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Judgment
U.C. Maheshwari, J.—Having perused the IA No. 6524/13, an application for early hearing of this petition, I have found that same was filed on 30.4.2013 for consideration of IA No. 6523/13 on some earlier date but thereafter the matter was taken up by the Coordinate Bench on 15.5.2013 and after hearing on IA No. 6523/13 the order has been passed. So this IA No. 6524/13 does not require any further consideration, hence the same is disposed of. Heard on IA No. 14800/11, petitioner''s application for taking annexed circular dated 13.1.2011 on record.
In the available factual matrix such circular appear to be relevant, hence by allowing the IA, the same is taken on record. Besides the aforesaid IA, IA No. 14930/13 and 15043/13 are also pending for consideration.
At the request of the parties, the same are taken for consideration.
Heard on IA No. 15048/11, this is an application on behalf of the petitioner permitting it to produce annexed additional documents dated 7.6.2013 issued by the Forest Department, Jabalpur on record. Such documents appear to be relevant, hence by allowing the IA, the same are taken on record.
Also heard on IA No. 14930/13, petitioner''s application for restraining the respondent nos. 4 and 6 from interfering to comply with the order dated 15.5.2013.
The petitioner has filed this IA contending that at initially stage of this petition, vide interim order dated 10.12.2011, the parties were directed to maintain the status quo with respect of the land in question with further direction that no mining actives be carried out in such land without leave of this court.
Subsequent to it, IA No. 6523/13 on behalf of the petitioner seeking permission remove the overburden of mineral already extracted and laying at the side for which royalty has already been paid was filed.
Initially such application in presence of the counsel of all parties was taken for consideration on 6.5.2013. On such date the counsel present took adjournment to take appropriate instructions and submit the information as to whether overburden and the mineral as indicated in such IA is said to have been extracted during the subsistence of the mining lease from dated 6.3.1987 to 5.3.2007. Besides the aforesaid, a direction was also given to submit the report as to whether such material as is indicated in such IA is available in the lease area and if so whether the petitioner be permitted to remove the same after complying with the statutory requirement. On which the requisite report dated 10.5.2013 was submitted by the respondent no. 3 alongwith IA No. 7113/13, in which elaborate report regarding aforesaid lying overburden, which was extracted between above mentioned period, was stated. Thereafter the matter was taken up on 15.5.2013 for consideration of IA no. 6523/13 and on consideration a bye-parte order was passed and the petitioner was permitted to remove the aforesaid overburden from the mining subject to complying with the mandatory requirements as contemplated under the law. Subsequent to that all necessary formalities to remove such overburden from the site has been fulfilled by the petitioner, on which the transit passes have also been issued. Inspite that the petitioner has been given a notice dated 7.6.2013 by the respondent-Forest Department to Sanjay Pathak, one of the partners of the petitioner firm with a direction to file an application in the format before the competent office and obtain acceptance to comply with the aforesaid earlier order of this court and the petitioner firm has not been permitted by the authorities of respondents to remove such overburden from such site in compliance of order dated 15.5.2013.
The petitioner''s counsel after taking me through the averments of the IA as well as above mentioned averments and the earlier orders stating that in compliance of the earlier orders to remove the alleged overburden from the site the petitioner has completed all the formalities in the department of the respondents-authorities and undisputedly the petitioner-firm is not carrying out any excavation activities to extract mineral from the concerning area. Apart this, it is undisputed that such lying material was excavated during the above mentioned lease period for which specific report has also been placed by the respondent no. 3 on record. So it is apparent that the petitioner-firm is not carrying out any mineral extracting activities in the alleged area. During the aforesaid lease period, the alleged land was not the forest land. In such preemies, he said that aforesaid letter dated 7.6.2013, (Ann. P-1-1), annexed with the IA No. 15048/13 is not having the binding effect against the petitioner because the petitioner is not carrying out any mining extracting activities over such land. The petitioner wants to remove only lying overburden stock from the site for which after completing all the formalities, District Mining Authority has also issued the transit passes to the petitioner. He also said that whatsoever is stated in the aforesaid letter/notice dated 7.6.2013, by the Forest authorities, the same is not applicable in the matter of the petitioner and in such premises, the authorities of the respondents-Forest Department has no authority to create any obstruction in removing aforesaid lying overburden stock by the petitioner in compliance of earlier order of this court and prayed to allow the aforesaid IA.
