Gujarat High Court
Shree Digvijay Cement vs State Of Gujarat on 7 September, 2018
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/21461/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21461 of 2016
With
CIVIL APPLICATION NO. 1 of 2017
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SHREE DIGVIJAY CEMENT
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SENIOR COUNSEL with MR DIGANT M POPAT(5385)
for PETITIONERS
MR ROHAN YAGNIK, ASSISTANT GOVERNMENT PLEADER(1) for
RESPONDENT Nos. 1,2,3
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 4
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 07/09/2018
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)
1. This Special Civil Application is filed under Article 226 of the Constitution of India, by seeking the following prayers:
(a) This Hon'ble Court be pleased to quash and set aside Impugned Order dated 1.6.2013 passed by the Respondent no.2 and annexed at Annexure-H hereto; and
(b) This Hon'ble Court be pleased to pending admission and final hearing of this petition stay the operation and implementation of the Impugned Order dated 1.6.2013 passed by the Respondent no.2 and annexed at Annexure-H hereto; and Quash and set aside Remark (b) in Sl. No.1 in the Table in paragraph 4 of the Notification being S.O. No. 1365(E) dated 28 April 2017 issued by the Ministry of Environment, Forest and Climate change which read as, "The mining operations shall be carried out in accordance with the order of the Hon'ble Supreme Court dated the 04 August, 2006 in the matter of T.N. Godavarman Thirumulpad Vs. UOI in W.P. (C) Page 1 of 7 C/SCA/21461/2016 ORDER No. 202 of 1995 and dated the 21 April, 2014 in the matter of Goa Foundation Vs. Union of India in W.P. (C) No.435 of 2012.
2. The 1st petitioner is a Company, incorporated under the provisions of the Indian Companies Act, 1913, and is engaged in the business of manufacturing the cement. The 1st petitioner is having its manufacturing unit at Digvijaygram of District-Jamnagar in the Saurashtra region of Gujarat. It is stated in the petition that, said Company was incorporated as early as on 6th November, 1944 and started production in the year 1949. Limestone is a major raw material to manufacture cement. There are existing leases of limestone in different mines in favour of the petitioner Company. Particulars of mines, which are under lease with survey number and area in hectare in the grant order, are given in a tabular form, as mentioned below.
Sr. Mine Survey Area in Grant Order Ref. No. &
No. No. Hectare Date
1 Pachhtar 225 52.6 MCR-1581(D-82) GOI-15
Limestone Mine. Chh 18.06.1983
2 Pachhtar 225 32.38 MCR-1582(D-100) GOI-
Limestone Mine. 145 Chh 18.07.1983
3 Pachhtar 225 16 MCR-1579 (D-30) 4107
Limestone Mine. Chh 01.06.1983
4 Chorbedi 1 1 178 MCR-1579(D-30) 4107
Limestone Mine Chh 01.06.1983
5 Chorbedi 2 1 20.23 MCR-1582(D-111) 3104
Limestone Mine Chh 18.06.1983
6 Gop 1 50/17 218.53 MCR-1577(D-56) 6858
Limestone Mine Chh 05.10.1978
7 Gop 2 50 58.68 MCR-1585 (D-101) 4813
Limestone Mine Chh 17.06.1997
Total Area 576.42
Page 2 of 7
C/SCA/21461/2016 ORDER
2.1 It is the case of the petitioners that, though leases are
extended up to 31st March, 2030, in terms of section 8A(4) of the Mines & Mineral Development Act, 1957, the activity of mining in the mine, which is near Barda Wildlife Sanctuary, has come to halt, in view of the order dated 1.6.2013 passed by the respondent authorities, by which the 1st petitioner Company has been directed not to operate its mining lease, in view of the order in Civil Application No. 3858 of 2013 in WP (PIL) No. 114 of 2012 dated 25.4.2013 passed by this Court. The order of this Court dated 25.4.2013 passed in Civil Application No. 3858 of 2013 in WP (PIL) No. 114 of 2012 reads as under:
As prayed by Ms Desai appearing on behalf of the State- respondent, time to file affidavit is extended till next date. In the affidavit, Ms Desai's client will not only deal with the allegation contained in the main PIL application, but also the averments made in this civil application.
After hearing the learned counsel for the parties and after going through the materials on record, we pass an interim order to this extent that the State-respondent will see that no mining activity is carried on within the safety zone of 1 km. from the boundary of Balaram Ambaji Wildlife Sanctuary until further order. Let the matter appear on May 3, 2013.
2.3 Subsequently, said order is reviewed by order dated 20 th June, 2014 in Misc. Civil Application (For Review) No. 1383 of 2013, a copy Page 3 of 7 C/SCA/21461/2016 ORDER of the said order is placed on record at page 245 of the paper book.
Paragraphs-15,16 and 17 of the said order read as under:
15. From the ultimate decision arrived at in the above case, it is clear that the Supreme Court did not lay down any law that the aforesaid decision of 2006 is a pronouncement of law but in the facts of the case of Goa Foundation, decided to apply the same. Moreover, in the present cases, we are not concerned with the expired mining lease, but is one of subsisting mining lease.
16. We, therefore, find that the said decision cannot be said to be a law laid down by the Supreme Court in order to bind as a general rule in respect of all sanctuaries.
