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SUPREME COURT OF INDIA
L. NAGESWARA RAO, SANJIV KHANNA, B.R. GAVAI, JJ.
Bajri Lease Lol Holders Welfare Society Through its President – Appellant
Versus
The State of Rajasthan & Ors. - Respondents
Interlocutory Application No.29984 of 2021 In Special Leave Petition (Civil) No. 10587 of 2019, Special Leave Petition (Civil) No. 10670 of 2019
Decided on : 11-11-2021
(A) Mines and Minerals (Development and Regulation) Act, 1957 – Sections 21(5) and 23C – Rajasthan Minor Mineral Concession Rules, 2017 – Rule 51 – Damage caused to lakes, riverbeds and groundwater on account of quarry/ mining leases – Reasons given by State of Rajasthan for its objection to recommendation made by Central Empowered Committee (CEC) for cancellation of Khatedari leases is that mineral wealth lying in agricultural land should also be utilized – In view of scanty rain fall patterns in the State, submission of State is that mining leases in agricultural fields should be permitted – Insofar as additional penalty recommended by CEC for illegal sand mining and transportation is concerned, State is of the opinion that penalties recommended are excessive and their recovery would be difficult – CEC, in its report, has highlighted delay in grant of Environmental Clearance by Ministry of Environment, Forest and Climate Change (MoEFCC) to Letters of Intent holders as cause for widening gap in demand and supply of sand, which has resulted in proliferation of illegal sand mining activities to meet shortfall in supply – Recommendation made by CEC is that MoEFCC will issue Environmental Clearance in respect of all valid Letters of Intent holders recommended by Expert Appraisal Committee (EAC), within a period of three months, without insisting on submission of scientific replenishment study report as a pre-condition for grant of EC, with replenishment study due to be undertaken during course of mining – In spite of order passed by this Court on 16.11.2017 that no river sand shall be permitted unless a scientific replenishment study is completed and EC is granted, 194 mining leases of Khatedari lands have been granted in State of Rajasthan, with most of these lands being in close proximity of river banks of State – 114 Khatedari leases are within a distance of 100 metres or less from river bank and only 23 Khatedari leases have been granted beyond a distance of 5 kms from river bank – CEC has recommended cancellation of all Khatedari leases located within 5 kms from river banks as well as those leases where violation of lease conditions including misuse of e-ravannas are detected – CEC further recommended that no fresh Khatedari leases shall be granted, except for Palaeo deposits, without approval of this Court – Unabated illegal mining has resulted in emergence of sand mafia who have been conducting illegal mining in manner of organized criminal activities and have been involved in brutal attacks against members of local communities, enforcement officials, reporters and social activists for objecting to unlawful sand excavation. (Paras 10, 12, 13 and 15)
(B) Mines and Minerals (Development and Regulation) Act, 1957 – Sections 21(5) and 23C – Damage caused to lakes, riverbeds and groundwater on account of quarry/ mining leases – Compensation / penalty to be paid by those indulging in illegal sand mining cannot be restricted to value of illegally-mined minerals – Cost of restoration of environment as well as cost of ecological services should be part of compensation – “Polluter Pays” principle as interpreted by this Court means that absolute liability for harm to environment extends not only to compensate victims of pollution but also cost of restoring environmental degradation – Remediation of damaged environment is part of process of “Sustainable Development” and as such polluter is liable to pay cost to individual sufferers as well as cost of reversing damaged ecology – Section 21(5) of MMDR Act empowers State Government to recover price of illegally-mined mineral, in addition to recovery of rent, royalty or tax – Penalty recommended by CEC for illegal sand mining is in addition to penalty that can be imposed by State Government in terms of Section 21(5) of Act – However, basis for imposition of exemplary penalty of Rs. 10 lakh per vehicle and Rs. 5 lakh per cubic metre of sand has not been stated by CEC in its report – CEC directed to follow directions given by NGT in respect of imposition of penalty / determining scale of compensation for illegal mining and provisions of 2020 Sand Mining Guidelines and determine penalty / compensation afresh and submit report to this Court within a period of eight weeks from today. (Paras 16 and 18)
Facts of the case:
State of Rajasthan has filed Interlocutory Application No. 29984 of 2021 requesting this Court to accept recommendations made by the CEC in respect of all points, except recommendations ‘A’ and ‘J’. Recommendation ‘A’ relates to termination of Khatedari leases within 5 km of river bank and restriction on the State Government to grant fresh Khatedari leases without the approval of this Court. Recommendation ‘J’ pertains to exemplary penalty of Rs.10 lakh per vehicle and Rs.5 lakh per cubic metre of sand seized for violation of the order passed by this Court on 16.11.2017.
