Uttarakhand High Court
Dilbagh Singh And Another ........... ... vs State Of Uttarakhand And Others on 29 October, 2018
Author: Lok Pal Singh
Bench: Rajiv Sharma, Lok Pal Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No.179 of 2015
Dilbagh Singh and another ........... Petitioners.
Versus
State of Uttarakhand and Others .........Respondents.
Mr. Amar Shukla, Advocate for the petitioners.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand/
respondent No.1 & 3.
Mr. Rajeev Bisht, Advocate for respondent nos.2 & 4.
Mr. S.R.S. Gill, Advocate for respondent no.5.
Coram: - Hon'ble Rajiv Sharma, A.C.J
Hon'ble Lok Pal Singh, J.
[Per: Lok Pal Singh, J.] Petitioners have filed the present Writ Petition (PIL) to stop the illegal mining being carried out by the Respondent Nos. 4 to 6 over the land situated at Village Bailparao Pattpani, Semalchaur, Tehsil Kaladhungi, District Nainital.
2. By means of present Writ Petition (PIL) the petitioners have brought into the notice of this Court that they are public spirited persons and have no personal interest of the subject matter. The Writ Petition (PIL) has been filed by them to protect the environment from illegal mining and its adverse affect on ground water level in the area.
3. Brief facts leading to the present WPPIL are that the petitioners are agriculturists by occupation and permanent residents of Village Bailparao Pattpani, 2 Semalchaur, Tehsil Kaladhungi, District Nainital. Being the public spirited persons they are raising the issue before this Court that agricultural fields, rivers, ground water level are being affected by illegal mining at the hands of respondent Nos. 4 to 6. It is contended that the respondent Nos. 4 to 6 obtained permission from the Respondent Nos. 1 to 3 to construct a lake / pond / rain water harvesting tank over the land actually belonging to respondent No.4. It is further contended that the State Authorities without verifying the correct facts permitted respondent Nos. 4 to 6 for digging of mining in the guise of constructing the lake / pond / rain water harvesting tank for the purpose of agricultural activities. It is further pleaded that the respondents are hand in glove and just to circumvent the provisions contained in Mines and Minerals (Development and Regulation) Act, 1957 got permission for constructing the lake / pond / rain water harvesting tank, whereas they are actually doing the mining activities in the guise of construction of lake/ pond / rain water harvesting tank for irrigation of their fields.
4. On the perusal of the sanction granted in favour of respondent Nos. 4 to 6 on the land measuring more than 20 acres, the respondent Nos. 4 to 6 have dig the land up to the depth more than 35 feet and have lifted the minerals and sub-soil without there being any royalty to the State Government. It is further pleaded that permission granted by respondent Nos. 1 to 3 to respondent Nos. 4 to 6 in the guise of constructing a lake / pond / rain water harvesting tank for collecting the water / rain water for irrigation purposes over the agricultural land is mere camouflage and, in fact, they carried out the mining activities over the agricultural 3 land and have converted a good quality agricultural land into a waste land by digging the land up to the depth of more than 35 feet. Photographs of the site have been annexed with the WPPIL, which depict that the respondents are doing the mining using pokland machines, JCB machines and are removing the minerals from the spot / site by trucks.
5. A perusal of papers available on record and photographs annexed with the WPPIL would further reveal that it is in fact mining activities and has no connection with construction of a lake / pond / rain water harvesting tank. Respondent No.3 has filed its affidavit stating therein that the application was moved by the respondent No.4 that mining activities are to be carried out by respondent No.4 over the land bearing Khasra No. 228 and 229, admeasuring 2.368 hectare, in order to construct an artificial lake / pond. The permission was valid only for a period of six months by permission order dated 08.07.2015. It is further pleaded that the valid permission was granted in favour of respondent No.4 along with the respondent Nos. 5 and 6 and that the WPPIL is misconceived. In the counter affidavit so many permissions have been referred granted in favour of the different persons. On a perusal of the permissions granted by the respondent No.3 it would reveal that the permissions are being granted only for the construction of rain water harvesting tank and to store the water / rain water in the tank. Respondent Nos.1, 2 & 3 have tried to justify the permission granted to respondent No.4 to 6 on the land belonging to respondent No.4. The respondent No.4 has filed its counter affidavit stating therein that the permission granted to him on 08.07.2015 to 4 construct a rain water harvesting tank on a total area of 2.638 hectare. The respondent No.4 is the owner of the land measuring 2.638 hectare and the permission as such has been granted to him for the entire land. The purpose of granting permission for construction of rain water harvesting tank is to collect the rain water and the same shall be used for agricultural purposes, but as on the entire land of respondent No.4 the permission was granted to construct a rain water harvesting tank, thus, it seems to us that the permission in fact was for the mining purpose and not for really construction of rain water harvesting tank. No prudent person can believe that an agriculturalist will construct a rain water harvesting tank on his entire agricultural land for the purpose of irrigation. If the pond / lake / rain water harvesting tank is constructed over the entire land, which land is to be irrigated, but while granting the permission to respondent Nos.4 to 6, this aspect was not considered by the respondent Nos. 1 to 3 which seems to be dereliction of duties on the part of Respondent Nos. 1 to 3.
