Durga Shankar vs Union Of India Ministry Of ...
2015 Latest Caselaw 923 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 9
 

 
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 35308 of 2015
 

 
Petitioner :- Durga Shankar
 
Respondent :- Union Of India Ministry Of Environment & Forest & 6 Others
 
Counsel for Petitioner :- Ved Prakash Singh
 
Counsel for Respondent :- C.S.C.,A.S.G.I./2015/1304,Mohit Kumar Shukla,Om Prakash Srivastava,R,K.Ojha
 

 
Hon'ble Arun Tandon,J.

Hon'ble Mrs. Sunita Agarwal,J.

Vakalatnama filed by Sri Om Prakash Srivastava on behalf of respondent no. 1 be taken on record.

This Public Interest Litigation has been filed with following reliefs:-

"(i) issue a writ, order or direction or a writ in the nature of mandamus declaring the Clause 7 in the Lease Deed in so far it allows use of machine for the purpose of mining by the State of Uttar Pradesh i.e. Respondent No. 2 to be avoid ab initio;

(ii) issue a writ, order or direction or a writ in the nature of mandamus directing the Respondent Authorities to ensure that no mining activities within the District Banda is being carried on in violations of the conditions enumerated in the Environment Clearance granted;

(iii) issue a writ, order or direction or a writ in the nature of mandamus directing the concerned Respondent Authorities to ensure that the conditions enumerated in the Environmental Clearance is being strictly adhered to by the Project Proponents;

(iv) issue a writ, order or direction or a writ in the nature of mandamus directing the concerned Respondent Authorities to take appropriate legal action against all such Project Proponents, who are found to be violating the conditions enumerated in the environmental Clearance and also the prevalent Environmental Laws, and report the same to this Hon'ble Court;

(v) issue any other appropriate writ, order or direction in favour of the petitioner as the Hon'ble Court may deem fit in the circumstances of the case;

(vi) award the costs of the petitioner to the petitioner."

Sri. R.K. Ojha, learned Senior Counsel with reference to this impleadment application filed on behalf of Sri Prakash Chandra Dwivedi, has raised three preliminary objection with regards to this petition being entertained on following pleas:-

(a) A writ petition was filed before the Lucknow Bench by his client being Writ Petition No. 10655 of 2013 (Manoj Tiwari & Another Vs. Union of India Thru. Ministry of Environment & Forest & Others). In the said writ petition, an order has been issued permitting him to use machines in the matter of excavation of minor minerals under the lease granted in his favour. Special leave petition filed by the State Government against the said order before the Apex Court is pending in which no interim order has been granted.

(b) That the petitioner before this Court is none other than the driver of one Sri Jagdish Prasad Nishad who had filed Writ Petition No. 12136 of 2015 (Jagdish Prasad Nishad Vs. State of U.P. & 6 Others) before a Bench of which one of us (Arun Tandon, J.) was a member. The writ  court passed an interim order on 26.2.2015 which was subsequently modified by another Division Bench on 31st March, 2015. The High Court has now permitted his client  to use semi-mechanized machines for excavation of minor minerals. A recall application has been filed, which is pending.

(c) That some members of the group of Sri Jagdish Prashad Nishad have also approached the National Green Tribunal for the same purpose and the same relief, which is pending there. Only notices have been issued. The present writ petition from para '6' to '32' is verbatim copy of the application which has been moved before the NGT, and the prayer is also the same.

Sri R.K. Ojha, learned Senior Counsel with reference to the paragraphs of the judgment of the Apex Court in the case of Deepak Kumar and others Vs. State of Haryana & Others reported in (2012) 4 SCC 629, submitted that the Mining Plan has to take note of the level of production, level of mechanisation, type of machinery to be used in the mining of minor minerals, quantity of diesel consumption etc. Therefore, permission for use of machines for excavation of minor minerals is contemplated therein.

Impleadment application has also filed by Sri Manoj Kumar Dwivedi, advocate on behalf of Sri Manoj Tiwari. He submits that if such Public Interest Litigations are entertained by this Court, it will be flooded with many such bogus petitions. A gang led by Sri Sanjeev Awasthi is involved in illegal mining and it is he who is behind the applicants. They want that no legal mining be done by mining lease holder. Persons like the petitioner in fact are actually engaged in extortion of money from the mining lease holders. An enquiry be got conducted by this Court in respect of the petitioner and cost should be imposed upon them.

Sri Ram Kaushik, advocate is also present on behalf of some of the lease holders, he proposes to file an impleadment application.

The judgment of the Division Bench of this Court in the case of Manoj Tiwari & another which is so heavily referred to the persons seeking impleadment reads as under:-

"We have heard learned counsel for parties and perused the pleadings of writ petition. Smt. Bulbul Godiyal, learned Additional Advocate General, on instructions states that there was mistake in mentioning JCB machine vide condition no.1 in the order dated 16.05.2013. The same will be corrected with grant of permission to go for mechanized mining in terms of the order of the Court.

We also clarify that all the machines/equipments which can be used for mining in terms of the guidelines issued by the Ministry of Environment and Forest for the semi-mechanized mining shall be permitted in this case also. In respect of similar cases, if any, needless to say that the grant of such benefits shall depend upon the facts and circumstances of each individual case.

In view of the aforesaid statement of learned Additional Advocate General and the position clarified, the writ petition stands disposed of."

Learned Additional Solicitor General also agrees that the said orders can govern the disposal of the writ petition.

In view of all the aforesaid, this writ petition is disposed of while granting the relief(s), in terms of the aforesaid orders."

