Gujarat High Court
Paryavaran Bachav Samity Thro The ... vs State Of Gujarat Thro The Secretary ... on 30 March, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Anant S. Dave
C/WPPIL/136/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 136 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE ANANT S. DAVE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PARYAVARAN BACHAV SAMITY THRO THE PRESIDENT....Applicant(s)
Versus
STATE OF GUJARAT THRO THE SECRETARY (IMD) & 12....Opponent(s)
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Appearance:
MR NM KAPADIA, ADVOCATE for the Applicant(s) No. 1
MS MANISHA L SHAH Government Pleader with MR DHARMESH DEVNANI
AGP for the Opponent(s) No. 1 , 4 - 8 , 11 - 12
MR PC KAVINA Senior Advocate with MR MAHANSHI PATEL for HL PATEL
ADVOCATES, ADVOCATE for the Opponent(s) No. 13
MR BIREN A VAISHNAV, ADVOCATE for the Opponent(s) No. 2
MR SS ACHARYA, ADVOCATE for the Opponent(s) No. 9
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HC-NIC Page 1 of 15 Created On Fri Apr 01 01:12:31 IST 2016
C/WPPIL/136/2011 CAV JUDGMENT
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 30/03/2016
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE ANANT S. DAVE) 1 This Writ Petition [Public Interest Litigation] is filed under Article 226 of the Constitution of India by the petitioner - Paryavaran Bachav Samity, a charitable trust registered under Bombay Public Trust Act and also under the Gujarat Cooperative Societies Act, 1961. The main object of the Trust, as per the constitution of the Trust, is to create awareness about environment and to take steps and undertake activities for maintenance of the environment. In this writ petition, rights of local citizens of villages Rampara, Bhetali, Kukaras and Anandpara are sought to be protected as the respondent No.13 Gujarat Ambuja Cement Co. Ltd. has grossly violated the terms and conditions of the lease granted by the State Government for mining purpose. It is the case of the petitioner that due to illegal mining of limestone and other minerals by respondent No.13 a few hundred crores of value of mineral was excavated in collusion Page 2 of 15 HC-NIC Page 2 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT with officers of Department of Revenue, Collector, Geology and Mining, etc. and also committed breach of various provisions of State and Central Act viz. Gujarat Panchayat Act, Environment Protection Act, Water [Prevention and Control of Pollution] Act, 1974, Mines, and Minerals [Regulation and Development] Act, 1957 and Rules made thereunder.
2 Mr. N.M.Kapadia, learned counsel for the petitioner, has taken this court through various averments made in this petition and submitted that it is necessary for the Government agency to file criminal case under Sections 378 to 380 of the Indian Penal Code and further upon representations made by the petitioner, competent authority of Department of Geology and Mining, State of Gujarat issued notice to respondent No.13 for recovery of Rs.4,95,81,840/. It is further submitted that the above measure is not adequate, and therefore, this Court may appoint SubCommittee to examine the extent of damage caused by the company to agriculturists and environment and matter should be referred to concerned Collector and Gujarat Pollution Control Board and appropriate order in this regard may be passed accordingly.
2.1 It is further submitted that since the Page 3 of 15 HC-NIC Page 3 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT issue is taken up by the President of the petitioner - Trust, the main trustee of the trust has received various threats from the officers of the company. It is further submitted that though there is blatant breach of various provisions of the Acts and Rules, as stated earlier, and excavation of mineral was illegally carried out by respondent No.13 and even respondent No.13 encroached upon the gaucher land, no action is taken by the authorities of Government, and therefore, intervention of this Court is solicited in this Public Interest Litigation.
2.2 Inter alia, it is submitted that mining lease is granted to the company for lime stone and other minerals for a period of 30 years upon conditions to pay royalty, surface rent, water rate, cess, etc. under the provisions of Mines and Minerals [Regulation and Development] Act, 1957 and Rules made thereunder. However, if any illegal activity is noticed or surfaced on record with regard to mining activities, the District collector and Geologist are to be directed to take immediate action in accordance with law. Learned counsel has given certain instances about breach of conditions of lease by respondent No.13 company and prayed to grant reliefs as prayed in this petition.
