IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1663 of 2010 1. M/S NARAYANI ENTERPRISES , THROUGH ITS PARTNER SHAILENDRA KUMAR SINGH S/O LATE JITENDRA BAHADUR SINGH R/O MOH EAST BISAR TANK NEAR SIDE OF DEVISTHAN, P.S.CIVIL LINES, DISTT-GAYA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY CUM COMMISSION, THE DEPARTMENT OF MINES AND GEOLOGY BIHAR,PATNA 3. THE DISTRICT MAGISTRATE GAYA 4. DIVISIONAL FOREST OFFICER GAYA DIVISION, GAYA 5. ASSISTANT DIRECTOR MINES GAYA 6. CIRCLE OFFICER WAZIRGANJ, GAYA ----------- 3/ 28/03/2011 Heard learned counsel for the petitioner and learned counsel for the State representing both the Department of Mines and the Department of Forest. The petitioner is aggrieved by the order dated 15.1.2010 passed by the Assistant Mining Officer, Gaya terminating his mining lease on the twin grounds that no lease could have been granted as the lands in question were forest lands and there was no clearance under Section-2 of the Forest Act and that the petitioner had defaulted in payment of the third installment of royalty notwithstanding a notice dated 11.11.2009 given for the purpose. The petitioner is stated to have been granted a mining lease upon certain lands at Mauza-Pathra, District- Gaya for extraction of rocks and sale after pulverizing them. The lease by open settlement was granted on 12.3.2007 for a period of five years to expire on 11.3.2012. Learned counsel for the petitioner submits that before granting the lease the Department of Mines had sought clarification from 2 the Forest Department which by its letter dated 29.9.2000 confirmed that the area demarcated was not a notified forest. It was only then that bids were invited and the settlement made. The petitioner commenced operations, was interrupted, resumed operations by virtue of the interim order of the Court dated 4.3.2010 and continues to do so. Learned counsel for the Department of Mines submits that it acted in the settlement based on the clearance given by the Forest Department that the lands in question did not fall within the forest area. Now that the Forest Department on 9.1.2010 has informed that the lands in question are in the forest area, the Department of Mines has no option but to cancel the lease in absence of clearance under Section-2 of the Forest Act. Dealing with paragraph-6 of the writ application in context of the clearance given by the Department of Forest on 29.9.2000, the Forest Department in its counter affidavit virtually questions its own order to say that it was a forest and permission of the Central Government under Section-2 of the Forest Act was essential. Though counsel for the petitioner has sought to persuade this Court from his rejoinder that the land was not a notified forest by placing reliance on the Khatiyan entries, this Court is not persuaded to start that 3 adjudication in the present proceedings when it is the clear case of the Forest Department that the area falls under the forest area as defined under the Forest Act. It was the Department of Mines, on an assurance of Department of Forest, that made invitation to offer to the petitioner. If the invitation to offer had not been made, there was no occasion for the petitioner to bid. In view of the subsequent stand being taken by the respondents, clearly the petitioner has been wronged admittedly. Who was at fault, the Forest Department or the Department of Mines, is for the two of them to sort out and it is not the concern of the petitioner. Once this Court has held that the petitioner has been wronged, the question next arises of restitution. The State cannot simultaneously claim that it made a wrong grant contrary to the law and yet seek to penalize the petitioner for not complying with the illegal agreement by defaulting any payment of royalty, but those are matters to be considered appropriately with regard to the respective liabilities insofar as the aspect of restitution is concerned only. The petitioner is stated to have made heavy investments in pursuance of the grant as mentioned in paragraph-12 of the application of men and materials. He was required to make a total payment of Rs.8,70,550/- for one acre of lands under the settlement and is stated to have 4 deposited four installments. But he has also had the benefit of extraction of stones and profit therefrom, but again he has also paid royalty. The present is not a simple case of controversial facts but of admitted facts. Therefore, the petitioner is held entitled to be compensated proportionately at all stages after appropriate adjustment of the benefit that he may have had and the premature termination of the lease keeping in mind the date till which he may have operated and royalty paid thereupon. Let the petitioner represent before the District Magistrate, who shall then grant a personal hearing to the petitioner, examine his claims and documents and then pass a reasoned and speaking order on the aspect of restitution within a maximum period of four months. This shall be without prejudice to the rights of the petitioner to avail such other and/or appropriate remedies that he may be advised with regard to any claim for damages etc. for premature termination of the lease. For reasons as mentioned in the aforesaid discussion this Court finds it difficult to interfere with the impugned order dated 15.1.2010. The writ application stands disposed with directions. KC ( Navin Sinha, J.)