Allahabad High Court
Vijay Laxmi Kesarwani vs State Of U.P. And 3 Others on 20 February, 2020
Bench: Bala Krishna Narayana, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 Case :- WRIT - C No. - 4161 of 2020 Petitioner :- Vijay Laxmi Kesarwani Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kalpana Sinha,Mr. Navin Sinha (Sr. Advt.) Counsel for Respondent :- C.S.C.,Mr. Navin Sinha (Senior Adv.) Hon'ble Bala Krishna Narayana,J.
Hon'ble Prakash Padia,J.
Per Hon'ble Prakash Padia, J.
1. Heard Shri Navin Sinha, learned Senior Advocate assisted by Shri Utkarsh Srivastava, Advocate for the petitioner and learned Standing Counsel for State responents.
2. This writ petition has been filed by the petitioner with the following reliefs:-
"a. Issue a writ, order or direction in the nature of certiorari or any other appropriate writ quashing the impugned order dated 09.01.2020 passed by Respondent no. 2 (Annexure No. 1).
b. Issue a writ, order or direction in the nature of mandamus commanding the respondents to provide the requisite ID and password to the petitioner for downloading e-MM 11 form for transportation of silica sand being mined at the mining site in terms of the mining lease dated 28th July 2001.
c. Issue any other writ, order or direction as this Hon'ble Court may deem fit on the basis of justice, equity and good conscience.
d. Award the cost of the writ petition to the petitioner."
3. Facts in brief as contained in the writ petition are that the petitioner was granted a lease on 28.07.2001 for 20 years in respect of silica sand. On 21.06.2008, a supplementary lease was executed by the respondent no. 3 in favour of the petitioner in respect of stone ballast, gitti and moram. The State Government issued a Government Order dated 01.07.2011 providing that the leases granted prior to 14.09.2006 of which lease period has not expired, shall not require any Environment Clearance Certificate from the Ministry of Environment and Forest.
4. Learned counsel for the petitioner has also submitted that the petitioner is giving up his claim with regard to supplementary mining lease granted on 21.06.2008 in respect of stone ballast, gitti and moram.
5. Vide order dated 06.02.2020, the learned Standing Counsel was directed to seek the instructions in the matter.
6. Today when the matter was taken up the instructions received by the learned Standing Counsel was placed before the Court, the same is taken on record.
7. In the aforesaid instructions it is mentioned that the petitioner was granted a mining lease for silica sand on 28.07.2001 for a period of 20 years, i.e., up to 27.07.2021. Subsequently the District Magistrate, Prayagraj/respondent no. 3 vide its letter dated 22.09.2018 granted permission for excavation of gitti and boulder also along with silica sand in respect of Gata No. 10 to 13, 101, 102, 122, 126 to 131, 167, 568, 570 to 572 area 6.06 hectare. It is further stated in the instructions that in the decision given by the Supreme Court in the case of Deepak Kumar and Others vs. State of Haryana and Others reported in (2012) 4 SCC page 629 (SLP No. 19628-19629 of 2009) vide order dated 27.02.2012, it has been held that for the purpose of mining, Environmental Clearance Certificate is necessary. In view of the same, the directions were given by the Director Geology and Mining Directorate, Uttar Pradesh, Khanij Bhawan, Lucknow/respondent no. 2 vide order dated 09.01.2020, (copy of which is appended as Annexure-1 to the writ petition) to the petitioner to obtain Environmental Clearance Certificate to excavate the minerals in respect of the lease in question which was granted in favour of the petitioner on 28.07.2001. The petitioner has challenged the aforesaid order dated 09.01.2020 passed by respondent no. 2 by filing the present writ petition.
8. It is argued by the counsel for the petitioner that the lease deed was executed in favour of the petitioner on 28.07.2001 for a period of 20 years, i.e., up to 27.07.2021. Meanwhile on 14.09.2006 the Ministry of Environment and Forest issued a notification by which certain restrictions and prohibitions were imposed on new projects and activities or on the expansion or modernization of existing projects or activities based on their potential environmental impacts as indicated in the schedule to the notification.