Page 4 of 15HC-NIC Page 4 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT 3 Upon issuance of notice, respondent - Government authorities and respondent No.13 have filed replies, wherein the allegations levelled by the petitioner are denied and it is submitted that issue of illegal excavation of mineral is already settled and the company has compounded the matter by paying Rs.4,95,81,840/ in the year 2009 and the compromise was entered into with the Government which is legal and valid. The respondent No.13 has also doubted motive and intention of the petitioner that just to harass and threaten the respondent with a view to receive reward @10% of the recovery amount as stated in his notice, the petitioner has filed this petition. It is further submitted that no mining activity is carried out after 2008, however, with regard to appointment of any committee for verification, it was left to the discretion of this court to issue any direction, as may be deemed fit and proper.
4 That rejoinder and surrejoinder affidavits are filed by the parties and according to learned counsel for the respondent No.13 company, mining plan was submitted to concerned authority and was approved by Indian Bureau of Mines. Ultimately, all mining activities have been stopped from 14.08.2008 after exhausting minerals and the said closure plan was approved Page 5 of 15 HC-NIC Page 5 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT by the authority and that the company has surrendered the mining lease as per Rule 29 of the MCR, 1960. That various sites were visited and closure was approved and now no direction is necessary and the petition may be disposed of.
5 From the record of the case, it appears that the respondent Government authorities have also filed affidavit in reply about following procedure at the time of grant of lease, recovery of dues from respondent No.13 company for the alleged breach of conditions of lease and taking action in accordance with law and as per directions issued by this Court from time to time.
6 Having heard learned counsels for the parties at length and taking into consideration nature of PIL and to avoid repetition of facts, it is imperative to produce earlier order dated 04.09.2014 passed by Division Bench of this Court, which reads as under:
"The petitioner has filed this public interest litigation alleging serious breaches by the respondent No.13 Company. The said Company was granted mining lease of village Rampara, Taluka Veraval, Dist:
Junagadh. The petitioners case is that the said Company carried out illegal mining operations in the areas not leased by the Page 6 of 15 HC-NIC Page 6 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT Government and thereby committed theft of public property. A written complaint was made by the petitioner to the Geologist, Junagadh on 28.3.2008 contending that the Company had carried out illegal mining on private as well as Government lands outside the leased area. Yet another application came to be made to the District Collector, Junagadh on 19.12.2008 making similar allegations. Along with the application made to the Collector, the petitioner gave a list of survey numbers and the names of the owners of such lands in which, according to the petitioner, the Company had carried out illegal mining.
The case of the petitioner is that upon the petitioner's complaints, inquiries were initiated by the authorities in which it was found that the said Company had in fact indulged in illegal mining and for which purpose, the Company was fined to the tune of Rs.4.95 crores (rounded off). According to the petitioner, the inquires were incomplete. The authorities located only three survey numbers where such illegal mining was noticed omitting several other survey numbers from the inquiry. According to the counsel for the petitioner, if all the survey numbers were inspected by the authorities, a much bigger mining theft operations could have been unearthed.
Neither the learned Government Pleader nor the respondent No.13 Company could bring to our notice any material to suggest that the said authorities carried out inspection of the entire area with special focus on the survey numbers mentioned in the list annexed with the letter of the petitioner addressed to the Collector dated 19.12.2008 along with which he had Page 7 of 15 HC-NIC Page 7 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT given a full list of survey numbers in which according to the petitioner, the respondent No.13 had carried out illegal mining. The affidavit of one Shri S.D.Kapse, Incharge, Additional Director (Flying Squad), Commissioner, Geology and Mining, dated 7th January 2013 refers to the inspections at the site by a team of Gujarat Mining Research and Development Society on 24.9.09, 25.9.09 and 26.9.09 under the instructions of the Commissioner of Geology and Mining. The Team submitted a report suggesting illegal mining. When served with the report, the Company responded and confessed the mining being carried out beyond the leased area. A penalty of Rs.4.95 crores (rounded off) was imposed. The affidavit further discloses that illegal excavation was noticed in survey No.75, 169 and 84 which was adjacent to areas leased to the Company.