6. Thus, we are of the considered opinion that the permission dated 08.07.2015, granted to respondent No.4 for construction of pond / lake / rain water harvesting tank is mere an eyewash and just to legalize the illegal act, just to permit the mining in the guise of construction of lake / pond / rain water harvesting tank. Rain water harvesting tank had to be constructed by the respondent No.4 to 6 over the land as they claimed that they have obtained the permission on the pretext that they may be permitted to lift the sub-soil over the land Khasra Nos. 228 & 229, admeasuring area of 2.368, belonging to respondent 5 No.4. The respondent Nos.1 to 3 while granting the permission shut their eyes and failed to see the real object of respondent Nos.4 to 6. This Court has no hesitation in observing that the permission granted to respondent No.4 must not have been granted without the connivance and ulterior motive of respondent Nos. 1 to 3.
7. The respondent No.2 filed another counter affidavit and pleaded that the respondent No.3 has granted the permission to respondent Nos.4 to 6, and has no concerned at all in granting such permission. It is further contended that constructing a pond / lake / rain water harvesting tank over the private land do not come within the administrative jurisdiction of the Forest Department and respondent No.2 has no knowledge regarding the mining activities going on in the guise of construction of lake / pond / rain water harvesting tank.
8. The WPPIL was entertained by this Court on 16.10.2015. The Standing Counsel was permitted to seek instructions in the matter. Thereafter, the respondents were granted time to file their counter affidavits. Counter affidavit was filed by respondent No.2 on 01.12.2015, but before filing the counter affidavit, the respondent No.2 did not make efforts to find out the real fact as to whether pursuant to the permission dated 08.07.2015, any rain water harvesting tank has been constructed or not?
9. On query of this Court learned Standing Counsel would submit that, in fact, rain water harvesting tank has not been constructed yet. It seems 6 to us that the respondent Nos.1 and 2 also failed to discharge their duties rather there is a dereliction of duties on the part of respondent No.1. Despite of time granted to respondent No.1, he has failed to file his counter affidavit, thus, it can safely be presumed that despite the time granted to respondent No.1, he did not care to contest the WPPIL. Therefore, we have no hesitation in observing that the respondent Nos. 1 & 2 were also hand in glove with the petitioners. We cannot ignore the real fact that the agricultural land is receding day by day due to increase of population, construction of new houses, construction of new roads and other civil amenities, which is beyond the control of State, but respondent Nos.1 to 3 failed to take note of the fact that these types of tactics are being adopted in State of Uttarakhand to destroy the agricultural land for ulterior motive in adjoining area of tributaries of the rivers for monetary gains by enjoining in illegal mining. Now-a- days mining has become a most profitable business which is now known as black gold (Kala Sona).
10. Having considered the pleadings taken in the WPPIL and after going through the counter affidavits of respondent Nos. 2 & 3, we are of the considered view that the permission granted to respondent Nos. 4 to 6 is a camouflage, in such a situation, this Court is constrained to issue the following directions:-
(i) The Chief Secretary, Government of Uttarakhand is directed to constitute a high level Committee to find the involvement of erring officers / officials in granting the permission to respondent Nos.4 to 6 in the guise of construction of lake / pond / rain water harvesting tank awarded vide permission 7 order dated 08.07.2015 and to ascertain the loss caused to the exchequer.
(ii) The Committee so constituted shall submit a report to the Chief Secretary, as to whether a lake / pond / rain water harvesting tank is constructed over the said agricultural land to collect the rain water or not? If, in any case, the Committee so constituted reaches to the conclusion that lake / pond / rain water harvesting tank for which the permission was sought by the Respondent No.4 to 6 is not there, First Information Report be lodged under relevant provisions of law against the erring officers / officials for obtaining the permission dated 08.07.2015 on misleading facts and by committing fraud.
(iii) It is further directed that the Chief Secretary shall ensure that if lake / pond / rain water harvesting tank is not constructed on the land bearing Khasra Nos. 228 & 229 dug by respondent Nos.4 to 6, the position of land be restored to its original state at the cost of respondent Nos. 4 to 6.
(iv) The Chief Secretary, Govt. of Uttarakhand shall also ensure as to how many permission were granted in the same disguise of construction of lake / pond / rain water harvesting tank over agricultural land to different persons during last 10 years and shall take action against those persons who got benefited with the same.
11. Action Taken Report be submitted before this Court within a period of eight weeks. After receiving such report, the Registrar General of this Court shall satisfy himself regarding compliance of the directions issue by the court and therefore place the report before 8 this Court for appraisal. It is further directed that no such permission be granted in future, without verifying the factual aspects at ground level, in order to stop such fictitious mode of illegal mining on private agricultural lands.
12. With the directions as above, the writ petition (PIL) stands disposed of.
(Lok Pal Singh, J.) (Rajiv Sharma, A.C.J.) 29.10.2018 Sanjay