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Judgment
Petitioner who was granted a mining lease for extraction of certain minerals in Circle No.112 Village Jamuniya, District Damoh, has filed this writ petition challenging an order dated 22.12.2016 passed by respondent No.3, the Conservator of Forest, prohibiting carrying out mining activities in the forest area exercising his powers under Section 80-A (2) of the Indian Forest Act, 1927.
Facts goes to show that earlier when the Divisional Forest Officer, General Forest Division, Damoh, passed an order on 2.8.2016 initiating similar action, petitioner challenged the same before this Court in W.P. No.14116/2016 and raised two grounds with regard to the challenge. The first ground was that the Divisional Forest Officer has no jurisdiction to deal with the matter and the second was that the impugned order was passed in violation to the principles of natural justice. Finding there to be substantial force in the arguments raised with regard to the violation of principles of natural justice on 27.10.2016, Writ petition No. 14116/2016 was allowed by this Court and the matter was remanded back to the competent authority of the Forest Department to take action afresh in accordance with law. Action having been taken in accordance with law, petitioner is again before this Court, challenging the action initiated.
Shri R. N. Singh, learned Senior Counsel appearing for the petitioner invited our attention to a note/ inspection report prepared by the Divisional Forest Officer, Sub Division Damoh vide Annexure P/2 on 27.5.2015 and the observations made by him in the said report available at page 38 to show that initially in May 2015 the Sub Divisional Forest Officer did not find any illegal mining activity being carried out in the forest area but now after remand by this Court in the earlier writ petition, without conducting any proper inquiry or investigation into the matter and without conducting spot inspection as is required, the impugned action has been taken.
Shri Singh, learned Senior Counsel invites our attention to the communications available on record, particularly, the communication made by the Collector vide Annexure P/21 on 7.12.2016 to say that an ex-parte spot inspection was conducted on 18.11.2016 and the Collector finding that the ex-parte spot inspection was not correct had directed for conducting a spot inspection on 16.12.2016 but without doing so, based on the ex-parte spot inspection conducted on 18/11/2016, the impugned action has been taken and as there is an error apparent on the face of the record in as much as the action taken without conducting any proper inquiry and without spot inspection, the action stands vitiated. Pointing out certain bias of the Divisional Forest Officer in dealing with the matter, learned Senior Counsel argues that even though there is no illegal mining in the area, the impugned action has been taken in a predetermine manner only to harass the petitioner.
Per contra, Shri Amit Seth, learned Government Advocate invites our attention to the spot inspection report of the Joint Forest Division Officer, Damoh dated 21.11.2016 and the fact detailed therein, to say that when spot inspection was conducted on 18.11.2016, the petitioner was present in the spot inspection, after spot inspection he refused to sign on the Panchnama but he refused to sign and therefore, after obtaining the signature of Panch and villagers, the impugned action has been taken.
Be it as it may be, Shri Amit Seth, learned Govt. Advocate points out that the impugned order has been passed by the respondent No.4 exercising his power under Section 80-A of the Indian Forest Act, finding there to be illegal mining operation in the forest area and if any person is aggrieved by such an order, sub section 3 of Section 80-A provides a provision for appeal to the competent authority of the State Government and as disputed question of fact in the matter of conducting spot inspection ex-parte on 18.11.2016 and the fact about there being illegal mining operation in the forest area is concerned, interference into the matter exercising extraordinary jurisdiction in a petition under Article 226 of the Constitution is not called for when statutory remedy of appeal is available to the petitioner and thereafter, further remedy is available under the Forest Act itself for challenging the order of Appellate Authority. Accordingly, Shri Amit Seth submits that it is not a fit case where indulgence into the matter is called for.
Having considered the rival contentions we find much force in the objection raised by Shri Amit Seth with regard to maintainability of this writ petition. The question as to whether the mining activity is being carried in the forest area or within the leased area granted is a question of fact and Panchnama and report available with regard to the joint inspection conducted do prima facie show that the mining activity is being carried out in the forest area. Petitioner''s impugns this spot inspection by contending that he was not heard and the joint inspection was undertaken behind his back, however, the Divisional Forest Officer did record a finding that in his order dated 21.11.2016 petitioner refused to sign in the Panchnama even though he was present at the time of joint inspection. Taking note of all these disputed questions which are nothing but question of fact which can be more appropriately dealt with by the Appellate Authority exercising jurisdiction under sub section (3) of Section 80, We see no reason to make any indulgence into the matter.
Accordingly, granting liberty to the petitioner to take recourse to the statutory remedy of appeal available under the Indian Forest Act as indicated herein above, we dispose of this petition.