Neither this affidavit nor any other document brought to our notice clarifies whether full inspection of the entire area and in particular the survey numbers mentioned by the petitioner in the annexure to the letter to the Collector dated 19.12.2008 was carried out.
We are conscious that further inquiry and investigation should not be ordered for a fishing inquiry. We are also conscious that the mining operations have stopped since the year 2008. However, we cannot lose sight of a few factors. First, the petitioner had been the first one to bring to the notice of the authorities the alleged irregularities in mining by the respondent No.13 Company. This was way back in the year 2008. The present public Page 8 of 15 HC-NIC Page 8 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT interest litigation was filed in the year 2011. The Government authorities did find some substance in the allegations of the petitioner and that the Company was asked to pay penalty of Rs.4.95 crores (rounded off) for the excess mining. Lastly, as noted earlier, there is no clarity that the State team covered the entire area and inspected all survey numbers where the petitioner had complained of illegal mining by the respondent No.13.
Under the circumstances, we direct the Director of Geology and Mining to form a Team comprising of a Geologist and such other officers as may be found necessary to carry out inspection of the entire area with special focus on the survey numbers in which according to the petitioner illegal mining was carried out by the respondent No.13. It would be open for the petitioner as well as an authorized representative of the respondent No.13 Company to remain present when such inspection being taken. The Team shall submit a report before the next date of hearing. The petitioner shall deposit a sum of Rs.1 lac before this Court latest by 15th September 2014, which if the allegations are not found to be true may be appropriated towards costs.
S.O. to 9th October 2014".
[emphasis supplied] 6.1 In compliance to the above order, a team was constituted and a report was submitted by the Geologist which was perused by the Court and to seek further clarification, following order dated Page 9 of 15 HC-NIC Page 9 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT 03.12.2015 was passed:
"We have considered the report submitted by the Geologist in response to the order dated 4.9.2014 passed by this Court. However, from the said report, it is not clear as to over which survey number, illegal mining by respondent no.13company had taken place, which is not a part of illegal mining already considered and for which the fine has been imposed earlier. Had the sketch already on record at page 685 considered by the Geologist and fresh sketch was prepared including the site which is already shown in the sketch at page 685, possibly the position could have been more apparent or clear.
Hence, it is directed that the respondent no.11 shall ensure that a sketch is prepared by the DILR with concerned Geologist of the land for which the lease was granted and the adjacent area for which the reference is made of various lands on page no.57 of the compilation. While preparing the sketch, following aspects shall be specifically shown:
1] The area for which the lease was granted to respondent no.13company.
2] The area for which illegal mining was made by respondent no.13company and for which the fine is already imposed of Rs.4.95 crores.
3] The area, if any, over which the illegal mining was made by respondent no.13company but not covered in the earlier item no.2.
4] If there was/is the additional area of Page 10 of 15 HC-NIC Page 10 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT illegal mining by respondent no.13company than already considered at the time when the fine of Rs.4.95 crores was imposed, the approximate quantity of the illegal excavation shall also be specified as per the opinion of the Geologist after taking necessary measurement of the depth of the pits etc. 5] While preparing sketch, the sketch already prepared and copy whereof is produced at page no.685 dated 4.3.2011 shall also be considered so that it may be easy for the Court to compare and find out the controversy raised in the present petition.
Let the aforesaid exercise be completed within two weeks i.e. on or before 18.12.2015. S.O. to 22.12.2015".
6.2 Pursuant to the above, further affidavit is filed on 21.12.2015 by the Geologist, Office of the Geology and Mining, District GirSomnath by reporting compliance and relevant portion of the above affidavit reads as under:
"I, Tarunkumar Jayantilal Patel, Male, age : 54 years, Geologist, Office of the Geology and Mining, District Gir - Somnath, filing this reply has I am conversant with the fats and circumstances of the case as under:
1 It is respectfully submitted that the present reply is filed pursuant to the direction contained in the order dated 03.12.2015 passed by this Hon'ble Court. A Page 11 of 15 HC-NIC Page 11 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT copy of the order dated 03.12.2015 is annexed herewith and marked as ANNEXURER
1. 2 It is respectfully submitted that this Hon'ble Court was pleased to direct that a fresh map / sketch be prepared on the following aspect:
1] The area for which the lease was granted to respondent no.13 - company.
