BEFORE THE NATIONAL GREEN TRIBUNAL CENTRAL ZONAL BENCH BHOPAL. Original Application No. 16/2014 (CZ) (THC)

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1 CORAM: BEFORE THE NATIONAL GREEN TRIBUNAL CENTRAL ZONAL BENCH BHOPAL (CZ) (THC) Hon ble Mr. Justice Dalip Singh (Judicial Member) Hon ble Mr. P.S. Rao (Expert Member) BETWEEN : - 1. Ram Singh S/o Shri Umda Ram, Village Jatwas, Post Office Hasampur, Tehsil Neem-ka-Thana, District Sikar, 2. Chhittar Mal S/o Shri Mangu Ram, Village Jatwas, Post Office Hasampur, Tehsil Neem-ka-Thana, District Sikar, 3. Ram Niwas S/o Harphool Chaudhary, Village Jatwas, Post Office Hasampur, Tehsil Neem-ka-Thana, District Sikar, 4. Lekh Ram S/o Shri Bansi Ram Village Jatwas, Post Office Hasampur, Tehsil Neem-ka-Thana, District Sikar, Versus 1. Union of India through the Secretary, Ministry of Environment & Forest, Central Secretariat, New Delhi... Applicants 2. State of Rajasthan through the Secretary, Department of Mines, Government of Rajasthan, Rajasthan Secretariat, Jaipur 3. The Secretary, Environment & Forest Deptt, Rajasthan Secretariat, Jaipur, 4. The District Collector, Sikar, 1

2 5. The Chief Conservator of Forest, Forest Department, Jhalana Doongri, Jaipur. 6. The Chairman, Rajasthan State Pollution Control Board, Jhalana Doongri, Jaipur. 7. Shri Subhash Pradhan S/o Sh. Kedar Nath Sharma, R/o Hasampur, Tehsil Neem-ka-Thana, Sikar, 8. Smt. Anuradha Sharma w/o Shri Subhash Sharma, R/o Village Hasampur, Tehsil Neem-ka-Thana, District Sikar,.. Respondents Counsel for Applicant : Counsel for Respondent No. 1 : Counsel for Respondent No. 4 : Mr. Subhashree, Advocate Ms. Anjum Feroz, Advocate for Mr. Deepesh Joshi, Advocate Mr. R.K. Shrivastav, Advocate Mr. A. P. Khara, AAO Dated : May 20 th, 2014 Delivered in Open Court by Hon ble Mr. Justice Dalip Singh, Judicial Member 1. The case in hand being O.A. No. 16/2014, was originally filed as a Public Interest Litigation/Writ Petition bearing No. 7988/2005 before the Hon ble High Court of Rajasthan at Jaipur Bench by the four Applicants with the prayer that the record pertaining to allotment and grant of mining leases to Respondent Nos. 7 & 8 in Khasra Nos. 155, 157 and 207/1 situated at village Hasampur, Tehsil Neem-Ka-Thana, District Sikar, Rajasthan be re-examined on the ground that the land in the aforesaid Khasra Nos. comprises pasture land and is a part of the Aravali Range and therefore the mining leases granted to them be revoked. 2. The Hon ble High Court vide its order dated 29 th September, 2005 directed notices to be issued to the Respondent and after service the Respondents 2

3 submitted their reply more particularly the Respondent Nos. 2 to 5 and the Respondent No. 6/SPCB filed separate replies. The Respondent Nos. 7 & 8 also submitted their replies to the petition. While the petition was pending before the Hon ble High Court, the Hon ble High Court vide its order dated 21 st October, 2013 directed transfer of the petition to the NGT, Central Zone Bench, Bhopal. After receipt of the case file from the Hon ble High Court, notices were issued to the parties vide order dated 7 th April, The parties put in their appearance before this Tribunal on 11 th March, After hearing the parties, the Tribunal thought it proper to direct the Respondent No. 6 and the Respondent Nos. 2 to 5 to submit the present position as the replies had been filed much earlier before the Hon ble High Court in the year 2006 and to indicate as to what is the present position with regard to the mines and the mining operations and compliance of the conditions of the Consent to Operate etc. 3. In pursuance of our order, learned counsel for the State Pollution Control Board submitted an affidavit on 31 st March, 2014 and brought out the following facts with regard to the three mining leases i.e. ML Nos. 200/2004, 201/2004 and 250/2004. It was submitted that the inspection of the aforesaid mines was carried out and after noting down the observations with regard to the compliance of the condition of the Consent to Operate and the mining leases as well as the observance of the provisions of the Air (Prevention & Control of Pollution) Act, 1981, the officials of the State Pollution Control Board had issued show-cause notices to the lessee of ML No. 200/2004 with a copy of the inspection report dated 19 th March, Likewise, in the case of ML No. 201/2004 the inspection was carried out and it was found that the Consent to Operate was valid upto 31 st March, 2014 though the mining lease was valid upto 12 th January, Since the 3

