Ecolex Logo
The gateway to
environmental law
Search results » Jurisprudence

Kamla Kant Pandey v. Prabhagiya Van Adhikari Obra Van Prabhag Sonebhadra & Others

Country/Territory
India
Type of court
National - higher court
Date
Nov 20, 2004
Source
UNEP, InforMEA
Court name
High Court of Allahabad
Seat of court
Allahabad
Judge
Mishra, R.
Sahi, A.P.
Reference number
AIR 2005 All 136, 2005 (1) AWC 877
Language
English
Subject
Wild species & ecosystems, Mineral resources
Keyword
Ecosystem preservation Recreational forest Mining Protected area Recreational water use
Abstract
The petitioner raised the issue as to whether the State Government was justified in canceling the mining lease of the petitioner and restraining him from transporting minor minerals from the area known as Kaimur Wild Life Sanctuary. This issue involves the powers of State Government in permitting mining operations in areas which have been declared as a Wild Life Sanctuary under the Wild Life (Protection) Act, 1972, an also as the sand stone mining and other activities of excavation are causing threat to the sanctuary. The State Government, by the order impugned in the present writ petition on a report submitted by the Wild Life Department, passed an order to the effect that the mining lease granted to the petitioner violates the provisions of Sections 2 (12) B, 18-A & 29 of the Wild Life (Protection) Act 1972. The impugned orders dated 21.5.2004 and 29.5.2004 are sought to be impeached by the petitioner on the ground that the orders reflect complete non application of mind and are in violation of principles of natural justice as they were passed without making any proper inquiry in the matter. The respondent State contends that the mining operations are clearly prohibited by the Act 1972. Even if they were held to be permissible, it could only have been done with the permission granted under the orders of the authorities under the Act and not by the State Government alone under the Minor Mineral (Concessions) Rules. In essence the grant of mining lease to the petitioner was itself illegal as it violated the provisions of the Act and it has been rightly cancelled. The essence of dispute relates to whether the mining lease of the petitioner is within the sanctuary limits or not. It prima facie appears that the entire area of the 2 villages is not within the sanctuary area. The State Government does not appear to have taken all the existing factors into consideration so as to exactly locate the area of mining operations of the petitioner and fix the identity of the land either within or out side the sanctuary area, thus the decision making process has been concluded without complying the provisions of natural justice and without applying mind in correct perspective and recording adequate and cogent reasons. The contention of the petitioner that the impugned orders are in violation of the principle of natural justice has to be accepted. Permission to carry out mining activities of sand in the area concerned has to be necessarily and compulsorily modulated in accordance with the Wild Life (Protection) Act and for that matter the consultative process as well as the decision making process both have to include the officials. The contract of lease stands temporarily suspended so long as the authorities do not take a decision in the light of the observations made in this judgment keeping in view the provisions of the Act. Section 29 in its amended form, whereby mining of forest produce was prohibited, is a substantive piece of legislation which has been enforced with immediate prohibitory effect, and would apply with full force to the existing lease of the petitioner. Unless and until the State Government defines the limits of the sanctuary as per the notification of 1982 and unless and until findings are recorded in the light of the provisions of the Act, 1972 and the directions contained hereinabove, it would not be appropriate to permit the petitioners to continue their mining operations. The Court refrains from quashing the orders initially challenged in the writ petition by which the petitioners had been restrained from transporting the mining material excavated by them from the forest ranges. The writ petition succeeds partly and the orders passed by the State Government and the District Magistrate respectively are hereby set aside. The State Government shall proceed to investigate and decide the issues raised by the petitioner. Since the notification of 1982 has been issued by the State Government, it is the same which has to ascertain the boundaries of the sanctuary. However, this exercise shall be undertaken in consultation with the Chief Wild Life Warden and the Advisory Board in this regard. The boundaries of a declared sanctuary cannot be altered except with the prior concurrence of the Central Government as is evident from the provisions of Section 35 of the Wild Life (Protection) Act. The State Government and the other authorities shall, within a period of 6 weeks, abide by the boundaries under the notification in view of the provisions of the sub-clause (2) of Section 18 of the Wild Life (Protection) Act, 1972 read with the explanation there under. In case it is found that the plots in question are within the sanctuary limits then the petitioners shall be obliged to seek permits under the Wild Life (Protection) Act from the Chief Wild Life Warden.
Full text
COU-156135.pdf
Website
www.indiankanoon.org