9. In paragraph 13 of the writ petition it is stated that Notification dated 14.09.2006 was to apply only prospectively and not retrospectively. It is argued that applicability of the aforesaid notification came up for adjudication before this Court in the case of Mohd. Kausar Mohd. Kausar Jah vs. Union of India on 29.04.2011 in which it was inter alia held as under:-
"(A) In respect of mining leases whose period expired after coming into force of the notification dated 14.09.2006, as also in respect of new mining leases granted subsequent to 14.09.2006, it is mandatory to obtain environmental clearance under the Notification dated 14.09.2006. Many holders of mining leases from the district Saharanpur have applied for environmental clearance and their applications are pending and as there was some dispute as to whether minor minerals, include sand/silica falling within the definition of mining minerals, we grant time till 30.06.2011 to carry on the mining operations.
(B) The state Government to ensure as on 01.07.2011 that no person anywhere in the State will carry out any mining activity of minor minerals including sand/silica based on the mining leases, which do not have the environmental clearance under the notification of 14.09.2006.
(C) The State to take steps to implement the report of the Committee appointed in Noor Mohammad vs. State of U.P. (supra) pursuant to direction dated 06.03.2009 as referred in para 20 of the judgment and the letter dated Ist June, 2010 from the Ministry of Environment and Forest, Government of India."
10. It is further argued that pursuant to the aforesaid judgment the State Government issued a Government Order dated 01.07.2011 which inter alia provided that for leases whose period was expired after coming into force of the said Notification as also in respect of new mining leases granted subsequent to 14th September 2006, the lessee would have to obtain Environmental Clearance Certificate. The relevant portion of the aforesaid Government Order is reproduced below:-
"mi;qZDr fo"k;d 'kklukns'k la[;k 0183@86, 2011, 127@11 fnukad 29 twu 2011 ds vuqdze esa eq>s ;g Li"V djus dk funsZ'k gqvk gS fd ek0 mPp U;k;ky; esa fo"k;xr fu.kZ; fnukad 29.4.2001 ds }kjk ,sls [kuu iVVs ftudh vof/k vf/klwpuk fnukad 14.9.2006 ds izHkkx esa vkus ds mijkUr lekIr gq;h gS rFkk ,sls u;s [kuu iVVS tks vf/klwpuk fnukad 14.9.2006 ds izHkkxox esa vkus ds mijkUr gq;s gSa] muds fy, mDr vf/klwpuk ds izkfo/kkuksa ds v/khu Ik;kZoj.k LoPNrk izek.k i= dh vko';drk gSA blls Li"V gS fd fn0 14.9.2006 ds iwoZ Lohd`r ,sls [kuu dh ftudh vof/k vHkh lekIr ugha gqbZ gSA mu ij viuh iwoZ vof/k rFkk [kuu lafdz;k;sa ;Fkkor pyrh jgsxhA"
11. In view of the matter, it is argued that the mining lease which was granted in favour of the petitioner on 28.07.2001, the Government Order in question will not apply. It is further argued that the petitioner is not liable to obtain any Environmental Clearance Certificate. It is further argued that a Public Interest Litigation (PIL) No. 33728 of 2013 (Om Dutta Singh, Ex-General Secretary, PUCL U.P./respondent no. 3, District Magistrate, Prayagraj vs. State of U.P. & Others) filed before this Court inter alia seeking investigation into alleged irregularities in mining in Bara Tehsil. During the proceedings in the aforesaid PIL the petitioner was impleaded as a party (Respondent No.8). In the aforesaid PIL a counter affidavit was filed on behalf of State in which was categorically stated that:-
"a. the mining lease dated 28.07.2001 executed in favour of the petitioner was valid and subsisting; and b. the Petitioner's mining lease dated 28.07.2001 did not require any environmental clearance and would be liable to obtain environmental clearance only upon expiry of its period of lease."
