National Green Tribunal
Dilip Dixit vs State Of Rajasthan on 22 September, 2023
Item No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 83/2022(CZ)
Dilip Dixit Applicant(s)
Versus
State of Rajasthan & Ors. Respondent(s)
Date of Completion of Hearing and Reserving of Order : 20.09.2023
Date of Uploading of Order on the Website : 22.09.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. A SENTHIL VEL EXPERT MEMBER
For Applicant(s): Mr. Dilip Dixit
(Applicant in Person).
For Respondent(s) : Mr. Shoeb Hasan Khan, Adv.
Mr. Om Shankar Shrivastava, Adv.
Mr. Deepesh Joshi, Adv.
Mr. Rohit Sharma, Adv.
Mr. Yashwardhan Raghuvanshi, Adv.
ORDER
1. The issue raised in this application is declaration of mining operation carried out by respondent no. 9 as illegal and un authorised and alleged that the activities conducted by respondent no. 9 without obtaining environmental clearance, consent to operate/establishment from the competent authority be stopped with immediate effect and an investigation be setup for taking the other necessary actions.
2. The brief facts giving rise to the present application is that the applicant was granted mining leases being ML No. 46/83/B and ML No. 08/84 near village Odan, Tehsil Nathdwara, District Rajsamand (Rajasthan) but were cancelled by the Government.
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3. The mining lease was cancelled on account of failure to submit environment clearance, approved mining plan and eco-friendly mining plan. The applicant represented before the State Government and the representation was rejected. Again the applicant approached to MoEF&CC but same was rejected. The grievance of the applicant is that the local authorities in district Rajsamand had entered into a MoU for land comprising in erstwhile mining leases of the applicant for construction of Lord Shiva Statue and recreational park with respondent no. 9 who is excavating and using the mineral for use in such works without even payment of royalty dead-rent and other levy to the government.
4. It is alleged that respondent no. 9 is engaged in mining activities without any environmental clearance and the MoU entered into by the Collector and Municipal Board, Nathdwara with respondent No.9 clearly shows that it provides for obtaining government clearance, permission/approval from the competent authorities for the development and running of all components of the projects but respondent No.9 has not obtained any permission like mining lease/licence, environment clearance, consent to operate etc. from the competent authority and in such circumstances, the activities of the respondent No.9 deserves to be stopped forthwith.
5. The matter was taken by this Tribunal on 07.11.2022 and a committee consisting the Collector and Regional Officer, Rajasthan Pollution Control Board was constituted with direction to submit the factual and action taken report.
6. In compliance of the order, the joint committee visited the site and submitted the report which is as follows :-
1. Background
a) The applicant has asked only about Shiva statue. The applicant had held a lease ML number 8/1984 and 46/ 1983 lease for Mining of mineral Soapstone near Village --Oden, Tehsil --
Nathdwara, District --Rajsamand.
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b) Letter of sanction ML-8/1984 was issued from Government of Rajasthan by Order F-2(62) Mines/Group-2/85 Date 11.08.1986. The lease was agreement by Mining Engineer Rajsamand on dated 08-02-1988.
c) Letter of sanction of MI.-46/1983 was issued from Government of Rajasthan by Order F-2(31) Mines/Group-2/84Date 03.04.1984. The lease was agreement by Mining engineer Rajsamand on dated 16-05-1984.
d) The Mining lease 8/1984 was cancelled by order of Government of Rajasthan order no F.5(21) Mines /Group-2/04 on dated 04-03- 2006 due to applicant failed to produce Mining plan, ECO friendly Mining plan and Environment Clearance certificate.
e) The Mining lease 46/1983 (Renewal Lease no 16/2003) was cancelled by Government of Rajasthan order no F 5(112) Mines/Group-2/07 on dated 18-12-2007 due to applicant failed to produce Mining plan, ECO friendly Mining plan and Environment Clearance.
f) Further, an MOU for the above said area had been done between Municipal Board Nathdwara and Mira Developers Limited on dated 17 .04. 2013. And a lease deed also executed between both of them for 99 years to develop amusement park for nonprofit purpose on dated 17.02.2021.