4 conditions of the Consent to Operate were not being observed, a showcause notice has been issued to the lessee of ML 201/2004. Copies of the inspection report dated 19 th March, 2014 as well as the show-cause notice were filed along with the said affidavit. In the case of ML No. 250/2004 inspection was carried out on 19 th March, 2014 and the Consent to Operate was found to be valid upto 30 th April, 2015 but several instances of noncompliance of the consent were found to be not being observed and accordingly a show-cause notice was issued on 25 th March, 2014 for revocation of the Consent to Operate under the provisions of Section 31(A) of the Air Act, The matter was heard on 22 nd April, 2014 after the notice period expired on 10 th April, 2014 and it was directed that in case the deficiencies as pointed out in the show cause notice have not been removed, the mining activities of all the three mining leases shall not be permitted. 5. Today, during the course of hearing, learned counsel for the State Pollution Control Board Shri Sandeep Singh submitted that on account of noncompliance and non-fulfilment of the conditions of the Consent to Operate so far as all the aforesaid three mines are concerned, the said mines have been ordered to be closed by the State Pollution Control Board authorities till such time the conditions of the Consent to Operate are fully complied with fully as directed by this Court on 22 nd April, We may point out here that the original lessee of ML No. 200/2004 and ML No. 201/2004 Subhash Pradhan Respondent No. 7 herein, has transferred his ML No. 200/2004 to one, Shri Bhoop Singh Gurjar and ML No. 201/2004 to one, Shri Rajesh Kumar. Shri Bhoop Singh is in possession of mining lease since Likewise, Respondent No.8/Anuradha Sharma has transferred the ML No. 250/2004 to one, Shri Balwan Singh. As far as mining lease 4

5 No. 201/2004, presently in possession of the transferee, Shri Rajesh Kumar, has since been revoked on account of non-observance of the conditions of the Consent to Operate by the State Pollution Control Board as the conditions of the consent have not been fulfilled by both these lease-holders. Shri Bhoop Singh who is in possession on ML No. 200/2004 after its transfer, has sought fresh renewal of his consent though as per the learned counsel for the SPCB his Consent to Operate also stands revoked as he failed to comply with the shortcomings as pointed out and the SPCB has already expressed its intention of denial to renew the Consent to Operate on account of the aforesaid reasons. Thus, so far as all the three mining leases for which the complaint was raised in the present petition by the Applicant, the present status remains that all of them have been closed on account of non-observance of the conditions of the Consent to Operate granted by the State Pollution Control Board. 7. In the petition the Applicant has firstly raised the issue that all the aforesaid three mines granted in Khasra Nos. 155, 157 and 207/1, village Hasampur, Tehsil Neem-Ka-Thana, District Sikar, Rajasthan, are located in Charagah land (Pasture land) and therefore the contention of the learned counsel for the Applicant is that without the consent of the Gram Sabha the same could not have been allotted for the aforesaid purpose. He has also relied upon the decision of the Hon ble Supreme Court in the case of Jagpal Singh & Ors Vs. State of Punjab & Ors in Civil Writ Petition No. 1131/2011 dated 28 th January, 2011 wherein the Hon ble Supreme Court in Para No. 15 held as follows : - In many states Government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should ignored. 5

6 8. Learned counsel further submitted that as far as the allotment made to the lessees of the mines of Respondent Nos. 7 & 8 is concerned, the same should be revoked as the Hon ble Supreme Court has laid-down an absolute bar and embargo on the allotment of Gram Sabha land to the private enterprises for commercial purpose. However, learned counsel for the Applicant conceded the fact that in accordance with the rules prevailing in the State of Rajasthan, more particularly the allotment rules of 1992 which were in force at the time when the allotment of the mining lease was made and the order for conversion of the Charagah land was passed by the District Collector in the year 2004, the procedure as provided under the rules had been observed in as much as the consent of the Gram Sabha had been obtained prior to the NOC granted by the District Collector on 9 th November, 2004 and the lease was granted accordingly by the Mining Department to the Respondent Nos. 7 and 8 on 11 th November, However, learned counsel for the Applicant pointed out that the Gram Sabha which met on 21 st February, 2005 took a decision to revoke the consent it had granted earlier in the year 2004 and therefore the mining leases granted to the Respondent Nos. 7 and 8 deserve to be quashed in the light of the judgment of the Hon ble Supreme Court. 9. As far as the aforesaid submission is concerned so far as the above factual position with regard to the mining leases allowed to be granted by the Gram Sabha and in pursuance thereof no objection given by the District Collector, the granting of mining leases on 11 th November, 2004 i.e. prior to the revocation of the decision of the Gram Sabha in February, 2005 is not in dispute. In the light of these facts, we may observe that it is not the case of the Applicant that the procedure as provided under the law was not followed. Under the Rajasthan land revenue laws the competent authority for setting 6

