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IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Pradeep Nandrajog, CJ., G.R. Moolchandani, J.
Sanjay Kumar Garg S/o Bhagwati Lal Garg - Appellant
Versus
State Of Rajasthan Through Principal Secretary To Government Of Rajasthan - Respondent
Civil Writs No. 9458 of 2018
Decided On : 27-11-2018
MINING - BAJRI - ENVIRONMENTAL CLEARANCE - SHORT TERM PERMITS - VALIDITY - LEGAL FRAMEWORK - RAJASTHAN MINOR MINERAL CONCESSION RULES, 2017 - NOTIFICATION DATED 28/12/2017 - NOTIFICATION DATED 15/01/2016 - RAJASTHAN MINOR MINERAL CONCESSION RULES, 1986 - NOTIFICATION DATED 21/05/2012 - NOTIFICATION DATED 21/06/2012 - ENVIRONMENT (PROTECTION) ACT, 1986 - NOTIFICATION DATED 14/09/2006 - OFFICE MEMORANDUM DATED 24/12/2013 - NOTIFICATION DATED 09/09/2013 - NATIONAL GREEN TRIBUNAL ORDER DATED 13/01/2015 - SUPREME COURT ORDER DATED 16/11/2017 - MINES AND MINERALS (DEVELOPMENT AND REGULATION) ACT, 1957 - NOTIFICATION DATED 19/06/2012 - NOTIFICATION DATED 15/01/2016 - APPENDIX-VII - APPENDIX-VIII - APPENDIX-X - APPENDIX-XI - RAJASTHAN MINOR MINERAL CONCESSION RULES, 1986 - RULE 63(3) - PROVISO - RULE 65A - RAJASTHAN MINOR MINERAL CONCESSION RULES, 2017 - RULE 51 - SUPREME COURT DECISION IN DEEPAK KUMAR & ORS. VS. STATE OF HARYANA & ORS. - SUPREME COURT DECISION IN T.N. GODAVARMAN THIRUMULPAD VS. UNION OF INDIA & ORS. - SUPREME COURT DECISION IN TIRUPUR DYEING FACTORY OWNERS VS. NOYYAL RIVERS AYACUTDARS PROTECTION ASSOCIATION - LEGAL PROVISIONS, THEIR INTERPRETATIONS, AND HOW THEY INFLUENCED THE COURT'S DECISION.
Fact of the Case:
Petitioner challenged the grant of short term permits for mining of bajri without a scientific replenishment study being granted and without environmental clearance certificate being granted. The petitioner also challenged the grant of mining leases for bajri on agricultural land on the premise that a scientific replenishment study was not conducted.
Finding of the Court:
1. The court held that the legal provisions in the State of Rajasthan concerning mining of bajri on private khatedari lands and Government lands away from river beds, conforms to the principles of sustainable development and takes care of the environment. 2. The court held that the requirements of law pertaining to District Survey Reports and environmental clearances being granted in terms of the rules has been complied with. 3. The court held that the grant of short term permits is permissible under the rules and the adverse environmental impact would be minimal on account of the fact that the quantity of bajri which can be excavated has been specified. 4. The court held that the mining lease was granted to mine Ball Clay, Fire Clay, Red & Yellow Ochre and Gravel and friable sand stone which is a form of bajri is a by-product. Therefore, the necessary permission has been granted by the Mining Department to sell the same.
Issues: 1. Whether the grant of short term permits for mining of bajri without a scientific replenishment study being granted and without environmental clearance certificate being granted is valid? 2. Whether the grant of mining leases for bajri on agricultural land on the premise that a scientific replenishment study was not conducted is valid?
Ratio Decidendi: 1. The court held that the legal provisions in the State of Rajasthan concerning mining of bajri on private khatedari lands and Government lands away from river beds, conforms to the principles of sustainable development and takes care of the environment. 2. The court held that the requirements of law pertaining to District Survey Reports and environmental clearances being granted in terms of the rules has been complied with. 3. The court held that the grant of short term permits is permissible under the rules and the adverse environmental impact would be minimal on account of the fact that the quantity of bajri which can be excavated has been specified. 4. The court held that the mining lease was granted to mine Ball Clay, Fire Clay, Red & Yellow Ochre and Gravel and friable sand stone which is a form of bajri is a by-product. Therefore, the necessary permission has been granted by the Mining Department to sell the same.
Final Decision: The writ petition was 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 hereinabove, 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
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