Madhya Pradesh High Court
Seema Chouhan vs The State Of Madhya Pradesh on 8 May, 2017
WP-1029-2017
(SEEMA CHOUHAN Vs THE STATE OF MADHYA PRADESH)
08-05-2017
Shri Vivek Dalal, learned counsel for the petitioner.
Shri Yogesh Mittal, learned Govt.Advocate for the respondents No.2,4 &
5. Shri Ambar Pare, learned counsel for the respondent No.3. I.A.No.1109/2017 taken up.
The present petition has been filed against the order dated 22.4.2015, 5.5.2015, 9.9.2015 passed by National Greet Tribunal, Central Zone Bench at Bhopal in O.A.No.140/2013. By the said order the National Green Tribunal has directed the deposit of 50% of the cost in the estimated plan for restoration of environment. It has been stated by the State Government that the petitioner has not come with clean hands and the writ petition has been filed in the year 2017 against the order dated 15.12.2016 passed in O.A.No.140/2013 by the National Green Tribunal, by which the original application was finally disposed of. In light of the provisions of Section 22 of the National Green Tribunal Act, 2010 the remedy available is to approach the Hon'ble Supreme Court and, therefore, the petition be dismissed. It has been brought to our notice that in an identical case i.e. W.P.No.836/2017 filed before this Court a detailed and exhaustive order has been filed by this Court, which reads as under :-
14.2.2017 Shri Vivek Phadke, learned counsel for the petitioner.
Heard on the question of admission.
By this writ petition under Article 227 of the Constitution of India, the petitioner is praying for quashment of orders dated 15/12/2016 (Annexure- P/11), 22/04/2015(Annexure-P/8), 5/05/2015 (Annexure-P/9) and 9/09/2015 (Annexure-P/10), passed by National green tribunal, Central Zone, Bench at Bhopal in the matter of O.A. No.140/2013(Smt. Radha Rani Vajpayee vs. State of M.P. & Ors.).
2. Brief facts of the case are that the respondent No.1 â Smt. Radha Rani Vajpayee(deceased) filed an application before the National Green Tribunal under Section 18(1) read with Section 14(1) and Section 15(1) of the National Green Tribunal Act, 2010 on the ground that Hills in the area of Shankargadh, Dewas has almost vanished due to illegal mining. The site in question consisting of naturally grown forest is defined by the apex Court in case of T.N. Godavarman Thirumalpad Vs. Union of India and others decided on 12th December, 1996.
3. About 18 mines are operational on the Survey/Khasra Nos.449, 450/2 and 404 of village Shankargarh tehsil and District Dewas on about 30 Hectares of land at a stretch.
4. The Survey/Khasra No.449 of village Shankargarh has the following sanctioned mines which are collectively an area of more than 5 hectares and have been sanctioned without any Environmental Impact Assessment, or any cumulative impact assessment, these mines have been issued in the name of the following :-
1. Shri Ravi Pal Singh Bais r/o Kalani Bagh Dewas.
2. Shri Rajesh S/o Shri Madru Singh r/o Kalani Bagh Dewas.
3. Smt. Vijay Laxmi Sharma r/o Jawahar Nagar, Dewas.
4. Jayraj Patidar r/o, Milan Transport AB Road Dewas.
5. The Survey/Khasra No. 450/2 of Village Shankargarh has the following sanctioned mines more than 5 hectares in area and are operational without any cumulative Environment Impact Assessment done by any competent authority and damaging such important Eco-senstitive zone, the mining leases in question has been issued in the name of the following persons :-
1. Shri Sajid Ali Ibrahim r/o Moti Bagh Dewas.
2. Shri Manoj Kailashchand Joshi r/o Moti Bagh Dewas,
3. Smt. Vandana Rajkamal Joshi, r/o Moti bagh Dewas.
4. Smt. Swahela Khan, r/o Islampura, Dewas.
5. Shri Sharad Trchan r/o Bhopal Road Dewas.
6. The Survey No.404 of vilalge Shanagarh has the following sanctioned mines are collective operational on the area of more than
