhadoo Judge Roshan./ - ^/ \.fa'^ \y-