Having heard learned counsel for the parties, we are of the considered opinion that the issue as to whether the machines can be used for excavation of minor minerals and if so, upto what extent was subject matter of consideration before this Court in the Case of Deepak Kumar (supra).

We may record that the Supreme Court after expressing its unhappiness with the manner in which mining activities are being permitted and carried out in the river beds at various places in various States of the country including the State of U.P., specifically directed all the States to adopt the Model Rules framed by the Ministry of  Environment and Forest under its notification dated March, 2010. It also directed that necessary amendments in the Minor Mineral (Concession) Rules, be made at all levels so as to bring them in conformity with the Model Rules. It further restrained the State Governments from granting any mining lease without there being an approved Mining Plan as per the Model Mining Rules of 2010.

The relevant part of the directions of the Supreme Court in the case of Deepak Kumar (supra) reads as follows:-

"The State of Haryana and various other States have not so far implemented the above recommendations of MoEF or the guidelines issued by the Ministry of Mines before issuing auction notices granting short-term permits by way of auction of minor minerals boulders, gravel, sand, etc., in the riverbeds and elsewhere of less than 5 ha. We, therefore, direct all the States, Union Territories, MoEF and the Ministry of Mines to give effect to the recommendations made by MoEF in its Report of March 2010 and the model guidelines framed by the Ministry of Mines, within a period of six months from today and submit their compliance reports.

We, in the meanwhile, order that leases of minor minerals including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from MoEF. Ordered accordingly."

The State of U.P. infact adopted the Model Rules 2010 by making 34th, 35th, 36th and 37th amendments in the Minor Mineral (Concession) Rules.

The amendments so incorporated in the Rules 1963 do not permit use of machines at any level of the mining operations.

Relevant paragraph of the judgment of the Apex Court which deals with use of machines in the matter of excavation of minor minerals as per the mining plan to be approved by the competent authority in terms of Model Rules, 2010 reads as under:-

"Mining Plan should take note of the level of production, level of mechanisation, type of machinery used in the mining of minor minerals, quantity of diesel consumption, number of trees uprooted, export and import of mining minerals, environmental impact, restoration of flora and host of other matters referred to in 2010 rules. A proper framework has also to be evolved on cluster of mining of minor mineral for which there must be a Regional Environmental Management Plan", we find that while sanctioning the Mining Plan, the Environment Impact Assessment Committee or the Competent Authority for that purpose is required to take note of the level of production, level of mechanisation, type of machinery used in the mining of minor minerals, environmental impact, restoration of flora and host of other matters referred to in 2010, Rules."

From a simple reading of the said paragraph, it is clear that it is for the authority granting no objection environment clearance/approving the Mining Plan, to examine as to whether any mechanised mining  is to be permitted or not and if such mechanised mining is to be permitted what category and to what level  of machines are to be used in the excavation of minor minerals having regard to the attending circumstances as noticed in the order of the Apex Court.

No other authority including the Leasing Authority has been given any power to examine or deal with the said issue of use of machines in the mining operations.

In the facts of the case, we have been informed that the authority competent to sanction the Mining Plan has specifically prohibited the use of machines in the mining operation by the lease holders. It has been stated that practically in all cases the mining plan permits open pit mining manually.

At least none of the applicants seeking impleadment before this Court could demonstrate that in the Mining Plan approved by the competent authority, any permission has been granted for use of the machines for excavation of minor minerals.

We, therefore, have no hesitation to record that all the lease holders are bound by the Mining Plan sanctioned in their favour in the matter of excavation of minor minerals as well as for restoration of the area which has been subjected to mining operations. The use of machines  in the excavation of minor minerals contrary to the approved mining plan is not permissible.

So far as the order passed the Lucknow Bench of this High Court is concerned, we may only record that the judgment proceeds on a concession made by the Additional Advocate General. It does not take note of the law laid down by the Apex Court in the case of Deepak Kumar that the mining plan as approved by the Competent Authority in the matter of environment clearance is sacrosanct.

The High Court while exercising powers under Article 226 of the Constitution of India need not sit in appeal on the correctness or otherwise of the Mining Plan as duly approved by the competent authority. It can only examine as to whether the required procedure in the matter of sanction of the mining plan has been followed or not.

We are of the considered opinion that the judgment which has been so heavily relied upon by Sri R.K. Ojha, does not lay down any binding precedent. It proceeds on a concession by the Advocate General. The Advocate General, in our opinion need not make concessions on issues of law, especifically in ignorance to what has been settled by the Apex Court.

What is binding in a judgment is the ratio of the decision on an issue raised and decided.

We are of the opinion that in larger public interest and to safeguard  the environment, the lease holders must be restrained from using any machine during the mining operation. They must continue with their  mining operations only in accordance with the approved Mining Plan. 

All other issues raised shall be examined after the parties exchange their affidavits.

We may only clarify that it would be in the interest of justice to treat the present writ petition as Public Interest Litigation (PIL) in exercise of suo moto powers even if the locus of the petitioner, is found to be doubtful or for his having not disclosed his personal details as required.

This matter shall also be listed before Hon'ble The Chief Justice for considering as  to whether this petition be also heard by the same Bench which is to hear matter relating to lease of minor mineral as per order dated 18.6.2015 passed in Writ-C No. 35257 of 2015 (Om Prakash Vs. State of U.P. & Others).

Till further orders of this Court, all the lease holders are restrained from using machines for excavation of minor minerals contrary to their approved mining plan in the State of Uttar Pradesh. The District Magistrate concerned must ensure strict compliance of this order.

			(Sunita Agarwal, J.)        (Arun Tandon, J.)
 
Order Date :- 19.6.2015/B.K.