Birbal and ors. Vs. State of Uttarakhand and ors.

Birbal and ors. vs State of Uttarakhand and ors.

Disposition Petition dismissed Court Uttaranchal Decided Feb 15, 2010

~3 min read

https://sooperkanoon.com/case/902468

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/902468
Court: Uttaranchal High Court
Judge: J.S. Khehar, C.J. and; Sudhanshu Dhulia, J.
Decided On: Feb 15, 2010
Subject: Constitution
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of...

Key legal issue: Constitution
Outcome / disposition: Petition dismissed

Parties & Advocates

Appellant / Petitioner

Birbal and ors.

Respondent

State of Uttarakhand and ors.

Excerpt

.....dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a..........affected by the construction of the 13 kilometer motor road, it has been asserted in paragraph 13 of the joint counter affidavit filed on behalf of respondent nos. 2 to 4, that the state government has received the appropriate sanction from the various department for cutting 878 trees, which would fall within the path of 13 kilometer road. as such, it is sought to be asserted at the hands of the respondents that the proposal suggested by the petitioners is not only impractical, but also needless, in the facts and circumstances of this case.5. none of the assertions made in the joint counter affidavit filed on behalf of respondent nos. 2 to 4 (as have been noticed in the foregoing paragraph) has been repudiated at the hands of the petitioners in the rejoinder affidavit filed by the petitioners. thus viewed, it clearly emerges that village chaukiya and pandhar would fall on the 6 kilometer road referred to above, and would be thus connected to the 13 kilometer road presently under construction. insofar as village sajgori is concerned, the same is at a mere distance of 150 meters from the 13 kilometer road, and as such, we are satisfied that the same does not need any further connectivity with the 13 kilometer road.6. since the state government has already received the approval of the various departments for cutting the affected trees which would fall in the path of the construction of the 13 kilometer motor road, the objection raised by the petitioners on the issue of cutting of trees is also, in our view, not a valid justification for seeking realignment of the 13 kilometer motor road.7. for the reasons recorded hereinabove, we find no merit in the instant writ petition, and the same is accordingly dismissed.

Full Judgment

Sudhanshu Dhulia, J.

1. The respondents sanctioned the Tarikhet - Pipli - Majoorkhan motor road measuring 13 kilometers. The aforesaid motor road does not connect the three villages Sajgori, Pandhar and Chaukiya. Through the present writ petition filed in public interest, the petitioners claim connectivity of their villages Sajgori, Pandhar and Chaukiya with the aforestated motor road. It is the vehement contention of the learned Counsel for the petitioners that in case the proposed alignment suggested by the petitioners is accepted far less trees will have to be cut as would be necessary if the present sanctioned road is built.

2. Based on the aforesaid assertion at the hands of the petitioners notice was issued to the respondents, in response to which a joint counter affidavit was filed on behalf of respondent Nos. 2 to 4. The proposal made by the petitioners is sought to be repudiated by asserting, firstly, that the villages with which the proposed alignment is sought are located at a higher altitude making the project impermissible, and secondly, that the State Government has sanctioned another road Tarikhet - Pipli - Soladar - Chamarkhan measuring 6 kilometers, which would provide the required connectivity, as has been sought through this petition.

3. The Annexure CA-1 and CA-2 appended to the counter affidavit reveal that the villages Chaukiya and Pandhar would virtually fall on the 6 kilometer motor road, whereas, there is hardly any necessity to connect village Sajgori as the said village is at a mere distance of 150 meters from the 13 kilometer motor road.

4. On the issue of trees liable to be affected by the construction of the 13 kilometer motor road, it has been asserted in paragraph 13 of the joint counter affidavit filed on behalf of respondent Nos. 2 to 4, that the State Government has received the appropriate sanction from the various department for cutting 878 trees, which would fall within the path of 13 kilometer road. As such, it is sought to be asserted at the hands of the respondents that the proposal suggested by the petitioners is not only impractical, but also needless, in the facts and circumstances of this case.

5. None of the assertions made in the joint counter affidavit filed on behalf of respondent Nos. 2 to 4 (as have been noticed in the foregoing paragraph) has been repudiated at the hands of the petitioners in the rejoinder affidavit filed by the petitioners. Thus viewed, it clearly emerges that village Chaukiya and Pandhar would fall on the 6 kilometer road referred to above, and would be thus connected to the 13 kilometer road presently under construction. Insofar as village Sajgori is concerned, the same is at a mere distance of 150 meters from the 13 kilometer road, and as such, we are satisfied that the same does not need any further connectivity with the 13 kilometer road.

6. Since the State Government has already received the approval of the various departments for cutting the affected trees which would fall in the path of the construction of the 13 kilometer motor road, the objection raised by the petitioners on the issue of cutting of trees is also, in our view, not a valid justification for seeking realignment of the 13 kilometer motor road.

7. For the reasons recorded hereinabove, we find no merit in the instant writ petition, and the same is accordingly dismissed.

Same Court & Year Uttaranchal · 2010 Same Parties Birbal and ors. vs State of Uttarakhand and ors. Same Subject Constitution Same Judge J.S. Khehar, C.J. and; Sudhanshu Dhulia, J.

Constitution