The petitioner''s counsel also referred some earlier orders and decided cases of this court in support of his arguments.
The aforesaid prayer is opposed by the State''s Counsel saying that although the petitioner has been permitted to remove the aforesaid overburden from the site by this court, vide order, dated 15.5.2013, but by such order, he was permitted to remove such overburden subject to compliance of all mandatory provisions. So in such premises, the permission from the authorities of Forests Department is also necessary and without obtaining the same, such overburden could not be removed from the disputed site. He fairly submitted that subsequent to cut of date the excavation activities were stopped and no mining activities is being carried out by the petitioner. He also said that in view of aforesaid order dated 15.5.2013, in the available scenario, the impugned application is not entertainable if the authorities of any of the respondents are creating any obstruction in compliance of such order, then the petitioner is at liberty to file contempt petition, but no direction could be given in the present matter and prayed for dismissal of the IA.
Having heard the counsel at length, keeping in view their arguments, I have carefully gone through the averments of all aforesaid IAs as well as aforesaid interim orders dated 10.12.2011, 6.5.2013 and 15.5.2013. Before proceeding further, I would like to reproduce the concerning extract of the earlier orders as ready reference. The same are as under:-
(a) Vide order dated 10.12.2011 the following direction was given:-
Till next date of hearing status quo as it exists today in respect of the land in question shall be maintained by the parties. It is further directed that no mining activities be carried out in the said land without leave of this Court.
(b) Subsequent to it, vide order dated 6.5.2013 the following direction was given:-
A report be submitted as to whether such material as is indicated in Annexure 1.A/3 is available in the lease area and if so whether the petitioner be permitted to remove the same after complying with the statutory requirement.
(c) After receiving the aforesaid directed report, on consideration of IA No. 6523/13, vide order dated 15.5.2011, the following order permitting the petitioner to remove the aforesaid overburden was passed:-
In pursuance to the directions issued on the last date, the competent authority has submitted a report which goes to show that 9 lacs metric ton of iron ore and 2.25.000 metric ton are available in the site during the subsistence of the lease in question. That being so, petitioner be permitted to remove the aforesaid material from mining subject however to petitioner complying with mandatory requirements as contemplated under the law.
It is noted that alongwith the aforesaid IA No. 6523/13 some earlier orders of Division Bench as well as Single Bench of this court are also placed on record. The operative part of the same are as under:-
(a) In the matter of M/s. Pacific Exports Vs. State of M.P. and others vide order dated 17.5.2012 in W.P. No. 18922/2011 considering the question to give appropriate direction to remove lying overburden from the mining site, the Division Bench of this Court has passed the following direction:-
In view of the totality of the facts and circumstances of the controversy, we direct that the authorities shall allow the petitioner to remove the overburden from the spot on payment of royalty etc. if already not paid, by issuing necessary transit pass etc. The concerning authorities may also find out whether the minerals were excavated prior to the issuance of Annexure P-9, P-10 and P-11. They shall also further allow the petitioner to transport the minerals, as per sanction, agreement and the existing permission, on payment of royalty etc. as per rules. Needless to mention that all concerned will maintain an account of the minerals so removed from the spot in pursuance of this order.
(b) The aforesaid order of Division Bench was passed on the basis of earlier decision of the Division Bench of this Court dated 14.8.2008 passed in W.P. No. 1574/2008 in which it was held as under:-
We direct that the concerned authorities will find out whether the materials have been excavated by M/s. S.R. Ferro Alloys Limited before 2.7.2008 and if the same have been excavated prior to 2.7.2008, the authorities will allow the aforesaid lessee to transport the materials. Similarly, in all other cases, where the lessees have excavated the materials prior to 2.7.2008, they will be allowed by the concerned authorities to transport the materials excavated prior to 2.7.2008.
