Madhya Pradesh High Court
Smt. Rampyaribai vs The State Of Madhya Pradesh on 15 February, 2022
Author: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 15th OF FEBRUARY 2022
WRIT PETITION No. 10370 of 2019
Between:-
SMT. RAMPYARIBAI W/O MANSINGH,
AGED ABOUT 35 YEARS, OCCUPATION:
HOUSEHOLD VILLAGE-SHANKARGARH-
BALGARH, TEHSIL AND DISTT.-DEWAS
(MADHYA PRADESH)
.....PETITIONERS
BY SHRI ATUL KUMAR GUPTA, LEARNED COUNSEL.
AND
THE STATE OF MADHYA PRADESH
1.
COLLECTOR DEWAS (MADHYA PRADESH)
PRINCIPAL SECRETARY THE STATE OF
MADHYA PRADESH MINISTRY OF
2.
ENVIRONMENT AND FOREST, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
PRINCIPAL SECRETARY THE STATE OF
MADHYA PRADESH MINERAL RESOURCES
3.
DEPARTMENT, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
DIRECTOR DIRECTORATE OF GEOLOGY
AND MINING 29-A, KHANIJ BHAWAN,
4.
ARERA HILLS, BHOPAL (MADHYA
PRADESH)
CHIEF CONSERVATOR OF FOREST
5. REGIONAL FOREST AREA, DEWAS
(MADHYA PRADESH)
MR. HUKUMSINGH GUJELE (YADAV) S/O
6. SHRI JAGANNATH SINGH GUJELE 62, VIJAY
NAGAR, DEWAS (MADHYA PRADESH)
MR. MANISH YADAV S/O HUKUMSINGH
7. YADAV 62, VIJAY NAGAR, DEWAS
(MADHYA PRADESH)
.....RESPONDENTS
RESPONDENT NO. 1 TO 5 BY SHRI PUSHYAMITRA BHARGAV, LEARNED
ADDL. A.G.
RESPONDENT NO.6 AND 7 BY DR. MANOHAR LAL DALAL.
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WRIT PETITION No. 11575 of 2021
Between:-
MOHAMMAD TANVEER S/O SHRI ABDUL
GANI, AGED ABOUT 41 YEARS,
OCCUPATION: BUSINESS 109, SAI PLAZA,
BAHADUR SHAH MARG (MADHYA
PRADESH)
.....PETITIONER
BY DR. MANOHAR LAL DALAL, LEARNED COUNSEL.
AND
THE STATE OF MADHYA PRADESH THR.
1 PRINCIPAL SECRETARY 29A, KHANIJ
. BHAWAN, ARERA HILLS, BHOPAL
(MADHYA PRADESH)
DIRECTOR DEPARTMENT OF MINES AND
2
MINERALS KHANIJ BHAWAN 29A ARERA
.
HILLS BHOPAL (MADHYA PRADESH)
COLLECTOR / DISTRICT MAGISTRATE
3
COLLECTORATE DIST DEWAS (MADHYA
.
PRADESH)
4 FOREST CONSERVATOR DEWAS (MADHYA
. PRADESH)
5 DISTRICT FOREST OFFICER DEWAS
. (MADHYA PRADESH)
6 MINING OFFICER DEWAS (MADHYA
. PRADESH)
.....RESPONDENTS
BY SHRI PUSHYAMITRA BHARGAV, LEARNED ADDL. A.G.
ORDER
Writ Petition No.10370/2019
The petitioner has filed the present petition being aggrieved by
the order dated 05.02.2019 passed by respondent No.5 whereby
application for grant of mining lease and permission to establish stone
crushing has been granted to respondent No.6 and 7 in a
discriminatory manner whereby in similar facts and circumstances the
petitioner has been denied.
According to the petitioner, she is Lease Holder of the land
comprised in Patwari Halka No.68, bearing survey No.841
admeasuring 2.00 hectares situated at Village Rajoda Tehsil & District
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Dewas. The Petitioner sought permission to establish the stone
crushing machine on the said land. An issue related to the environment
due to the grant of mining permission for stone crusher machines in
the area of Shankargarh came up before the National Green Tribunal
vide Original Application No.140/2013 (CZ). The Tribunal vide
judgment dated 15.12.2016, has banned all the crushing activities
within the periphery of the 250 meters of forest area and also imposed
a fine of Rs. 5,00,000/- upon stone crusher owner/operator for
operation of mining activities in the forest area. Based on the aforesaid
order, on an objection taken by the Forest Department, the petitioner
has been denied for the mining lease as the petitioner's above land is
situated within the 250 meters nearest of forest land, although the
petitioner is denying the aforesaid fact. According to the petitioner, the
respondent No.6 and 7 had also applied for renewal of Patta for mining
purposes and establishment of a stone crusher machine to produce the
gritstone (Gitti) in the land comprised of Patwari Halka No.68, bearing
Survey No.841 situated at Village Rajoda Tehsil & District Dewas and
vide order dated 24.06.2014, the permission was granted to them.
