Himachal Pradesh High Court
General Public Of Saproon Valey vs State Of Himachal Pradesh on 1 January, 1993
JUDGMENT
1. The petition is in the nature of a public interest litigation. The grievance, as put forward by the petitioners in C.W.P. No. 567 of 1988, is that in this valley, they depend on the cultivation of cauliflower seeds, fruits like plum, pear, apricot, peach, almond and vegetables like Mirch, Tamato, Makhan been and crops like maize, wheat etc. Thus, majority of the population, they say, are agriculturists and earn their livelihood on of that. The mines are at a higher altitude and on account of blasting, debris in the form of loose soil rolls down and causes obstruction 10 paths, fields and houses of the petitioners besides denuding the area of vegetation.
It has also affected ecological system. The result of mining activities has also been that due to flush floods, certain houses animal and fertile soil has been washed away and water resources have been finished.
They also complaint that these mining activities have continued on account of political pressure and no action has been taken by the State Govt. to stop them although a number of representations have been submitted highlighting the seriousness of the situation.
2. The operation of these mines has not only cause immense loss to the petitioners but it has effected the ecological balance in the area. The grant of leases has been in clear contravention of the statutory provisions under the Indian Forest Act 1927, the Forest (Conservation) Act, 1980, the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 and the Rules framed thereunder, the Mines Act, 1952 and Environment (Protection) Act, 1986,besides the constitutional provision under Articles 48-A and 51-A.
3. In their reply respondent 6 to 11, 15 & 16 have said that mining lease were granted by the State Government after going through all the codal formalities, including inspection, survey etc., and the allegations raised by the petitioners are belated, vague and on account of ill feelings. They are not representatives of the 16 villages and according to the topography of the area, the mineral wealth is on one side of the hillock while the vegetation is on the other side thereof. During the mining operations, inspections carried out by experts at the instance of the State Government and in case deficiencies are found, remedial measures are prescribed and implementation sought. It has been denied that on account of these mining operations, there has been road blocks, flash floods, loss of environment and ecology and animals and the property of the petitioners. They also say that there has not been any loss to any water channel or spring on account of these operations and the same may be on account of the normal rains. They have also denied the falling of the trees and they say that large number of trees have, in fact, been planted by them in the area. According to the respondents, these are small mines and provide employment to the local people as and when they are idle from agricultural operations. Therefore, closures' could naturally result in non-exploitation of the natural wealth and would also render them and their labour idle. They have also denied that they are violating the provisions of the various Acts stated in the petition. In support of their averments, certain documents have also been filed to show that the allegations made against them by the petitioner are bereft of substance.
4. In compliance of directions made by the Court on December 13, 1988 the Director Industries, Himachal Pradesh visited the mines and filed a further affidavit thereafter. In this affidavit he stated that for granting mining leases the applications were considered on merits but the lease holders were advised to submit mining plans before the leases could be executed. Continuance of mining operations was according to the affidavit, permitted by issuance of short term permits as and interim measures. The work for preparation mining plans was undertaken and an Assistant Geologist was deputed for it. The lease - holders were asked to take steps to improve the mining output and reduce wastage of natural resources. They were directed to take measures like the construction of check dams and plantation of trees etc. in some areas and they intimated that the steps had been taken in accordance with technical advise of the Assistant Geologist. Thereafter, it was inspected by the Assistant Geologist who reported that the lessees had taken those steps. Finally, it has been stated that in order to undertake the work scientifically and in accordance with the advise of Technical Officer, some more time was necessary for these lessees.
5. On December 26, 1988 the Court made an order asking the District Magistrate to visit the area and make a report. In compliance thereof the District Magistrate, Solan inspected the mines on 3rd and 4th January 1989. In his affidavit dated January 7, 1989 the District Magistrate stated that the inspection was carried out in the presence of the petitioners and the respondents in addition to Shri T.S. Thakur, Assistant Geologist, Sub-Divisional Magistrate, Tehsildar and Naib-Tehsildar, Solan and one Shri Amba Dutt Sharma, Pradhan, Gram Panchayat Dangri, in whose Panchayat many of the quarries fell. It has been pointed out that lessees (respondents Nos. 9, 10 & 11) had constructed check dams etc. as stated by the second respondent in his affidavit, these check dams were nothing hut stones dressed properly. They were loose and were thus incapable of restraining any flowing matter like debris. In other cases, the condition was no better. Plantation had not been done properly, effectively and plentifully. In some cases, tree branches were found affixed into the soil. Blasting operations were not properly done causing damage to the areas below these mines. It was also mentioned that the water source (Bowli) in village Lavikualn had been completely damaged like the grazing lands. Further, from the works that had been carried on, it could be seen that the lessees had undertaken the same recently. In a nutshell, the report gives an unsatisfactory picture about the working of these mines.