5 hectares without any Environment impact assessment :-
1. Shri Salauddin Nooruddin r/o Islampur Dewas.
2. Shri Sanjay Malviya, r/o Vijay Nagar, Dewas.
3. Smt. Kavita Vasant Chouhan r/o Civil Lines Dewas.
4. Smt. Swahela Khan, r/o Islampura, Dewas.
5. Shri Babulal Malviya r/o Dewas.
7. The said land of about 30 Hectares is a forest land.
The area in question is very crucial from the ecological and environmental aspect, the land being about 30 Hectares needs a environmental impact assessment to be done and following prayer has been made in the said petition :-
1. This Hon'ble tribunal may be pleased to direct the perpetrators doing the illegal mining on the land in question to pay for the pollution so done according to Polluter pay Principal so laid down by the Hon'ble Apex Court in various matters.
2. This Hon'ble tribunal may be pleased to fix the responsibility on the responsible Public authority, who, in nexus with the illegal miners have being allowing such illegal Mining activities in their respective areas of administration.
3. This Hon'ble tribunal may be pleased to direct the State government and the perpetrators to make good the geological and ecological loss caused at the site by back filling the mined and excavated portion and the cavity formed to the lands and restore the area back to its original status and carry out plantation in the area.
4. This Hon'ble Tribunal may be pleased to direct the competent authorities to seize the JCBs and other machines involved in the illegal mining activities and further to initiate proceedings to forfeit the JCBs and other machines.
5. This Hon'ble Tribunal may be pleased to issue directions to declare the site as Eco-
Sensitive Zone.
6. This Hon'ble Tribunal may be pleased to give any other direction(s) in the favour of the applicant looking to the facts of the case.
8. The learned National Green Tribunal, Central Zone, Bench at Bhopal on 24th March, 2015, 22nd April, 2015, 5th May, 2015 and 9th September, 2015 passed the following order:-
24.03.2015 Shri Sachin K. Verma, learned counsel appearing for the State of MP as well as Shri Ajay Gupta, learned counsel appearing for the respondents lease holders have submitted that all the 33 mining leases have been cancelled/closed down, so also the stone crushing units have been closed down and sealed. So far as the grievance raised in the petition relating to unauthorised mining company to the provision of the environmental laws and the operation by the stone crushing units are concerned, the District Administration, the Mining Department and the State have also taken action in the matter.
The issue remains to be considered is with regard to loss of environment as also measures and steps required to be taken for restoration/afforestation and prevention of illegal activities in future. Shri Sachin K. Verma, learned counsel for the State of MP submitted that through the District Collector a meting of all concerned departments i.e. mining, forest and revenue etc. along with the officials of the MPPCB shall be held and steps which may be taken for restoration and afforestation as well as pr venting legal activities shall be submitted with due proposals as also the estimated cost fort the same.
The State shall also submit the details of the turnover of the respective mining lease holders as well as by the stone crushing units for determination of their liability with regard to restoration.
Let the matter be listed on 22th April, 2015.
22.04.2015 Shri Sachin K. Verma, learned counsel appearing for the State of MP seeks time to submit the estimates which have been worked out in the meeting conducted by the District Collector of all concerned officials and copy of the estimate has been provided to the learned counsel for the respondent/33 Crushing Units. He seeks time to make submissions on the same. Shri Sachin K. Verma, learned counsel is directed to file copy of the estimates along with the affidavit from the State. We make it clear that so far so the aforesaid estimates are concerned the owners of the mines and crushing units shall be liable to pay 50% of the estimated amount and 50% shall be borne by the State and it shall be the responsibility of the State through its various departments and organization to carry out the aforesaid work of restoration.
Let the matter be listed on 5th May, 2015.
22.04.2015 Shri Sachin K. Verma, learned counsel appearing for the State of MP seeks time to submit the estimates which have been worked out in the meeting conducted by the District Collector of all concerned officials and copy of the estimate has been provided to the learned counsel for the respondent/33 Crushing Units. He seeks time to make submissions on the same. Shri Sachin K. Verma, learned counsel is directed to file copy of the estimates along with the affidavit from the State. We make it clear that so far so the aforesaid estimates are concerned the owners of the mines and crushing units shall be liable to pay 50% of the estimated amount and 50% shall be borne by the State and it shall be the responsibility of the State through its various departments and organization to carry out the aforesaid work of restoration.