12. On 11.07.2017 a Notification was issued by the State Government in which it is notified that instead of manual MM-11 form for transportation of minerals, e-MM-11 form would be generated electronically. It is stated that the aforesaid notification only provided for the manner in which e-MM-11 form would have be generated after feeding the requisite information on the online portal. The aforesaid notification did not provide anything about requirement of any Environmental Clearance Certificate. After issuance of the aforesaid Notification dated 11.07.2017 proceedings for creation of ID and password of the various mining lease holders were initiated. Pursuant to the same the necessary informations were duly provided by the petitioner to the authority concerned.
13. It is argued that inspite of the fact that the necessary informations were duly provided, no ID and password for generation of e-MM-11 form was communicated to the petitioner. In this view of the matter, a representation was made by the petitioner on 07.12.2017 before respondent no. 4 namely Senior Mining Officer, District Prayagraj. On the said representation a detailed report was submitted by the respondent no. 3 but inspite of the same, necessary orders were not passed for the issuance of e-MM-11 form. Since no action was taken in the matter, the petitioner submitted another application before respondent no. 2 with a request that necessary ID and Password be provided to the petitioner for downloading e-MM-11 form for the transportation of silica sand.
14. On 09.09.2019 when the petitioner visited the office of Respondent no. 4, she was informed that a letter dated 25.10.2018 has been addressed by the office of respondent no. 2 to the respondent no. 3 in terms whereof it was communicated that the case of the petitioner be considered only after necessary Environmental Clearance Certificate is obtained by him.
15. Aggrieved against the aforesaid letter dated 25.10.2018 petitioner filed a writ petition before this Court being Writ C No. 32337 of 2019. The aforesaid writ petition was finally disposed of by the Another Co-ordinate Bench of this Court vide order dated 05.11.2019. By the aforesaid order the respondent no. 2 was directed to consider the claim of the petitioner with regard to issuance of e-MM-11 form keeping in mind the Government Order dated 01.07.2011. Pursuant to the same the order impugned dated 09.01.2020 was passed by the respondent no. 2 which is under challenged in the present writ petition.
16. Heard learned counsel for the parties. With the consent of counsel for the parties, the writ petition is disposed of finally.
17. From perusal of the same it is clear that the petitioner was granted mining lease for a period of 20 years on 28.07.2001. At the relevant time there was no provision in law to obtain Environmental Clearance Certificate. The aforesaid lease was granted only in respect of silica sand. Subsequently the respondent no. 3 granted permission to the petitioner vide letter dated 22.09.2018 to excavate gitti and boulder also in respect of certain gata numbers, a reference of which has already been made above. The question for consideration before the Court is that whether any Environmental Clearance Certificate is necessary for the Mining Lease Holders in respect of which mining lease was granted before the Government Order dated 14.09.2006 was issued or not?
18. It is clear from the facts as narrated above and specially in the view of the Government Order dated 14.09.2006 that the requirement of Environmental Clearance Certificate is necessary only in the cases where the lease was granted or after the issuance of the Government Order in question namely 14.09.2006. In the present case mining lease was granted in favour of the petitioner on 28.07.2001.
19. In view of the aforesaid, we are of the view that since the notification dated 14.09.2006 was not retrospective, petitioner is not liable to obtain any Environmental Clearance Certificate for the excavation of silica sand. In view of the same the order dated 09.01.2020 passed by the respondent no. 2, (copy of which is appended as Annexure-1 to the writ petition) is liable to be quashed and the same is hereby quashed. The petitioner is entitled for mining of silica sand only pursuant to the lease deed granted in her favour on 28.07.2001.
20. A mandamus is issued to the State Government to provide requisite ID and Password to the petitioner for downloading e-MM-11 form for transportation of silica sand only in terms of the mining lease deed dated 28.07.2001.
21. It is made clear that the petitioner will do the mining work only in respect of silica sand and not in respect of Gitti and Boulder, in respect of which the permission was granted in her favour by the respondent no. 3 on 22.09.2018.
22. With the aforesaid observations, the writ petition is disposed of finally.
Order Date :- 20.2.2020 Swati