Thereafter, they have also been permitted to undertake stone quarry
mining operations. According to the petitioner, the discrimination is
there because their land is also coming within the periphery of 180
mts. and 176 mts. respectively. Hence, present petition before this
Court.
The respondents have filed the return admitting the contention
of the petitioner by submitting that the Collector (Mining) Dewas vide
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letter dated 06.08.2019 constituted a committee in the Chairmanship of
Divisional Forest Officer Dewas to enquire into the matter. The said
committee submitted a report recommending for cancellation of the
mining lease of respondents No.6 and 7. After receiving the aforesaid
report, the Collector vide letter dated 13.08.2019 has recommended for
cancellation of the lease.
Respondent No.6 and 7 have also filed the return by raising a
preliminary objection that the petitioner is having alternate remedy
under Rule 57 of M.P. Minor Mineral Rules, 1996 by way of appeal,
review and revision. It is further submitted that after following due
procedure, the mining lease has been granted to them. Their mining
land is situated 650 meters away from the forest area; hence, the
petitioner is liable to be dismissed.
Learned counsel for the petitioner submits that despite the letter
sent by Collector recommending cancellation of the lease in the year
2019, till today nothing has been done and respondents No.6 and 7
stilling operating the mining within the forest areas. The petitioner is
claiming parity with the respondent No.6 and 7 hence she is entitled to
similar permission from the competent authority.
We have heard the learned counsel for the parties and perused
the record.
Petitioner has approached by way of this petition claiming
negative parity. According to the petitioner, respondents No.6 and 7
have illegally been granted mining leases and permission to carry out
the crushing activities by stone crushers despite their land being
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situated within the periphery of 250 meters of forest area, hence she is
also entitled to the same relief.
It is settled law that no writ can be claimed based on negative
parity. The Collector vide letter dated 13.08.2019 has only directed
respondent no. 3 to obtained cancellation of NOC from Divisional
Forest Officer, Dewas but no decision has been taken so far. The
petitioner after disposal of her application did not prefer any appeal to
the Director and directly approached before this Court claiming the
negative parity. The petitioner has also not challenged the lease
granted to the respondent No.6 and 7 by way of appeal under Rule 57
of M.P. Minor Mineral Rules, 1996. These are disputed questions of
facts whether the land of the petitioner and respondents No.6 and 7 are
within the periphery of 250 meters of forest area and they can be
granted or denied permission for mining activities by installing the
stone crusher after the judgment dated 15.12.2016 passed by Tribunal.
Both the parties are claiming that their land is not within the periphery
of 250 of forest area.
Facts of the Writ Petition No.11575/2021
The petitioner has filed the present petition against the order
dated 20.04.2021 passed by respondent No.1 whereby appeal preferred
under Rule 57 of M.P. Minor Mineral Rules, 1996 has been dismissed
as the land of the petitioner situated at village Palangar comes within
the forest area. The petitioner has also filed this petition alleging the
discriminatory attitude of the respondents whereby in similar facts and
circumstances mining lease has been granted to other landowners
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whose land are situated within the periphery of 250 of forest area.
Petitioner has also challenged the restoration plan prepared by
respondent No.4 pertaining to the inclusion of Village Palangar after
the judgment dated15.12.2016 passed by National Green Tribunal
Bhopal in O.A. No.140/2013 (CZ).
Learned counsel for the petitioner submits that appeal of the
petitioner has been dismissed due to the pendency of Writ Petition
No.10370/2019 before this Court and direction has been given to
Director Mining as well Collector to act as per decision in Writ
Petition No.10370/2019. Now the said writ petition is being disposed
of vide this order with the direction as stated above. Since the appeal
of the petitioner has been dismissed apart from other grounds that the
Writ Petition No.10370/2019 is pending before this Court. Now, this
writ petition is disposed of, by remanding back to Government/
Appellate Authority to decide the appeal of the petitioner afresh.
In view of the above, we pass the following order in both the
writ petitions:-
(I). Writ Petitions no. 10370 of 2019 is disposed of with a
direction to the competent authority to take final decision within 15
days from today on the basis of letter dated 13.08.2019 after giving an
opportunity of petitioner and respondents no. 6 and 7.
(II). Thereafter any aggrieved party may prefer the appeal
before the State Government and State Government is directed to
decide the appeal on merit if filled.
(III) Writ Petition No. 11575 of 2021 is also disposed of by
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remanding to the appellate authority to decide the appeal of the
petitioner afresh on merit.
Since the issue involved on both writ petitions is the same hence
the appellate authority is directed to decide both the appeal ( if filed by
any of the parties of writ petition no 10370 /2019) together).
Certified copy as per Rules.
( VIVEK RUSIA ) ( RAJENDRA KUMAR (VERMA )
JUDGE JUDGE
praveen/-
Digitally signed by
PRAVEEN NAYAK
Date: 2022.02.21 19:16:34
+05'30'