7 apart land for public utility is the District Collector and the District Collector is also empowered under the Rules of 1992 framed in this behalf for making the allotment subject to the allotment which are provided under the rules and that the mining area allotted is only one hectare each to the three lessees i.e. in ML Nos. 200/2004, 201/2004 and 250/2004. As such the aforesaid condition has been fully complied with. 10. The other provisions with regard to obtaining the consent of the Gram Sabha etc. has also been taken care of and it is only after the issuance of the NOC by the District Collector on 9 th November, 2004 that the mining leases were granted on 11 th November, The question with regard to the subsequent revocation cannot be taken into account as it is not the case that the earlier Gram Sabha tainted with fraud or misrepresentation. 11. Be that as it may. The mining lease holders having been granted the lease after following the procedure were under a valuable right accrued to them for proceeding with the mining operations in accordance with law. Therefore, so long as the operations are carried out in accordance with law by observing the terms & conditions of the mining lease and terms & conditions of the Consent to Operate under the Air Act, 1981 they were entitled to operate the same. So soon as the non-observance of the conditions were noticed and the SPCB having given show-cause notice under Section 31(A), of the Air Act, 1981, in our opinion the SPCB has rightly therefore enforced the closure of the mines against all the three lease holders. We therefore find no merit in the contention of the Applicant so far as it relates to the revocation of consent granted by the Gram Sabha in their resolution. 12. The other contention which has been raised in the petition pertains to the mining leases having been granted in the catchment area obstructing the 7

8 flow of the rain water into the village pond. So far as this issue is concerned, the Respondent No. 2 in their reply have denied the aforesaid facts. Therefore, as per the affidavit filed by the State we are inclined to accept the reply submitted by the State that there is no obstruction to the flow of water into the pond as the mining leases have not been granted in the catchment area of the village pond and the pond continues to get rain water and the cattle in the village continue to drink water in the pond. We therefore find no merit in the aforesaid contention of the Applicant and the same deserves to be quashed. 13. Learned counsel for the Applicant also submitted that in the light of the decision of the Hon ble Supreme Court on 28 th January, 2011 in the case of Jagpal Singh (supra) the State Government has also issued a Circular on 25 th April, 2011 for taking note of the points raised in the aforesaid judgment with regard to the catchment area of the ponds and reservoirs and the pasture lands for being allotted. He submitted that in the instant case general directions may be issued to the State Government for observance of the directions issued in its judgment if the Hon ble Supreme Court in Jagpal Singh s case in Para No. 15 thereof and ensure that no part of the catchment area / pasture land should be allotted for other than the purpose for which they have been set apart without the consent of the Gram Sabha. 14. So far as this contention is concerned, since the Government has also taken note of the aforesaid judgment and issued the Circular on 25 th April, 2011, specific instances of any violation of the direction issued by the Hon ble Supreme Court may be brought to the notice of this Tribunal or the concerned authority and we expect that the concerned authorities shall take note of the same and initiate action after following the procedure prescribed. 8

9 15. As far as the aforesaid all the three mining leases are concerned i.e. ML Nos. 200/2004, 201/2004 and 250/2004 since all of them are at present remained closed as and when application or information is submitted by the mining lease holders to the SPCB during the pendency of the Application and if the the deficiencies as pointed out in the show-cause notice are removed, it is expected that the SPCB shall proceed to inspect the mining leases and in case the deficiencies as pointed out have been removed to the satisfaction of the SPCB, the SPCB shall issue necessary orders in accordance with law. Having said so, it is directed that as and when such applications are submitted by the lessees and the orders passed by the SPCB on such application, the same shall be filed before this Tribunal for examination of the same. 16. This Application stands disposed of in the above terms. (Mr. Justice Dalip Singh) Judicial Member Bhopal: May 20 th, 2014 (Mr. P.S. Rao) Expert Member 9

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