Let the matter be listed on 5th May, 2015.
05.05.2015 Learned counsel for the State has submitted that the State has formulated the plan figuring out the plantation work as earlier directed by the Tribunal in the exploited area of the 33 stone crusher / stone quarries. It has been submitted that the per hectare cost of restoration has been determined at the rate of Rs.5 lakh per hectare in terms of the earlier order of the Tribunal The lessees and the quarry operators are required to bear 50% of the cost and the rest 50% is to be borne by the State. Pending finalization, we direct that provisionally quarry owners and stone crushing units shall deposit an amount of Rs. 1 lakh per hectare with the Registrar, national Green Tribunal Central Zone Bench for being paid to the State. Learner counsel appearing for the stone crushing units / lessee submits that the may be permitted two days time to take instructions in the matter. In the interest of justice, we are inclined to grant time.
In the meanwhile, learned counsel for the State shall also submit the details of the restoration plan as drawn up by the State. As directed earlier, the quarry owners and stone crushers may also submit their restoration plan in case any proposal on the stone crushing units are required to be taken into consideration the same will be handed over to the learned counsel for the State for consideration.
We make it clear that the aforesaid order is not restricted to the case of the respondent stone crusher units / quarry leases but also to asll such parties to whom closure notices have been given by the MP State Mining Corporation and PCB. Learned counsel for the State shall forward a copy of this order to the units who are not party to this application and they may submit their response before the Tribunal on the next date of hearing i.e. 26.05.2015.
List the matter on 7 t h May, 2015 for response of the respondents on deposit of the amount for which learned counsel has sought time to take instructions.
09.09.2015 The learned counsel for the State Government has produced before us documents from the Divisional Forest Officer Dewas wherein vide letter dtd. 14.08.2015 he has informed the District Collector about the restoration plan for which this Tribunal had ordered after having stopped the illegal mining and stone crushing units operating therein. The State Government needs to apprise us as to how much financial resources it intends to provide for the restoration work for the first year i.e. 2015-16 on the basis of the project report / restoration plan submitted by the DFO, Dewas.
Shri Ravikant Patidar, learned counsel for the mining lease holders as well as the stone crusher submits that they had carried out the activity only in terms of the valid lease granted to them. He submits that in view of the above, M.A. No.402/2015 with the prayer that the liability may not be fastened upon the mining lease holders and the stone crushers. We ae not impressed by the aforesaid submission. Our attention has also drawn to order dtd. 05.05.2015 wherein we had directed that each of the mining lease holders shall be required to deposit 50% of the amount for meeting the restoration cost and was required to give the security in terms of our order of Rs.1,00,000/-(one lakh ) per hectares. Based upon the estimate which have been submitted now by the State Government, we find that the total cost for each of the mining lease holder / stone crusher unit needs to be revised as they have only deposited security by cheque of Rs.1,00,000/- ( one lakh) each whereas their area under mining lease / stone crusher may be much more. The State Government on the next date, therefore, shall provide correct estimate with regard to the liability to be fastened on the basis of the 50% of the cost on each of the mining lease holder / stone crusher units based upon our earlier order dtd. 05.05.2015.
Let the matter be listed on 23rd September, 2015.