(c) Subsequent to aforesaid orders, such question was again considered by the Division Bench of this Court in the matter of M/s. Anand Mining Corporation Vs. State of M.P. and others in W.P. No. 679/2013, vide order dated 18.3.2013 in which following order was passed:-
Taking note of the totality of the circumstances and the orders already passed by a Division Bench of this court under similar circumstances, we direct the respondents to allow the petitioner to remove the overburden already available in the area subject to payment of royalty and clearance of all other dues and on compliance with statutory provisions as per requirement under law. As this is only relief claim in this writ petition, the petition stands allowed and disposed of.
(d) On arising the occasion relying on aforesaid earlier Division Bench orders, this Bench has also passed the order in W.P. No. 14755/12(O), vide dated 25.9.2012 in which it was held as under:-
As the extraction of minerals by the petitioner from the alleged mines has already been directed to be stopped by the impugned order, hence no useful purpose would be served to keep the overburden and extracted minerals dumped on spot for the indefinite period. So, in the totality of the facts and circumstances of matter, I direct the respondents'' authorities to allow the petitioner to remove the overburden material from the spot on payment of royalty etc. if already not paid, by issuing necessary transit pass and other required documents. The concerned authorities may also find out whether the minerals were excavated prior to the issuance of Annexure P-9. They shall also further allow the petitioner to transport such extracted minerals, as per sanction, agreement and the existing permission, on payment of royalty etc. as per rules. Authorities of all concerned shall maintain an account of the minerals so removed from the spot in pursuance of this order.
In view of aforesaid earlier orders of this court in the available factual matrix of the matter as stated above, on examining the case at hand, it is undisputed position that mining activities in the area has already been stopped by the petitioner and on calling the report in compliance of order dated 6.5.2013 from the authorities of respondents, then the report dated 10.5.2013 alongwith some papers were placed on record. In such report the elaborate discussion and quantity of the overburden of the excavated mineral during the lease period lying at the site with specific averments that no mining activities is being carried out by the petitioner on the aforesaid land is given. After placing such report, vide aforesaid order dated 15.5.2013, the petitioner has been permitted by this court to lift overburden minerals lying at the site.
Having perused the aforesaid papers and letter of the Forest Department, in the light of the aforesaid cited earlier orders of this court and order passed on 15.5.2013 in the present petition to make ascertained that the orders of this court should be complied with by all the authorities of the respondents according to its spirits, I am of the view that some direction to the authorities of respondents is required.
True it is that creating any obstruction by any party or authority in compliance of the court''s order gives a cause of action to affected party to file the contempt petition and as per arguments of the State''s Counsel if the aforesaid letter issued to the petitioner by the Forest Authorities contrary to earlier direction of this court, then the petitioner may file the contempt petition or to challenge such letter of the Forest Department separately in accordance with the procedures. Such argument could not be accepted in its totality because in pending matter, besides the right to file the contempt proceeding, the party like the petitioner on arising the occasion has a right to file the application for appropriate direction to restrain the other party from creating any obstruction in complying the earlier order and in such premises, the court is bound to consider the impugned application and pass appropriate order. The forum of contempt petition could not be treated to be alternate forum for issuing ad interim relief as prayed in the impugned application.
In view of aforesaid discussion, so also to ascertain, keeping in view the submission of the petitioner''s counsel that all formalities to remove the alleged overburden minerals have been completed by the petitioner''s, on which the transit passes have also been issued by the District Mining Authorities and no excavation mining activity is being carried out on the disputed side by the petitioner and the circumstance that no specific ground or the provision to restrain the petitioner from removing the aforesaid overburden from the site has been stated in the aforesaid letter/order dated 7.6.2013 by the Forests Department in the available factual matrix to ascertain the compliance of earlier order dated 15.5.2013 according to its direction and spirit, the respondents-authorities are directed to permit the petitioner to remove the overburden from such area. Accordingly till this extent the IA No. 14930/13 is allowed.
Now this matter be placed for admission and consideration of interim relief in the last week of November 2013, as prayed by the parties. Cc as per rules.