Nagendra Kumar Tripathi vs State of U.P. and Others

Heard learned Counsel for the Petitioner.

By this writ petition, the Petitioner has prayed for quashing the order dated 30.01.2010 passed by Prabhari Van Adhikari (Annexure 1) and the order dated 21.05.2010 passed by District Magistrate, Chitrakoot (Annexure 7).

By the impugned order the Prabhari Van Adhikari has written to the District Magistrate refusing to grant No objection certificate to the mining lease application with regard to Plot No. 4000-kha. It has been mentioned in the report that on a joint inspection held on 12.06.2008 on Plot No. 4000-kha Area 83.97 hectare has been identified as van swaroop in accordance with the judgment of the Hon''ble Apex Court in the case of T.N. Godavarman Thirumulkpad Vs. Union of India and others, The Apex Court in the aforesaid case has issued general directions that mining activities in forest is not permissible. Following was laid down in paragraph 5.1 of the aforesaid judgment:

In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any "forest". In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or plywood mills, and mining of any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure total cessation of all such activities forthwith.

The learned Counsel for the Petitioner contends that in the aforesaid plot, a lease of 5 acres has already been granted to some other person. He has referred to a report dated 15.02.2006 at page 23 Annexure 2. The report dated 15.02.2006 Annexure 2 indicates taht a report was submitted with regard to Plot No. 4000-Kha and 4452-Kha stating that the said plot has been identified as van swaroop, but an area of 5 acres is without any vegetation. The said report which was made on 15.02.2006 with regard to the aforesaid 5 acres cannot be the basis for allowing No objection certificate to the Petitioner. In the impugned order, it has been specifically mentioned that Plot No. 4000-kha has been identified as van swaroop by report dated 12.06.2008, whereas the report which has been relied by the Petitioner is dated 15.02.2006, in the subsequent report when the entire plot 4000-kha area 83.97 hectare has been identified as van swaroop, we do not find any error in not granting No objection certificate to the Petitioner. The subsequent report dated 12.06.2008 is basis for passing of the impugned order and hence, we do not find any error in the impugned order.

The submission of the learned Counsel for the Petitioner is that when on the basis of the report dated 15th February, 2006 mining lease was granted the denial of such benefit to the Petitioner is discreminatory and violative of Article 14 of the Constitution. He submit that No objection certificates were granted on the basis of said report dated 15th February, 2006.

The report dated 15th February, 2006 which has been filed as annexure-3 to the writ petition clearly mentions that Plot No. 4000 Kha and Plot No. 4452 Kha is mostly covered and several trees and bushes are there which make it Van Swaroop. The report also refers that 5 Acre area is without vegetation. The ultimate recommendation in the report was that No objection be not granted with regard to the entire plot except the aforesaid 5 Acre land. The report clearly does not recommend grant of No objection even for 5 Acre land. However, the lease was granted for 5 Acre. There are two reasons for not accepting the aforesaid submissions firstly the report dated 15th February, 2006 is no longer continuing in view of the report dated 13th January, 2010 to the effect that above land has been declared as Van Swaroop hence No objection cannot be granted. The report dated 13.01.2010 has been filed as Annexure 1 to the writ petition which refers to a joint report under the District Magistrate dated 12.06.2008 in which report Plot No. 4000-kha has been declared as Van Swaroop. The subsequent report clearly does not recommend grant of any No objection hence no error has been committed in rejecting the application for grant of mining lease.

Secondly the mere fact that the authorities have taken a particular decision in a case cannot be the basis for issuing a mandamus contrary to law. Granting lease on the area which has been declared as a forest area will be issuing direction contrary to law. The Authorities cannot be compelled to repeat the illegality or pass another unwarranted order as has been laid down by the Apex Court in the case of Chandigarh Administration and another Vs. Jagjit Singh and another,

In view of above, we do not find any error in the impugned order rejectig the application of the Petitioner for grant of mining lease on part of plot No. 4000 Kha with regard to which the pryer of granting No objection certificate has been rejected. Petitioner is not entitled for any relief in the writ petition. The writ petition is accordingly dismissed.