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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

WPC No.2439 of 2014

Vimal Parakh S/o Shri Hukumchand Parakh Aged About 38 Years R/o

Mahamaya Chowk, Rajim Police Station Rajim, District Gariyaband C.G.

---- Petitioner

Versus

1. State Of Chhattisgarh And Ors. S/o Through The Secretary , Mining

Department Mahanadi Mantralaya New Raipur Distt. Raipur C.G.

2. The Collector Mining Branch Dhamtari District Dhamtari C.G.

3. The Mining Officer Dhamtari, Distt. Dhamtari C.G.

4. The Assistant Mining Officer Dhamtari, Distt. Dhamtari C.G.

5. The Gram Panchayat Kathouli, Through The Secretary, Gram

Panchayat Kathouli, Tahsil - Kurud, District Dhamtari C.G.

---- Respondent

For Petitioner

:

Shri Prateek Sharma, Advocate

For Respondent/State

:

Shri R. K. Gupta, Dy.A.G.

[Single Bench: Hon'ble Shri Justice Manindra Mohan Shrivastava]

Order On Board

13/10/2015

This petition is directed against order dated 25-08-2014 passed by the

Collector in purported exercise of power under Rule 59, reviewing earlier

prayer for grant of lease and cancelling the lease of the petitioner.

2.

The sole ground, on which, the impugned order assailed is that the

impugned order is in excess of jurisdiction in as much as, before reviewing the

order of grant of lease, the Collector has not sought prior sanction of the

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Director, as mandatorily required under Rule 59 of C.G. Minor Mineral Rules,

1996 (In short “the Rules of 1996”).

3.

Learned counsel for the petitioner argued that the power of review

conferred on the Director/Collector on its own motion, is circumscribed by pre-

conditions. If the Collector proposes to review any order, he is required to first

obtain the sanction in writing of the Director. This having not been done, the

order is void as mandatory pre-condition of exercise of power has not been

complied with. It is next submitted that in any case, no case for review is made

out because sub rule (2) of Rule 59 provides that no order shall be reviewed

except on the grounds provided for in the Code of Civil Procedure, 1908. The

grounds, on which, the lease has been cancelled reviewing earlier order of

grant of lease, is based only on new objections.

4.

On the other hand, learned State counsel firstly raised the objection with

regard to maintainability by submitting that against the impugned order, the

petitioner has remedy of filing an appeal before the Director. However, without

filing the appeal, the petitioner has filed this petition. Next submission of

learned counsel for the State is that the requirement of first obtaining sanction

in writing of the Director has been substantially complied with in as much as

earlier when lease was canceled and appeal was preferred, the appellate

authority had an occasion to examine the grounds, on which, the cancellation

was made. The appellate authority having found that the principles of natural

justice were not followed, set aside the order of cancellation of lease and

remanded the case to the Collector to pass appropriate orders on merits after

affording opportunity of hearing. This, according to learned State counsel,

amounts to granting sanction, therefore, after remand, the Collector was not

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required to again obtain the sanction of the Director/Appellate Authority. It is

next contended that the after lease was granted in favour of the petitioner, the

residents of the area, particularly the agriculturist raised serious objection that

if the petitioner is granted lease for operating crusher machine, it will have an

adverse impact on residents of the area and surrounding agriculture fields and

crop. He next submits that earlier without proper information and under

mistaken belief that lease was being granted for quarry, the Gram Panchayat

had given its consent. Later on, when it was clarified that in fact, the activity

proposed on the said land would be that of crushing of stone by machines

which is comparatively much more pollutin