17. On consideration of the above contentions, we find that there is no illegality in our order dated 24th June 2013 passed in Civil applications No. 6181 of 2013, 6184 of 2013 and 6189 of 2013 thereby interpreting our order dated 25th April 2013 passed in Civil Application No. 3858 of 2013 indicating that the restriction of mining can be implemented only from the boundary of the reserved forest either declared under section 26A or deemed declaration of sanctuary within the meaning of section 66(4) of the Act. We make it clear that our observations herein being made while dealing with interim order, it is needless to mention, are tentative for the purpose of disposal of the interim order and will not binding upon the parties at the time of final disposal of the public interest litigation. These Civil Applications are devoid of any substance, and are dismissed accordingly. No costs.
3. We have heard learned Senior Counsel Shri Shalin Mehta, appearing with Shri Digant M. Popat, counsel for the petitioners and learned Assistant Government Pleader Shri Rohan Yagnik, appearing for respondent nos. 1, 2 and 3.
4. Mainly it is contended by Shri Shalin Mehta, learned Senior Counsel, appearing for the petitioners that, subsequent to passing of the order by this Court, the Government of India through Ministry of Environment, Forest & Climate Change, vide Notification dated Page 4 of 7 C/SCA/21461/2016 ORDER 28th April, 2017, has notified the eco-sensitive zone around the boundary of Barda Wildlife Sanctuary, in exercise of powers under sub-section (3) of section 3 of the Environment Protection Act, 1986 read with sub-rule (3) of Rule 5 of the Environment Protection Rules, 1986. It is submitted that, the area, which is leased to the petitioner Company near Barda Wildlife Sanctuary is outside the eco-sensitive zone, notified as per the co-ordinates, as such, the order impugned is required to be modified. Further, it is submitted that, the impugned order dated 1.6.2013 is passed, based on the earlier order passed by this Court dated 25.4.2013 in Civil Application No. 3858 of 2013 in WP (PIL) No. 114 of 2012. It is the case of the petitioners that, in spite of the order dated 20th June, 2014 passed in Misc. Civil Application (For Review) No. 1383 of 2013 and also having regard to the notification issued by the Ministry of Environment, Forest & Climate Change, notifying the eco-sensitive zone, it is obligatory on the part of the respondents herein to review their earlier order, but no such review is undertaken. As much as the leased area is outside the eco-sensitive zone, there is no reason for stopping the mining of the petitioner-Company, in spite of valid existing lease.
5. As much as no specific reply affidavit is filed on the said allegation made by the petitioner Company, this Court, by order dated 9.5.2018, directed the respondent authorities to file affidavit in reply. In compliance of the order dated 9.5.2018, the Deputy Conservator of Forests, Porbandar Forest Division, has filed affidavit, Page 5 of 7 C/SCA/21461/2016 ORDER which was affirmed on 18th July, 2018. Paragraphs 1, 2 and 3 of the affidavit read as under:
1. I respectfully say and submit that I have gone through the record of the captioned application and thus, I am conversant with the facts and circumstances leading to the filing of captioned application. I respectfully say that, I am making the present affidavit setting out certain factual aspects.
2. I say and submit that the present Affidavit is filed in compliance of order dated 09.05.2018. This Hon'ble Court was pleased to direct the respondents to verify the status of leased area as per the notification dated 28.04.2017.
3. It is respectfully submitted that a copy of Maps prepared jointly by the Porbandar Forest Division and Bhaskaracharya Institute for Space Applications and Geo-informatics, Department of Science and Technology, Government of Gujarat indicating the Eco-sensitive Zone, Barda Sanctuary and the lease area is annexed hereto and marked as Annexure-R1 (Colly).
5.1 Along with the affidavit, a map was also filed, showing the distance of the leased area from Barda Wildlife Sanctuary. As it was not clear from the said map to assess the distance, which is prepared based on the co-ordinates, this Court directed the respondents to file further affidavit on the allegation of the petitioners. In view of the same, further additional affidavit is filed by the Deputy Conservator of Forests, Porbandar Forest Division, which was sworn on 1st September, 2018. Paragraph-5 of the said affidavit reads as under:
5. I am filing this present additional affidavit in reply in addition to the earlier affidavit filed on behalf of the respondent authority this Hon'ble Court vide its Order dated 09.05.2018 directed the respondent to clarify with regard to the lease area of petitioners whether it falls within the Eco.
Sensitive Zone area as per the survey undertaken by the Porbandar Forest Division Bhaskaracharya Institute for Application and Geo-informatics, Department of Science and Page 6 of 7 C/SCA/21461/2016 ORDER Technology, the lease land of the petitioners falls out set (sic) the boundary of Eco. Sensitive Zone has declared by the Government of India vide its notification dated 28.04.2017.
6. As much as the impugned order dated 1.6.2013 is passed, based on the earlier interim orders passed by this Court and further WP (PIL) No. 114 of 2013 itself is dismissed by order dated 4th December, 2014, and further in view of the final notification issued by the Ministry of Environment, Forest and Climate Change, Government of India, dated 28.4.2017, notifying the eco-sensitive zone of Barda Wildlife Sanctuary, we are of the view that it is a fit case for reconsideration by the respondent authorities and to take a fresh decision.
7. Accordingly, this petition is disposed of with a direction to the respondents to reconsider the matter and pass appropriate fresh orders in the light of the notification dated 28.4.2017, issued by Ministry of Environment, Forest and Climate Change, Government of India, within a period of 4 weeks from the date of receipt of this order. If any clarification is required, it is open to the respondent authorities to address the petitioners. Consequently, Civil Application No.1 of 2017 stands disposed of.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) A.M. PIRZADA Page 7 of 7