6. The report of the District Magistrate was seriously challenged on behalf of the lessees who filed a number of affidavits pointing out in detail the work carried out by them and the manner of the working of the mines. It is thereafter that this Court thought of appointing a Committee in its order of April 19, 1989. Parts of the report of the Committee, appointed in pursuance of that order, have been adverted to in the earlier part of our judgment.
7. The submission made on behalf of the petitioners initially was that the report of the Committee aforesaid should be accepted by this Court and it be ensured, through appropriate directions, that category. A mines should faithfully observe the requirements laid down for them in a paragraph 4.4 of the report. Also, that a Monitoring Committee be appointed by this Court which should the functioning of these mines subsequently, however, it was urged on behalf of the petitioners that the functioning of even category A mines deserved to be stopped as these mines did not satisfied to the guidelines mentioned by the Committee in paragraph 3.3 (environmental consideration) 3.4 (Geological Geomorphological siderations); and 3.5 (Technological consideration conversation during operational phase) together with those contains in paragraph 3.6 (outlines for mining operations and post-operational phase to minimize the environment degradation). Learned Council pointed out some, from amongst the various factors mentioned by the committee in these paragraphs with emphasis.
8. The submission on behalf of the lessees, however, was that they were not only prepaid to ensure compliance with the guidelines contained in paragraph 4.4 in relation to category A mines in addition to the requirement of the mining plants in each of the mine but were also prepared to abide by such further directions as this Court may make in that regard and no subject to working of the mines to be overseas by the monitoring coining which this Court may appoint for the purpose. What was further emphasised was that even in respect of category 13 mines the reasons which led the committee to take the view that they did not deserve to be permitted to work were not which could not be taken care by the lessees so as to enable them to work those mines as well. It was suggest on behalf of the lessees of these four category B mines by the learned counsel that after laying down such requirements as this Court thought proper these mines may also be permitted to the work as prayed by the petitioner in Civil Writ Petitions Nos. 598 of 1989, 599 of 1989, 600 of 1989 and 601 of 1989.
9. The effort that this Court made to ascertain the existing conditions at the spot where mining operations were going on and the effect thereof upon the environment was by deputing from time to time, officials or a body of persons, asking them to visit the area and make a report to this Court. The report made to this Court were found to be differing from each other and it was on that account that, eventually, the Committee with Secretary Industries) to the Government of Himachal Pradesh, as Chairman, was directed to be constituted to make an indepth study of the problem. This Committee, as detailed earlier, included experts like the Directors of Geological Survey of India, of Mines Safety and Professors of Forestry and Geology. The Committee drew up a detailed report. It not before itself certain guidelines in paragraphs 3.2 to 3.6 and then proceeded to classify the mines into two categories A and B as has been observed by the Committee in paragraph 4.2 of the report. It is not possible to accept the plea made on behalf of the petitioners that category A mines should also be directed to stop their working forthwith, inasmuch as, they do not qualify for being permitted to continue working on account of some of the factors enumerated by the Committee in paragraphs 3.3 to 3.6 of the report. The plea founded upon the observation made by the District Magistrate, Solan, in his affidavit after his visit to the are in consequence of out direction dated December 26, 1988 does not merit acceptance. More so, when it is clear beyond doubt that long after the visit of the District Magistrate, Solan to these places on January 3 and 4, 1989, the Members of the Committee visited the area and inspected the mines on July 3 and July 4, 1989. Similar considerations apply to the plea made on behalf of the lessees of category B mines who canvassed for being permitted to resume mining operations not with standing the recommendations of the Committee to the contrary.
