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2012 Supreme(MP) 303
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S.K. Gangele and Brij Kishore Dube, JJ.
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Anil Kumar Sahu v. M/s. Shivshakti and Co. Gwalior and others
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Writ Appeal No. 572 of 2006 (Gwalior); against order dated 7.10.2006 passed in Writ pitition No. 1941/03;
Decided on 17.5.2012.
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Praveen Chauhan and Ajay Bhargava for appellant; None for respondent No.1; Raghvendra Dixit, Govt. Advocate for respondents No. 2, 3 and 4/State.
Headnote:¼1½ [kuu iV~Vk& losZ Ø- 953 rFkk 954 dk iV~Vk & losZ Øekad 953 dk iV~Vk ou Hkwfe gksus ls jn~n fd;k x;k & ,sls vkns’k ds fo#} fjV ;kfpdk [kkfjt dh xbZ & losZ Øekad 954 jktLo Hkwfe & 200 ;k vf/kd o`{k ugha [kMs+ & losZ Øekad 954 ls ou lhek dh nwjh 900 QhV & ek= iapukek fd ogk¡ dqN o`{k rFkk >kfM+;k¡ Fkha & fjV U;k;ky; us ;g ekuus esa fof/k dh =qfV dh gS fd losZ Øekad 954 dk iV~Vk Hkh voS/k Fkk & losZ Øekad 954 ds laca/k esa & fjV U;k;ky; dk vkns’k vikLr fd;k x;kA ¼IkSjk 7 ls 9
¼2½ [kuu iV~Vk& jktLo Hkwfe dk iV~Vk iznku fd;k x;k & 200 ;k vf/kd o`{k ugha [kM+s & iV~Vk Hkwfe ls ou lhek dh nwjh 900 QhV &ek= iapukek fd ogk¡ dqN o`{k rFkk >kfM+;k¡ Fkha & iV~Vk voS/k ugha Bgjk;k tk ldrkA ¼1997½ 2 ,l-lh-lh- 267 fufnZ”VA ¼iSjk 7 ls 9
(1) Mining Lease -- lease of Survey Nos. 953 and 954 -- lease of Survey No. 953 cancelled being forest land -- writ petition against such order dismissed -- Survey No 954 revenue land -- 200 or more trees not standing -- distance of forest boundary 900 ft. from Survey No. 954 -- mere panchanama that there were some trees and bushes -- Writ Court committed error of law in observing that lease of Survey No. 954 was also illegal -- in regard of Survey No. 954 -- order of Writ Court quashed. [Paras 7 to 9
(2) Mining Lease -- lease of revenue land granted -- 200 or more trees not standing -- distance of forest boundary 900 ft. from lease land -- mere panchanama that there were some trees and bushes -- lease cannot be held illegal. (1997) 2 SCC 267 referred to. [Paras 7 to 9
S.K. Gangele J.-
1. This appeal has been filed by the appellant against the order dated 07-10-2006 passed by the learned Single Judge in Writ Petition No. 1941/2003.
2. The respondent No.1 was granted lease vide order dated 16-05-2001 for a period of ten years for extraction of flag stones area 4 hectare of Survey Nos. 953 and 954 situate at village Jakhoda, Tehsil and District, Gwalior. The present appellant, also submitted an application for grant of lease. His application was rejected.
3. One, Awadesh Tiwari filed a Public Interest Litigation before this Court, which was registered as Writ Petition No. 861/2001. This Court vide order dated 23-01-2002 disposed of the writ petition with a direction to the Collector, Gwalior to take appropriate steps in view of the judgment of Hon’ble Supreme Court passed in the case of T.N. Godavarman Thirumulkpal v. Union of India (1997) 2 SCC 267 and if any lease was granted contrary to the direction issued by the Hon’ble Supreme Court, that be cancelled.
4. The Director, Department of Geology and Mining had taken the matter in suo motu revision in regard to grant of lease to the respondent No.1 and thereafter, the lease granted in favour of the respondent No.1 was cancelled by the Director, that was challenged by the respondent No.1 before the writ Court. The writ Court observed that the lease of the land which was granted in favour of the respondent No.1 was a forest land, hence, no lease could be granted in favour of the respondent No.1. In the aforesaid order, the Court also observed that the lease granted in favour of the present appellant, is also illegal and contrary to law.
5. Against the aforesaid order, the appellant filed an appeal, that was dismissed by the Division Bench of this Court. Thereafter, a Special Leave Petition was filed by the present appellant before the Hon’ble Supreme Court, which was registered as S.L.P. (Civil) No(S). 1365-1366/2009. The Hon’ble Supreme Court disposed of the SLP with the following observations and remanded the matter back to this Court, after quashing the order passed by the Division Bench of this Court:-
7. “We have carefully considered the order of the Division Bench of the High Court and we find that the order does not deal with the most relevant and important aspect as to whether or not part of Survey No. 954 of which mining lease has been given to the appellant falls within a forest land as laid down by this Court in T.N. Godavarman Thirumulkpad (Supra) The Division Bench ought to have gone into this question as we find that in survey resport of Divisional Forest Office, Gwalior, dated May 22.2001, as regards Survey No.954 nothing is stated that the land has 200 or more trees standing thereon. The report dated May 22, 2001 basically deals withs Su rvey No.953 and records that Survey No. 954 is at the distance of 900 ft. from the boundary of forest and then gave the details of Survey No.953.
8. On the short ground of non-consideration of the most vital aspect as to whether part of Survey No. 954 is a forest land or not, the matter has to go back to the Division Bench for re-hearing and reconsideration.
9.Consequently, the Appeals are allowed as indicated above. Writ Appeal No. 572 of 2006 is restored to the file of the High Court of Madhya Pradesh, Gwalior Bench, for fresh hearing and decision in accordance with law. No cost.
10. The parties shall appear before the High Court of Madhya Pradesh, Gwalior Bench, on February 27, 2012.”
6. The Hon’ble Supreme Court has observed that the present appellant was granted lease of the land of Survey No.954 situate at village Jakhoda, Tehsil and District and it was obligatory on the part of the Division Bench to consider the fact that whether the Survey No.954 is a forest land or not? Whether 200 or more trees have been standing over the land of Survey No.954 or not ? Whether the land of Survey No. 954 is at the distance of 900 ft. from the boundary of the forest or not ?
7. We have perused the record of
