M/s Mohan & Sanjay Stone Works through its partner Sanjay Kumar Yadav v. 1. The State of Jharkhand. 2. The Secretary, Department of Mines and Geology, Govt
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 1645 of 2022 --------- M/s Mohan & Sanjay Stone Works through its partner Sanjay Kumar Yadav... ... ... ... ... Petitioner Versus 1. The State of Jharkhand. 2. The Secretary, Department of Mines and Geology, Govt. of Jharkhand, Yojna Bhawan, Nepal House, Doranda, Ranchi. 3. The Deputy Commissioner, Sahebganj. 4. The District Mining Officer, Sahebganj. ... Respondents. --------- CORAM: SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. --------- For the Petitioner: For the State:
Legal Reasoning
Mr. Ajit Kumar, Sr. Advocate Mr. Anil Kumar, Advocate. Mr. Piyush Chitresh, AC to AG. ------- 10/05.10.2023: Upon hearing the learned counsel for the parties, this Court passed the following, (Per, Ananda Sen, J.)
Decision
O R D E R In this writ petition, filed under Article 226 of the Constitution, the petitioner has challenged the order dated 2.3.2022 passed by the Deputy Commissioner, Sahebganj, whereby and whereunder, the Deputy Commissioner has terminated the stone mining lease of the petitioner, which was valid upto 18.8.2024. Further, a prayer has been made to allow the petitioner to continue with the mining operation and a prayer has also been made to keep the impugned order of termination of the lease in abeyance. 2. Learned senior counsel for the petitioner submits that the impugned order has been passed without taking into consideration the reply to the show cause filed by the petitioner, as the petitioner has given a detailed reply controverting and dealing with issues raised by the respondents in their notice to show cause, but without considering the reply to the show cause notice, the impugned order has been passed. It is his contention that once the notice to show cause has been issued and the petitioner has replied to the said show cause controverting the allegation levelled, it was the duty of the authority to deal with the allegation and give reasons as to why the reply has not been accepted. He further submits that the allegation levelled against the petitioner is in respect of use of explosive irregularly in excess, to which a detailed point wise reply was given but the same has not been considered. He further submits that as per part 9 of the statutory lease agreement, if there is any breach of 2. conditions of the lease, the respondents are bound to give thirty days' prior notice to remedy the said breach and if no action is taken by the lessee, then only the lease of the lessee can be terminated. He further argues that in the instant case, thirty days' prior notice asking the petitioner to remedy the breach was not issued, thus cancellation order is bad. 3. Learned counsel for the State submits that several irregularities were found committed by the petitioner in the mining area and in the mining operation, thus vide letter No. 693 dated 19.7.2021, notice was issued to the petitioner to show cause as to why not his lease be cancelled. He further submits that the petitioner replied to the said show cause and thereafter also another show cause notice was issued on 3.2.2022, which was also replied by the petitioner. He states that as both the replies were found unsatisfactory, the impugned order of termination of the lease was passed. He further argues that during inspection, it was found that the conditions as mentioned in the Environment Clearance Certificate and Consent to operate were not strictly followed and the guidelines which were issued by the Ground Water Directorate/Central Pollution Control Board in relation to the rain water harvesting was also not followed. His further contention is that the stock register and the Labours' Register were also not produced by the petitioner during inspection. He states that there was violation of Sub-Rules (20) and (23) of Part 7 of the Jharkhand Minor Mineral Concession Rules, 2004 and there was no plantation in the mining area, thus no proper care of environment was being taken by the petitioner. He further submits that it was also found that the explosive, which was being used, was in excess of the permissible limit, thus the petitioner was violating the conditions of the lease. On these back ground, a decision was taken to cancel his lease, thus the petitioner is not entitled for any relief. 4. After hearing the parties, we find that admittedly the petitioner is a lessee for Mining Stone and the lease was executed for a period commencing from 18.8.2014 for a period of ten years. A notice to show cause was issued to the petitioner on 19.7.2021 alleging inter alia that during inspection of mining area on 9.7.2021, the following irregularities were found:- (a) Mining benching were at considerable height which is stiff and is not in accordance with the approved mining scheme. (b) no plantation was found at the mining area and boundary pillars were also not found, which is in violation of Rule 34-F of the Jharkhand Minor Mineral Concession Rules, 2004. Further there was violation of mining scheme as mining scheme provides for mining strategy deploy jack hammer drill and blast holes having burden 3. and spacing of 3m X 3.5m in “V” Shaped grid pattern, but the same was not found in the lease hold area. (c) During inspection, it was found that the explosives were used at one blasting, which is excessive, for which, excess number of holes, beyond approved limit were used. (d). The conditions mentioned in the Environment Clearance Certificate and Consent to Operate were not followed in its true letter and spirit. (e) Rain Water Harvesting was not in accordance with guidelines of Ground Water Directorate/Central Pollution Control Board. (f) During inspection, stock register and register of labours were not produced by the petitioner. 