2] The area for which illegal mining was made by respondent no.13 - company and for which the fine is already imposed of Rs.4.95 crores.
3] The area, if any, over which the illegal mining was made by respondent no.13 - company but not covered in the earlier item no.2.
4] If there was/is the additional area of illegal mining by respondent no.13 - company than already considered at the time when the fine of Rs.4.95 crores was imposed, the approximate quantity of the illegal excavation shall also be specified as per the opinion of the Geologist after taking necessary measurement of the depth of the pits etc. 5] While preparing sketch, the sketch already prepared and copy whereof is produced at page no.685 dated 4.3.2011 shall also be considered so that it may be easy for the Court to compare and find out the controversy raised in the present petition.
3 It is respectfully submitted that so far as survey no.84, survey no.75 the Page 12 of 15 HC-NIC Page 12 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT company had carried out illegal mining for which the fine was already imposed. The same are indicated in red colour in the map annexed to this reply. A copy of the map / sketch as directed by the Hon'ble Court is annexed herewith and marketed as ANNEXURERII.
4 It is respectfully submitted that on examining survey numbers at the relevant point of time no mining was found to be carried out by the company other than for which the fine was imposed. Even today, it appears that no mining was carried out in other survey numbers, except what is stated below.
5 It is respectfully submitted that pursuant to the other direction on physical examination, it was found that some portion of survey no.87 paiki shown in yellow colour some pits are found.
However,r the depths of the said pits are ½ to 1 meter. It appears that some illegal mining was carried out by the locals. However, the pattern of the mining is not similar to that of the company. The aforesaid details are placed on record pursuant to the direction of this Hon'ble Court vide order dated 03.12.2015".
6.3 Therefore, by the above affidavit, and a careful perusal of reports and sketches / maps, etc. we find in addition to the fact that fine of Rs.4.95 crores was imposed and recovered from respondent No.13 company, no further mining activity is now carried out and a detailed map prepared by Geologist, GirSomnath is placed on Page 13 of 15 HC-NIC Page 13 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT record. According to this map, some portion of land bearing survey No.87 paiki shown in yellow colour some pits are found, but the depth of the said pits is 1/2 to 1 meter and it appears that illegal mining was carried out by the locals and the pattern of the mining is not similar to that of the company. With regard to survey Nos. 84, 169 and 75 fine was already imposed and upon recovery of fine of Rs.4.95 crores from the company, a closure report of mining qua the disputed subject land of mining lease was accepted and approved by the competent authority, no further direction is necessary, at this stage.
6.4 With the aforesaid, we close this Public Interest Litigation, at this stage. However, it will be open for the petitioner to approach the District Collector and/or Director, Geology and Mining, State of Gujarat for any of the grievances with regard to subject writ petition and further if any illegality or irregularity qua mining activities on the subject lease land is carried out by the respondent No.13 in spite of closure report approved and accepted by the competent authority.
7 As observed by this Court in order dated 04.09.2014 that the petitioner had been the first one to bring to the notice of the authorities the Page 14 of 15 HC-NIC Page 14 of 15 Created On Fri Apr 01 01:12:31 IST 2016 C/WPPIL/136/2011 CAV JUDGMENT alleged irregularities of mining by respondent No.13 company, way back in the year 2008, and subsequently upon finding substance in the allegations of the petitioner, the Government authorities could recover penalty of Rs.4.95 crores from respondent No.13, we are inclined to award costs of this petition and the respondent No.13 is directed to pay Rs.25,000/ as costs to the petitioner Paryavaran Bachav Samity with a period of four weeks from today.
Notice discharged.
8 Pursuant to order dated 04.09.2014 passed by this Court, the petitioner has deposited Rs.1,00,000/ with the Registry of this Court and the same shall be returned to the petitioner upon proper verification and endorsement by learned advocate for the petitioner.
(R. SUBHASH REDDY, CJ) (ANANT S.DAVE, J.) pvv Page 15 of 15 HC-NIC Page 15 of 15 Created On Fri Apr 01 01:12:31 IST 2016