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2018 Supreme(Raj) 1807
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Pradeep Nandrajog, CJ. and Mr. G R Moolchandani, J.
Sanjay Kumar Garg - Appellant
Versus
Secretariat, Jaipur And Others - Respondent
D.B. Civil Writs No. 9458 of 2018
Decided On : 27-11-2018
K.K. Sharma Senior Advocate assisted by Mr. S.S. Shekhawat Ms. Alankrita Sharma and Mr. Madhusudan S. Rajpurohit, Advocates, For Appellant; Mr. Anurag Sharma AAG with Mr. Krishnaveer Singh, Mr. Anirudh Mathur, Mr. Gaurav Bhardwaj, Mr. R.N. Mathur, Sr. Advocate assisted by Mr. Prateek Mathur, Mr. Ashwini Chobisa, Mr. Vimal Choudhary, Mr. Yogesh Kumar, Mr. Gaurav Choudhary, Mr. Punit Singhvi, Mr. A.K. Sharma, Senior Advocate assisted by Mr. Rachit Sharma, Mr. Manish Gupta, Mr. Rajendra Prasad AAG with Mr. M. Shiromani Sharma, Advocates, For Respondents
Headnote:
Rajasthan Minor Mineral Concession Rules, 2017 –Rule 51 – Granting short term permits – Permitting mining of sand – Petitioner filed the above captioned writ petition informing that he was issued a Letter of Intent for mining – In paragraph 1 of the petition he pleads that he is aggrieved by the action of the respondents in permitting mining of sand without there being any scientific replenishment study; granting short term permits under Rule 51 of the Rajasthan Minor Mineral Concession Rules, 2017 and granting mining lease on agricultural land – Case pleaded in the writ petition is that mining of bajri in the State of Rajasthan was hither-to-fore governed by the Rajasthan Minor Mineral Concession Rules, 1986 and as per proviso to Rule 63(3), no permission was required to mine bajri – Only royalty had to be paid – It is pleaded that vide notification the rules were amended – It is pleaded that the Letter of Intent holders applied to the Ministry for being granted the necessary permission but on account of non-grant of environmental clearances, permissions have not been granted –Held, Balance has to be struck between the two interests – Where the commercial ventures bring in results, which are far more useful for the people, difficulty of a small number of people has to be by-passed – Comparative hardships have to be balanced and the convenience and benefit to a large section of the people has to be given preference over comparatively less hardships – As observed by the Supreme Court in the decision reported Protection Association, the concept of sustained development covers the development that meets the needs of the person without compromising the ability of the future generation to meet their own needs – It means the development that can take place and which can be sustained by nature/ecology with or without mitigation – Therefore in such matters, the required standard is that the risk of harm to the environment or to the human health is to be decided in public interest according to a reasonable persons test – Writ petition is dismissed.
JUDGMENT
Pradeep Nandrajog, C.J. - The petitioner filed the above captioned writ petition informing that he was issued a Letter of Intent for mining Bajri in Tehsil Mozamabad, District Jaipur. In paragraph 1 of the petition he pleads that he is aggrieved by the action of the respondents in permitting mining of sand without there being any scientific replenishment study; granting short term permits under Rule 51 of the Rajasthan Minor Mineral Concession Rules, 2017 and granting mining lease on agricultural land.
2. Case pleaded in the writ petition is that mining of bajri in the State of Rajasthan was hither-to-fore governed by the Rajasthan Minor Mineral Concession Rules, 1986 and as per proviso to Rule 63(3), no permission was required to mine bajri. Only royalty had to be paid. It is pleaded that vide notification dated 21/05/2012 the rules were amended. (the nature of amendments not being pleaded in the writ petition). It is pleaded that the Letter of Intent holders applied to the Ministry for being granted the necessary permission but on account of non-grant of environmental clearances, permissions have not been granted. It is pleaded that law requires scientific replenishment study to be conducted. It is pleaded that vide order dated 16/11/2017 the Supreme Court prohibited mining of bajri without scientific replenishment study. Pleading that as an effect thereof the petitioner has been prohibited from mining bajri, grievance start from paragraph 12 of the writ petition. It is pleaded that to circumvent the direction issued by the Supreme Court the respondents have started granting short term permits (STPs) for mining of bajri as per Rule 51 of the Rajasthan Minor Mineral Concession Rules, 2017 as amended vide notification dated 28/12/2017. In paragraph 13 of the writ petition it is pleaded that the petitioner is not challenging the rules or notification, but is aggrieved by the fact that the short term permits are being granted without scientific replenishment study as well as environmental clearance. Names of 22 entities have been disclosed in paragraph 13 of the writ petition as the ones to whom short term permits have been granted. None of them have been impleaded as respondents. Pleading that in terms of a notification dated 15/01/2016 short term permits to mine bajri have been granted in areas of less than 5 hectares based on assessment by the District Environment Impact Assessment Authority, it is highlighted once again that this is sans a scientific replenishment study. It is pleaded that the notification dated 28/12/2017 allowing short term permits on agricultural land was challenged before the Supreme Court by an NGO but the challenge was withdrawn. The pleading in the writ petition take a dour. As noted herein above, the petitioner challenged grant of short term permits without a scientific replenishment study being granted and without environmental clearance certificate being granted, but in paragraph 18 pleads that the environmental clearance by the District Environment Impact Assessment Authority, being in a cyclostyle manner, were contrary to the spirit of the law. Further pleadings show that challenge to the grant of mining leases for bajri on agricultural land is once again on the premise that a scientific replenishment study was not conducted. Referring to certain decisions by the Ministry of Environment and Forest as to in what manner scientific replenishment study has to be conducted, it is pleaded that the scientific replenishment study would thus be required to be given a statutory flavour.
3. Prayer made is that the respondents should be prohibited from permitting mining activity of bajri without scientific replenishment study, be it for a short term permit on private agricultural lands.
4. The writ petition was filed before a learned Single Judge who, on 03/05/2018 passed a blanket order prohibiting mining of bajri in agricultural land or through short term permits. Applications came to be filed by p
