1. Heard Mr. B.P.Nautiyal, Senior Advocate assisted by Mr. Jayavardhan Kandpal, Advocate, for the petitioners and Mr. K. C. Tiwari, Brief Holder for the State of Uttarakhand.
2. The petitioners have challenged the order dated 16.12.1996 whereby the State Government in exercise of power under Rule 78 of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 (from hereinafter referred to as the “Rules”), as presently applicable in the State of Uttarakhand, has cancelled the mining lease of the petitioners.
3. Brief facts of the case are that vide orders dated 27.6.1994, 2.6.1994 and 29.6.1994 the petitioners were granted mining lease for extracting/picking minor minerals. These lease deeds were executed consequent to an order passed by appropriate authorities. One of the orders which have been referred to (though not annexed by the petitioners) is the order dated 8.6.1994. Subsequent to the lease deeds executed, the District Magistrate moved a report before the State Government stating that these lease deeds could not have been executed as the land in question lies under the forest area and it is in violation of Section 2 of the Forest (Conservation) Act, 1980 (from hereinafter referred to as Act). Section 2 of the Act reads as follows:-
“2. Restriction on the dereservation of forests or use of forest land for non-forest purpose.- Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing,-
(i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation].
4. In short, no non-forest activity (as the mining undoubtedly is non-forest activity) can be done in a forest area unless and until prior permission of the Central Government is obtained. This being the position of law, the stipulated conditions of the Forest Conservation Act were violated. Moreover, District Magistrate had also given reference of forest conservation while passing the subsequent lease in favour of the petitioners. Consequently, State Government while invoking its revisional power under Rule 78 of the Rules gave notice to the petitioners, and after hearing the petitioners passed an order of cancelling the lease deeds, which were granted to the petitioners. The petitioners had approached the Allahabad High Court (the writ petition was filed before Allahabad High Court being writ petition no. 9762 of 1997). The writ petition was subsequently stood transferred to this Court under Section 35 of the Uttar Pradesh Reorganisation Act, 2000. A learned Single Judge of Allahabad High Court had passed an interim order on 5.2.1997, which reads as follows:-
“Learned Standing Counsel is directed to file counter affidavit within three weeks. Until further orders, it is directed that if the petitioner’s mining lease in for non-reserved forest area, the operation of the impugned orders dated 16.12.1996 and 24.01.1997 so far suit relates to petitioner shall remain stayed.”
5. The contention of petitioners is that they are conducting mining in the forest area. Moreover, under rule 78 of the Rules the State Government can pass order stopping the implementation of the order only with regard to order passed by the District Officer Committee. In that circumstances the last order can only be passed by District Officer Committee. However, in the present case, the order which has been set aside by the State Government (while exercising its power under Rule 78 of the Rules) has not been passed by any other authorities but only by the District Officer Committee. This contention of the petitioners is absolutely misconceived for the following reason:
6. Admittedly the mining lease has been granted to the petitioners in a forest land. This was in clear violation, inter alia, of the Act as already referred above. Moreover, State Government has power to cancel its order of granting lease under power given under Rule 59, 60 as well as 78. Rule 78 has already been referred above. Rules 59 and 60 of the Rules are quoted below:-
“59. Consequences of contravention of certain conditions.- Any lessee holding a mining lease who commits a breach of any of the conditions provided in Rules 44 and 46 (relating to inspection of workings and weighing machine) shall on conviction be punishable with imprisonment of either description for a term which may extend up to six month or with fine which may extend to one thousand rupees or with both.
60. Consequences of contravention of rules and conditions of lease generally.- (1) In case of any breach or contravention by a lessee of any of these rules or conditions and convenants contained or deemed to be contained in the lease except those relating to payment or royalty, rent after giving the lessee a reasonable opportunity to state his case determine the lease. This right shall be in addition to and without pejudice to the provisions of Rule 59.
(2) If a lese is determined under sub-rule (1), the lessee may be black listed by the District Officer for such period, not exceeding five years as may be considered proper and during the period no mineral concession under these rules shall be granted to him. An entry in this regard shall be made in the remarks column of the registers of mining lease or the auction lease, as the case may be.]
(3) Certified copy of an entry of the registers referred to in sub-rule(1) may be obtained by any person on payment of a fee of-
(a) Rs.100.00 for obtaining the copy within seven days, and
(b) Rs. 200.00 for obtaining the copy within twenty four hours. ”
7. Apart from this, Section 21 of the General Clauses Act, 1897 even impugned order does not fall under this category. State Government was well within its right and its jurisdiction to pass impugned orders dated 16.12.1996 and 20.1.1997, as the grant of lease ex facie was in total violation of law, as admittedly the lease was given to the petitioners in a forest area, which could not have been given in the first place. Moreover, it has already been stated above Section 21 of the General Clauses Act, 1897 grants the powers to State Government to add, amend, vary, rescind, inter alia, passed order under Rule 78 of the Rules. Section 21 of the General Clauses Act, 1987 reads as under :-
“21. Power to issue, to include power to add to amend, vary or rescind notifications, orders, rules or bye-laws.- Where, by any [Central Act] or Regulation, a power to [issue notification,] order, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to , amend, vary or rescind any [notification,], orders rules or bye-laws so [issued].”
8. Undoubtedly the settled interpretation of Section 21 of General Clauses Act in case the order that is to be varied or amended is a quasi judicial order then while passing the said order the parties must be given an opportunity of hearing and be given show cause notice. In the present case, this is not the case that the show cause notice and opportunity of hearing was not given. Indeed, it was given and therefore there has been full compliance of principle of natural justice and fair play. Therefore, this Court is of the opinion that there is no anomaly in the impugned orders. [Moreover, the land in question was undoubtedly on the forest area could not have been given].
9. Another leg of argument of the petitioner is that during the pendency of the present writ petition the petitioners moved an application before the State Government though seeking approval of the Central Government under Section 2 of the Forest (Conservation) Act, 1980. This application of the petitioner was rejected in the year 1998 vide order dated 8.7.1998 which has been subsequently challenged by way of amendment application which has been incorporated. The contention of the petitioner is that the order dated 8.7.198 was passed without application of mind which is purely on administrative order and the reasons needs to be assigned.
10. Learned counsel appearing for the State Government has submitted that the land in question comes under the forest area and cannot be given for mining to private person. Therefore no interference is liable to be made by this Court. The writ petition has no merit and is hereby dismissed.
11. No order as to costs.