Gujarat High Court
Rajukumar Bhagwanbhai Sutaria vs State Of Gujarat & 6 on 6 May, 2015
Author: Jayant Patel
Bench: Jayant Patel, G.B.Shah
C/WPPIL/48/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 48 of 2015
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RAJUKUMAR BHAGWANBHAI SUTARIA
Versus
STATE OF GUJARAT & 6
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Appearance:
MR UTPAL M PANCHAL, ADVOCATE for the Applicant
MR DHAWAN JAYSWAL AGP for the Respondent/s No.1
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 06/05/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) [1] We have heard Mr.Utpal Panchal, learned counsel for the petitioner and Mr.Dhawan Jayswal, learned Assistant Government Pleader for all the respondents which includes the Commissioner of Mining and Geology as well as the Chief Conservator of Forest and the District Collector concerned.
[2] The grievance on the part of the petitioner in the present Public Interest Litigation is that in spite of the area being finalized by the State Government as Eco Sensitive Zone of the Gir Wildlife Sanctuary, the mining activity in the river of Shetrunji is being continued. As per the petitioner, such activities are prohibited activity and if mining is continued over the area which is declared as Eco Sensitive Zone, it Page 1 of 6 C/WPPIL/48/2015 ORDER would adversely affect the forest as well as forest wildlife.
[3] In response to the notice issued by this Court, learned Assistant Government Pleader has brought to the notice of the Court that the affidavit-in-reply has been filed by the Deputy Conservator of Forest as well as Geologist on behalf of respondent No.3. The map is produced on record and as per the said map, the details of the strip of the river Shetrunji and the various leases granted to the respective lease holders are mentioned. Since the aspects of exact demarcation of the area being Eco Sensitive Zone of the strip of Shetrunji river was not clear, the another map which was called for by the Court showing Eco Sensitive Zone of Gir Pania Matiyala Wildlife Sanctuary and the same is produced on record by the learned Assistant Government Pleader. It was submitted by the learned Assistant Government Pleader that as per the requirement of the law after the area is finalized by the State Government to be declared as Eco Sensitive Zone, the proposal is to be forwarded to the Central Government who in turn would finalize the Eco Sensitive Zone and shall also declare accordingly. However, the State Government, after having finalized the map for which the proposal is forwarded to the Central Government, is produced on record. The learned Assistant Government Pleader has further submitted that in the proposal forwarded by the State Government as per the recommendation of the forest department, the mining activity including excavation of sand would not be permitted unless express No Objection Certificate (NOC) is granted by the forest department for grant of lease to a particular person by the mining department. In absence of NOC granted by the forest department, the mining activity should be prohibited.
[4] It was submitted by the learned Assistant Government Pleader, under the instructions of the geologist of the State, who is present in the Court that whenever the applications were made and the Page 2 of 6 C/WPPIL/48/2015 ORDER negative opinion was given by the Forest Department, the mining activities are not permitted and the new leases are not granted. As per the learned Assistant Government Pleader, no new lease is granted in the aforesaid area after 2013-2014 and, therefore, the mining department of the State Government is cooperating the preservation of the Eco Sensitive Zone.
[5] However, regarding the present activity going on of the mining operation by excavation of the sand etc. in the river belt of Shetrunji river, it was submitted that the leases prior to the finalization of the aforesaid area as Eco Sensitive Zone, were granted to about 67 persons and lease period of those persons have, in any case, expired in the year 2013-2014. But those persons whose leases have expired have applied for renewal of the lease. Since the area is to be finalized by the Central Government as Eco Sensitive Zone, their applications are not expressly rejected and in some cases where the applications were rejected they have gone in appeal and those appeals are pending. As per the learned Assistant Government Pleader, the resultant effect is that the applications for renewal of those persons whose lease period has expired have remained pending. As per the provisions of the Mines and Mineral Rules, after expiry of the period of lease, if the application for renewal is made, but not decided, the mining activity may be continued by the lease holder and under these circumstances, those lease holders, about 67 in number, are continuing the activities. A clear statement is made by the learned Assistant Government Pleader, under the instructions of Mr.U. R. Pandya, Forest Department, Gandhinagar, who is present in the Court, that in none of the cases pertaining to the renewal of the applications NOC is granted by the Forest Department.
[6] If NOC is not granted by Forest Department, the mining activity by those persons prima facie deserves to be stopped and prohibited. As observed earlier, it prima faice appears that until NOC is granted Page 3 of 6 C/WPPIL/48/2015 ORDER by the Forest Department, even the Mines and Mineral Department of the State government or District Collector or any competent authority under Mines and Mineral Rules would not be in a position to renew the leases of the persons who have applied for renewal. In any case, the fact remains that the lease period of all such persons have expired. Under these circumstances, it prima facie appears that merely because the renewal applications remained pending or because of the aforesaid creation of the situation of the matter pending before the Central Government for final declaration of the area as Eco Sensitive Zone, the activity of the mining operations should not be continued. If such activity is allowed to be continued, it would run counter to the decision of the State Government itself for declaring the area as Eco Sensitive Zone for preservation of the Gir Pania Matiyala Wildlife Sanctuary. Further if the activities are not prohibited and are allowed to continue on the ground of pendency of the applications for renewal of leases, such may create irreversible situation inasmuch as damage and adverse effect would be created to the forest and the wildlife of the Gir Pania Matiyala Wildlife Sanctuary and it would also frustrate the larger public purpose of the State Government for preservation of the forest and to prohibit certain activities in the Eco Sensitive Zone to the extent that unless the Forest Department is of the opinion that such activity is not creating any such adverse effect on the forest and the wildlife, the same should not be permitted. Under these circumstances, in view of the above we are inclined to pass the following interim order.
(1) The respondents are directed to discontinue all mining operations in the Eco Sensitive Zone already finalized by the State Government, by the person/s whose mining lease has/have already come to an end, irrespective of the fact that whether they have applied for renewal and the decision is taken for rejection of the renewal application or the matter is further carried in appeal resultantly creating a situation of pendency of the application for Page 4 of 6 C/WPPIL/48/2015 ORDER renewal. Unless, the lease is validly in operation, the mining activity in the Eco Sensitive Zone of Gir Pania Matiyala Wildlife Sanctuary shall not be permitted.
(2) If any of the person is having valid lease as on today, but not being pendency of the application for renewal of the lease which has already expired, such mining activity shall be permitted to continue by the concerned department of the State Government.
(3) It will be open to any of the persons having valid lease as on today to approach this Court if in spite of the valid lease, his mining activity is prohibited by the State Officials.
(4) It would also be open to any person to move this Court for modification of the order by producing authenticated copy of the valid lease in operation on the date of making of such application.
It was submitted by the learned Assistant Government Pleader that the present order is already communicated and the same shall be implemented by discontinuing the activity of issuing E-pass and no manual passes shall be issued unless such activity is expressly permitted as per the order of this Court.
It was submitted by the learned Assistant Government Pleader that in order to have better enforcement of the order, the District Superintendent of Police of the concerned area may also be directed to give assistance to the Forest Department as well as Mining Department and he may also instruct to take necessary steps.
[7] Hence, the District Superintendent of Police, Amreli is ordered to be joined as party. The said District Superintendent of Police shall in turn communicate the order to the concerned Police Officers of the concerned Police Stations for enforcement of the order.
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[8] S.O to 18th June 2015 for reporting compliance of the order.
(JAYANT PATEL, J.)
(G.B.SHAH, J.)
vijay
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