10. The limestone found in the area is not at high grade. It is of the lime-kiln grade. The mining is done manually and open cast mining is being carried out. The complete stoppage of mining in this area may not adversely affect the national interest. It may, however, cause hardship to some lessees or the labour employed by them. In reply to a Court question, Shri R.L. Sood, appearing for the State Government, stated that the total direct benefit from all the eight leases to the State Government, by way of royalty, was to the tune of rupees one lac which would be about rupees for lacs for a whole year after April 1, 1991 due to the increase in the rate thereof, Direct employment benefits were available to about 250 families on account of these mines where as income by way of tax per year on carriage of material by road would be about Rs. 4,50,000/- from after April 1, 1991 due to the increase in the rate of tax per tonne from Rs. 4/- to Rs. 15/-, the total carriage being of about 30,000 tonnes. The direct and indirect pecuniary advantage to the State from the mining operations in all these eight mines is fairly low. Employment potential, too, is not of a high order.
11. The plea so passionately put forward by Shri Rajiv Kataria, appearing for the petitioners in writ petition No. 598 of 1989, 599 of 1989, 600 of 1989 and 601 of 1989 for their being permitted to continue working their mines does not deserve acceptance. The location of these mines, noticed earlier, is almost adjacent to each other. It is at Lavighat. What has been found by the Committee about these mines is that the generation of overburden soil and scree in their case is very high and the removal of the soil over burden may cause mud creep, adding to the debris flow into the nallah. Besides, over-flow of scree, removed from up-stream of check-dams, whose construction would not be economically variable in the long run, frequently, may damage the agricultural land below the road level as the width of the nallah is considerably small due to encroachment. These mines are visible from the national highway and the Solan town and are aesthetically eyesore. What has been suggested on behalf of the lessees of these four mines is that the factors aforesaid can be taken care of suitably by ensuring that additional check-dams be constructed to the satisfaction of a monitoring agency to be appointed by this Court and the frequency of removal of scree may also be fixed by the same agency. Small breast walls on both the margins of the nallah could be constructed before removal of the soil overburden and bushy plantation could be made on both sides of the nallah to avoid the flow of debris into it while removal of the soil overburden. The bench system of mining envisaged in the mining plan would ensure that there is no land-slide in spite of the hill slope angle adjoining the mines. Further, fruit and other plantation can be done on the benches to ensure that no sear is caused and that the scars visible on account of mining operations undertaken earlier could be attempted to be removed by undertaking similar measures wherever possible. The monitoring agency can require observance of these conditions on pain of the stoppage of mining operations wherever it felt that enough was not being done by the lessees.
12. We have been told that, according to the mining plan, the possible period of exploitation in respect of the mines of petitioner Hari Ram (C.W.P. No. 598 of 1989) is fifty years; of petitioner Sita Ram (C.W.P. No. 599 of 1989)" is 3 years. The period is thus either too short or too long. The mining plans of all these petitioners were before the Committee. The Committee also had before it the views expressed by the Assistant Geologist who had camped in the Saproon Valley from January to April 1988 in order to initiate the mapping of the mines and to get the lessees to carry out some developmental works for minimising the degradation of the environment. All these aspects, we can reasonably assume were present in the mind of the Committee before it made its recommendation contained in the report.
13. On the material before us we would not be inclined, as it were, to go into the correctness or otherwise of the conclusions of the Committee. We prefer to follow the course adopted by the Supreme Court in Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P. AIR 1985 SC 652 wherein the Supreme Court did not embark upon an enquiry about the merits of the Bhargava Committee report itself. This is clear from the observations made by the Supreme Court in paragraph 10 of its judgment. What it did was to appoint another high powered Committee, namely, Bandopadhyay Committee to go into the matter further.
14. At this stage we may also refer to some observations which the Supreme Court made in paragraph 12 of the judgment. It said that:
" The consequence of this Order made by us would be that the lessees of limestone quarries which have been directed to be closed down permanently ...... after consideration of the report of the Bandopadhayay Committee, would be thrown out of business in which they have invested large sums of money and expanded considerable time and effort. This would undoubtedly cause hardship to them , but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment......"
And, in paragraph 13, where it said that:
".... as a result of this order made by us, the workmen employed in the limestone quarries which have been directed to be closed down permanently ..... or which may be directed to be closed down permanently after consideration of the report of the Bandopadhyay Committee, will be thrown out of employment ..... But the limestone quarries which have been or which may be directed to be closed down permanently will have to be reclaimed and afforestation and soil conservation programme will have to be taken up in respect of such lime-stone quarries ....the workmen who are thrown out of employment in consequencc of this Order shall, as far as practicable and in the shortest possible time, be provided employment in the afforestation and soil conservation programme to be taken up in this area."