Findings of Court:
The statistics provided by the State Government highlights the magnitude of the problem as about 2411 FIRs have been registered in relation to illegal mining in State of Rajasthan, between 16.11.2017 and 30.01.2020. When this Court has restrained 82 mining lease / quarry holders from carrying on mining of sand and bajri unless a scientific replenishment study is completed and EC is issued by the MoEFCC, the State of Rajasthan ought not to have issued mining leases in favour of the Khatedars.
Result : Applications disposed of with directions.
JUDGMENT :
L. NAGESWARA RAO, J.
1. Realising the damage caused to lakes, riverbeds and groundwater on account of quarry/mining leases, the Ministry of Environment, Forest and Climate Change (“MoEFCC”) constituted a Core Group by its order dated 24.03.2009, to look into the following points:
“(i) To consider the environmental aspects of mining of minor minerals (quarrying as well as riverbed mining) for their integration into the mining process.
(ii) Specific safeguard measures required to minimise the likely adverse impacts of mining on environment with specific reference to impact on water bodies as well as groundwater so as to ensure sustainable mining.
(iii) To evolve model guidelines so as to address mining as well as environmental concerns in a balanced manner for their adoption and implementation by all the mineral-producing States.”
2. A report was submitted by the Core Group on the basis of which several recommendations were made by the MoEFCC relating to sand mining in March, 2010. Later, Model Guidelines on “Environmental Aspects of Quarrying of Minor Minerals” were formulated in 2010 for sustainable mining of minor minerals, along with draft rules titled Minor Minerals Conservation and Development Rules, 2010. In Deepak Kumar v. State of Haryana, (2012) 4 SCC 629, this Court directed the State Governments and Union Territories to implement the recommendations made by the MoEFCC in its report of March, 2010 and the Model Guidelines framed by the Ministry of Mines within a period of six weeks from the date of the judgment. The State Governments and Union Territories were also directed to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (“MMDR Act”). The above directions were issued by this Court after recording the deleterious effects of sand mining on biodiversity, such as destabilization of the soil structure of river banks and loss of habitat, to name a few.
3. Pursuant to the directions issued by this Court in Deepak Kumar (supra), the Rajasthan Minor Mineral Concession Rules, 1986 (“1986 Rules”) were amended by notifications dated 23.05.2012, 19.06.2012 and 21.06.2012. By the said notifications, mining leases for sand were to be given by tender/auction for a period of five years. Letters of Intent (“LoIs”) were to be issued to the eligible applicants by the competent authority and the eligible applicants were required to submit the requisite No Objection Certificates, Environmental Clearance (“EC”) and approved mining plan. As the grant of EC was likely to be delayed, the State of Rajasthan incorporated a provision in the 1986 Rules by way of the amendment dated 21.06.2012, permitting sand mining through the then existing system of Royalty Collection Contract and issue of Temporary Work Permit, till EC is granted.
4. A total of 130 mining plots were identified for conduct of auction for sand mining. Tenders were received for 105 plots. LoIs were issued to each of the successful bidders with respect to the105 plots, who were further directed to submit a mining application and obtain EC under the notification dated 14.09.2006 issued by the MoEFCC (“EIA Notification, 2006”) and submit the same within a period of 12 months. Between November, 2013 and March, 2016, 65 out of the 82 LoI holders presented final Environment Management Plant (EMP) after Environment Impact Assessment (EIA) study and public hearing. The Expert Appraisal Committee (EAC) constituted under the EIA Notification, 2006 by the MoEFCC recommended grant of EC to these 65 LoI holders. As EC was not granted by the MoEFCC to most of the LoI holders within a period of six months, the State of Rajasthan sought for extension of time for continuing the then existing system of sand mining by way of Royalty Collection Contract. The High Court refused the request made by the State Government by an order dated 21.10.2013. Aggrieved thereby, the State Government filed SLP (C) No. 34134 of 2013 before this Court. Th
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