9. By order dated 15/12/2016, the learned Tribunal imposed fine which is to be paid by each mining lease holders. Para 15 to 20 of order dated 15/12/2016 are relevant which reads as under :-
15. In the light of the above and looking to the fact that their mining leases and the permissions granted to the stone crushers have already been cancelled and a restoration plan for the area has been prepared, we would direct that restoration plan be put into operation as soon as possible in a phased manner as indicated therein. In so far as the funds are concerned it has already been directed vide our order dated 05.05.2015 that the mining leaseholder are required to pay an amount of Rs. 1 lakh per hectares. In the light of the above, we direct that since 50 per cent of the cost of the restoration plan has been ordered to be recovered from the owners of the stone crushers and the mining leases as held by us on 22.04.2015 and 50 percent of the cost for restoration is required to be borne by the State which was revised to Rs. 5 lakh per hectares. In so far as the, stone crushers are concerned vide order dated 05.05.2015, initially they were directed to deposit an amount of Rs. 1 lakh per hectares each. The quarry leaseholders were also directed to deposit an amount of Rs.1 lakh initially. Based upon the above we now direct that the amount of Rs. 5 lakhs by each mining leaseholder be deposited with the DFO Dew as at the rate of Rs.1 lakh per hectares in the following manner:
(I) One installment of Rs. 2 lakhs be deposited by 31.01.2017 and subsequent installments of Rs. 1 lakh each subject to the upper limit of Rs. 5 lakhs per leasholder at the rate of Rs.1 lakh per hectares by the last date of every calendar month.
16. So far as the, cheques submitted by 26 leaseholders are concerned as has been noticed hereinabove the expiry date for the validity of the cheques having expired the Registrar shall remit the same to the DFO be returned to the respective mining lease owners in consultation with the officer of Dewas. Other mining leaseholders who had not deposited the amount in terms of the order of the Tribunal shall also be liable to pay the said amount on similar terms.
17. It would be the duty of the Mining Officer to issue Notice to all the mining lease holders of Shankar Gadh and Jamgodrani area of Dew as whose mining leases have been cancelled and closed down to deposit the said amount in the manner that has been provided hereinabove. Similarly, the amount of Rs. 5 lakhs shall be deposited by each stone crusher owner / operator with the Mining Officer per stone crusher unit with the initial payment to be made of Rs. 2 lakhs on or before 31.01.2017 and the remaining installments of Rs. 1 lakhs each by the end of every month.
18. For recovery of the amount Notices shall be issued by the Mines Department. In case any of the parties fail to pay the amount in the aforesaid manner the District Collector Dew as shall issue recovery notices along with the notices orders for attachment of the property of the lessees / stone crusher owners / operators shall also be simultaneously issued.
19. We would direct that the State carry out the restoration plan as submitted before us and in a phased manner that has been submitted before us. The District Collector as well as the CCF Ujjain will be responsible for satisfactorily carrying out the restoration work in the affected areas.
20. With the aforesaid directions the Original Application No. 140/2013 stands disposed of along with the pending M.As. No. 402/15, 763/15, 49/16, 50/16, 168/16, 692/16 & 693/16.
10. The petitioner is aggrieved by the aforesaid order and has filed this writ petition under Article 227 of the Constitution of India. Section 22 of the National Green Tribunal Act of 2010 reads as under :-
22. Appeal to Supreme Court :- Any persons aggrieved by any award, decision or order of the tribunal, may, file and appeal to the Supreme Court, within ninety days from the ate of communication of the award, decision or order of Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908).
Provided that the Supreme Court may, entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal.
11. From the aforesaid provisions, it is very clear that any persons aggrieved by any decision of the order of the Tribunal, may, file an appeal before the apex Court within 90 days from the date of communication of the order of Tribunal.
12. Under Section 22 of the National Green Tribunal Act, 2010, there is no provision that if any interim order is passed then the writ petition under Article 227 of the Constitution of India is maintainable.
13. In view of the aforesaid, the writ petition filed by the petitioner is not maintainable and is accordingly dismissed.â The facts of the present case are identical. Resultantly, the present petition stands dismissed with a liberty to the petitioners to approach to the Hon'ble Supreme Court of India. It is needless to mention that the order passed by the Division bench was subjected to review by filing a Review Petition No.107/2007 and the review petition was also dismissed with a cost of Rs.10,000/- and, therefore, in the light of the order dated 14.2.2017 the present petition is not maintainable as an alternative, equally efficacious remedy is available to the petitioner. The admission is declined.
(S.C.SHARMA) (RAJEEV KUMAR DUBEY)
JUDGE JUDGE