15. We may also mention that Shri Rajiv Kataria, appearing for the lessees, attempted to draw a distinction between the circumstances in which the Supreme Court made the directions that it did in case of the mires in Doon. Valley and those prevailing in the Saproon Valley. He pointed out that in the case before the Supreme Court there were 105 lessees, as against eight in the present case, who were extracting major mineral (Limestone of high grade or dolomite) where the production of even one mine was more than the entire production of eight here collectively. Also, that in Dehradoon area mining had started somewhere in the year 1911 and had gone on in haphazard manner for nearly 75 years before the matter engaged the intention of the Supreme Court unlike the present case where extraction of limestone, a minor mineral, started in the year 1978 and the haphazard mining had gone on only for about ten years and had not resulted in large scale destruction of the area. The mines, according to Shri Kataria, in the Doon Valley were within reserved forest area and there was deforestation on a large scale unlike the case of Saproon Valley mines where the deforestation was not much and no mine was located within any reserved forest area. It was also pointed out that in the case before the Supreme Court no ropeways had been constructed for carriage of limestone or dolomite. Roads had been constructed by the lessees almost up to the place where mining was being done for loading the extracted material. In the present case, according to Shri Kataria, there are ropeways for carriage of the material and at some places these are nearly 11/2 kilometer in length. Mines in the present case, said Mr. Kataria, are at a distance of 3 kilometre from Municipal limits of Solan which according to him, made the location of these mines far away from the Municipal limits unlike in the case before the Supreme Court.
16. In view of the considerations aforesaid, Shri Kararia urged, with some emphasis, that category B mines also deserved to be permitted to work irrespective of the recommendations of the Committee appointed by us and further that total stoppage of mining operations in the Saproon area was not called for as was canvassed by Shri M.L. Sharma on behalf of the petitioners in C.W.P. No. 567 of 1988. We have given our anxious consideration to these submissions but we feel, for the reasons inclined to depart from the recommendations made by the Committee in its report of Nov. 24, 1989.
17. That brings us to consideration of category A mines. The factor highlighted by Shri M.L. Sharma, for closure of these mines as well, have been indicated by us earlier in his judgment. To recapitulate, we may mention that special emphasis was placed by Shri Sharma upon the factors enumerated by the Committee in paragraphs 3.3 to 3.6 of its report. His effort was to persuade us that these had not been kept in mind by the Committee even when it had approved the continuance of the working of category A mines subject to stipulations made in paragraph 4.4 of its report. This submission has not impressed us. We have said earlier also that all these factors were present in the mind of the Committee as mentioned by it in paragraph 4.2 of the report. There is nothing to doubt the statement contained in that paragraph that the Committee classified the mines into two categories "keeping in view the guidelines discussed earlier'. Besides, the fact that one of the mines of this category (Padgal and Sumti Limestone Mine of M/s Kushal Singh and sons) is not located in the Saproon Valley but is on the main Solan-Kalka highway, leaves only three mines of category :A: for consideration by us. It was said by Shri Sharma that the working of the mines of Padgal and Deon Limestone Mine of Nathi Ram Verma (respondent No. 7) and Deon Limestone Mine of Om Parkash (respondent No. 8) (both category :A: mines) has resulted in stoppage in Saproon Chasma since the year 1978/1979 and that the life of the people and cattle has become miserable on that account. This has become miserable on that account. This has been adverted to in paragraphs 3 and 4 of the writ petition. These allegations have been denied in the reply sworn by the Director of Industries on Nov. 11, 1988. In the same affidavit facts have been disclosed in a little more details in paragraph 7 wherein it has been mentioned that the lessees were carrying on blasting to a limited extent just to crack host rocks for easy mining of minerals and not to waste by making heavy charge of explosive to allow fly off minerals and thus waste them. Further that physico-chemical and bacteriological constituent of water is not affected. We have mentioned these facts only with a view to judge the feasibility of acting upon the bald statement contained in the petition in this respect.