5. The petitioner thereafter filed a detailed point-wise reply to each of the allegations, which has been brought on record at Annexure-7 to the writ petition. It has been submitted that all the benching were as per the approved mining scheme and only on the basis of visual estimation, allegation No. (a) of the show cause notice was levelled. The petitioner submits that if any irregularity is found, they are ready to rectify the same. So far as pillering and plantation are concerned, the petitioner has stated that they have already placed the demarcation pillars and also demarcated the boundary and if any shortcomings are found they are ready to comply with the direction and rectify the same. So far as blasting is concerned, the petitioner has stated that the blasting is as per the permissible limit and as prescribed by the Director General of Mines (Safety). At no point of time, there was any objection from the Director General of Mines(Safety) in respect of blasting. So far as non-compliance of other directions are concerned, counsel for the petitioner submits that since no details has been given and the allegations are vague, it is not possible for him to give appropriate reply. So far as Labours' Register is concerned, it was mentioned that the petitioner is ready to produce the same as and when required. 6 After receipt of the detailed reply again vide letter No. 64 dated 28.1.2022, the respondents issued a similar notice, to the petitioner and the petitioner again replied the same. Again on 3.2.2022, the Deputy Commissioner, Sahebganj directed the petitioner to produce the documents in respect of explosive, invoices and details of the vehicles. The petitioner replied to the said notice stating in detail. Thereafter, vide impugned letter No. 195/M dated 2.3.2022, the lease was cancelled. 7. After going through the impugned order, we find that the Deputy Commissioner, Sahebganj had merely reiterated the irregularities, which were mentioned in the show cause notice and thereafter cancelled the lease, holding 4. that the reply is unsatisfactory. How the reply is unsatisfactory and why the reply to the show cause is rejected have not been mentioned in the impugned order. When a show cause notice is issued to a party seeking clarification and explanation on the allegations, and the party gives a details point-wise reply refuting all the allegations, then it is incumbent upon the authority to decide the said issue dealing with each and every point, which has been mentioned in the reply to the show cause notice. In the instant case, we find that the impugned order does not deal with the reply of the petitioner nor any reason has been assigned as to why the Deputy Commissioner is discarding the reply to the show cause notice, given by the petitioner. Further, we find that two of the allegations are absolutely vague, as no detail has been mentioned, as to which conditions and how the guidelines and directions given in the Environment Clearance Certificate and in Consent to Operate are being violated. Further there is no supporting facts to substantiate the said allegations. Merely, alleging that the rules/guidelines have not been followed, is not sufficient. What are the supporting facts to arrive at the conclusion that the guidelines are not followed, must be reflected in the notice, which is missing in the instant case. 8. The lease has also been brought on record. From Clause-3 of Part- 9 of the Mining Lease, it is apparent that if there is some violation and there is some breach, opportunity should be given to the lessee to remedy the said breach and thirty days' prior notice ought to have been given to the lessee. In the instant case, the aforesaid condition has admittedly not been followed and without giving any opportunity to remedy the breach, the impugned order has been passed, cancelling the lease of the petitioner. Be it noted that in reply to the show cause notice, the petitioner had given specific undertaking that if there is any breach of the conditions, they are ready to rectify the same. The lease is a statutory document, thus the respondent authority should have given opportunity to the petitioner to remedy the breach, if any. Without giving such opportunity, the respondent authority could not have cancelled the lease of the petitioner. 9. Considering what has been held above, we are constrained to set aside the impugned order dated 2.3.2022 passed by the Deputy Commissioner, Sahebganj, whereby and whereunder, the Deputy Commissioner has terminated the stone mining lease of the petitioner. We remand the matter to the Deputy Commissioner, Sahebganj to pass a detailed and reasoned order after issuing fresh detailed show cause notice and giving sufficient opportunity of 5. hearing to the petitioner, as early as possible, preferably within forty five (45) days from the receipt of a copy of this order. The petitioner will cooperate in the proceeding. It is also made clear that during the intervening period, the petitioner will not be allowed to operate the mines. 10. With the aforesaid observations and directions, this petition stands allowed in part. 11. 12. There shall be no orders as to costs. Urgent certified copy as per Rules. Anu/-CP2 (Sanjaya Kumar Mishra, C.J.) (Ananda Sen, J.)