18. The petitioners have also filed objection to the report of Nov. 24, 1989 of the Committee. In it, as far as category A: mines are concerned, it has been pointed out that thest mines were allowed to operate with the stipulations (1) to (5) mentioned at page 16 of the report and that these stipulations, read with the inspection note, Annexure RD with the main petition (reference being to the letter sent to the lessee M/s. Kushal Singh and sons by the Director of Industries, Himachal Pradesh) showed that in addition to the guidelines in the working plan and the suggestions contained in the Annexure, the above stipulations contained in clause 4.4 of the report had not been followed by the proprietor of category :A: mines. Further, that neither old workings were demarcated with distinct colour nor 7.5 meters of barrier was maintained and indicated in a distinct colour in the plan, so much so that no unloading chute arrangements were made. Stipulation No. 5 had not been complied with at all. The further assertion in the objections is that in addition to the guidelines contained in the mining plan and Annexure - RD, the stipulation contained in the report of the committee at page 16 ( referring to paragraph 4.4) be directed to be implemented by category :A: miners and until these were found to have been complied with, mining operations in category :A: mines be also ordered to be stopped.
19. Reply to the above objections has been filed on behalf of category :A: mines. In it, it has been stressed that miners of category :A: mines had complied with the recommendations stipulated in paragraph 4.4 of the report of the Committee ; mining operation was being done under complete supervision of the District Mining Officer who had been clearly demarcated and the barrier of 7.5 metres was maintained between the two leases and has been clearly so demarcated in the working plans, that at the loading point big retaining wall had been constructed so that there may not be any slippage of the limestone and the limestone is loaded directly from the loading point into the trucks from the small gate made in the retaining wall and further that the height and width of the benches has been rectified and was not more than 1.5 metres and the width was not less than the height.
20. It is true that the present proceedings are in the nature of public interest litigation and insistence on strict proof about a fact asserted by a party may not be expected from it as in an adversary litigation, yet, the present proceedings under Article 226 of the Constitution are basically summary in character. The Court makes out its own modalities for ascertaining the essential facts to make up its mind about the nature of directions which it should make. In the present case, like the cases before the Supreme Court in respect of the limestone/dolomite mines in the Doon Valley, appointment of an expert Committee was considered to be the best way for ascertaining necessary facts. The Committee consisted of responsible people whose bona fides could neither be nor has been assailed before us. We have, therefore decided to be guided by its recommendations.
21. Having regard to the nature of the Saproon Valley, its vegetation, fertilizer aesthetic appeal and proximity to the growing town of Solan, which is an important place in the State of Himachal Pradesh, we would like to ensure proper supervision of the mining activity in the three category :A: mine of M/s Kushal Singh and sons situate on the Solan Kalka highway. For that end, we direct setting up to a Monitoring Committee consisting of the Secretary (Industries) to the Government of Himachal Pradesh, as Chairman, and the Chief Engineer (Irrigation and Public Health) Himachal Pradesh, Director Geological survey of India, Himachal Pradesh, and Professor and Head of Department of Forestry of Dr. Y.S.Parmar University of Horticulture and Forestry, Solan, as Members. The State Geologist of Himachal Pradesh shall assist the Committee as a non-member Secretary. This Committee would visit the area where category :A: mines are located within a month to enquire whether the recommendations of the main Committee regarding the continuance of these mines have been met or not at the spot. In addition it will also enquire whether the pattern contemplated for the working of these mines in the mining plans is being adhered to or not. The Monitoring Committee will also observe whether the working in the Saproon Valley of category :A: mines has had any deleterious effect upon the Saproon Chasma and whether the width of the nallah has been reduced on account of the alleged encroachment by the various petitioners in the present writ petition and further whether the enlargement of the culverts will improve the flow of water from the nallah. The Committee shall also make a note of any other factor which comes to the notice and is considered relevant by it and make a repot to this Court within two weeks of the date of its visit to the area, which shall be made after notice by it to the petitioners and the Collector, Solan as well as respondent No. 6,7,8 and 16(of the four Category :A:
mines), On receipt of the report further directions, if any, shall be made by this Court.
22. The Monitoring Committee shall visit the area periodically at intervals of three months for similar observations and report to this Court for any further action that may be needed.
23. The result is that writ petitions Nos. 598 of 1989, 599 of 1989/600 of 1989 and 601 of 1989 shall stand dismissed while writ petition No. 567 of 1988 shall stand allowed to the extent aforesaid.
24. Costs on parties.