g) Consent to Establish under the Air (Prevention & Control of Pollution) Act, 1981 and the Water (Prevention & Control of Pollution) Act, 1974 was issued to M/s Lord Shiva Statue and Amusement Park from RSPCB vide letter dated 12.11.2020 for Built up area -- 13992.77 Sq. Meter) & Food Court -- 100.0 Seats.
h) Consent to Operate under the Air (Prevention & Control of Pollution) Act, 1981 and the Water (Prevention & Control of Pollution) Act, 1974 was issued M/s Lord Shiva Statue and 3 Amusement Park from RSPCB vide letter dated 12.04.2022 for Built up area -13992.77 Sq. Meter) & Food Court -100.0 Seats.
i) Consent to Establish under the Air (Prevention & Control of Pollution) Act, 1981 and the Water (Prevention & Control of Pollution) Act, 1974 was issued to M/s The Akshaya patra foundation from RSPCB vide letter dated 06.10.2022 for Food Items -500.0 Kg/Day.
j) Mining Engineer, Rajsamand Division-II issued a notice to M/s Miraj Developers Pvt. Ltd., Nathdwara, District -- Rajsamand regarding use of mineral in construction of shiva statue without Environmental Clearance, Mining Plan, Eco-friendly mining plan on dated 24.11.2022.
k) M/s Miraj Developers Limited, Nathdwara submitted reply of above notice on dated 13.12.2022 stating that mineral has not been used in construction of shiva statue.
l) Further, Mining Engineer, Rajsamand Division-II issued a notice to M/s Miraj Developers Pvt. Ltd., Nathdwara, District -- Rajsamand regarding use of mineral in construction of shiva statue on dated 16.12.2022.
m) M/s Miraj Developers Limited, Nathdwara submitted reply of above notice on dated 13.12.2022 stating that mineral has not been used in construction of shiva statue.
2. Joint Committee Inspection: -
The Joint Committee inspected the site on dated 08.12.2022 and observed the following: -
a) At present structures i.e., hotels, parkings, M/s Akshyapatra Foundation's kitchen, Shiva statue and amusement park have been constructed on area mentioned in the matter.
b) No activity of illegal mining was found at the time of inspection.4
3. Conclusions: -
a) M/s Miraj Developers Limited, Nathdwara has not obtained any Short-Term Permit (STP) from Mining Department for construction of shiva statue.
b) M/s Miraj Developers Limited, Nathdwara has failed to submit adequate documents regarding mineral use in construction of shiva statue (i.e., royalty receipts, rawannas etc.) without which assessment of use of mineral in shiva statue construction may not be done.
c) A notice has been issued to M/s Miraj Developers Limited, Nathdwara to produce the source of mineral and detail about royalty payment to the government.
If he fails to submit the document then after detailed civil study(geographical and topographical study) of the mineral used in construction of shiva statue and other surrounding structures will be calculated and penalty as per rules will be recovered.
d) M/s The Akshaya patra foundation has not applied for Consent to Operate the Air (Prevention & Control of Pollution) Act, 1981 and the Water (Prevention & Control of Pollution) Act, 1974. RSPCB has issued show cause notice to M/s the Akshaya patra foundation.
e) RSPCB will conduct a detailed survey of area to know the status of hotels established and operating within the area mentioned in the matter.
7. The respondent has filed preliminary objection with the fact that there are no document to indicate that the alleged illegal mining was conducted by the answering respondent and it is further submitted that the Municipal Board, Nathdwara has entered into a Memorandum Of Understanding with the Answering Respondent for developing, operating and maintaining 5 a recreational park of international standard including erection of "Lord Shiva Statute" of 351 Feet height on the land belonging to Municipal Board, Nathdwara, wherein, the Developer was authorized to constitute a Special Purpose Vehicle (in short "SPV") for the project and thereafter, the Answering Respondent has constituted a Special Purpose Vehicle M/ s. Tatpadam Upavan and the said Special Purpose Vehicle thereafter obtained necessary permissions from all competent authorities and have entered into an agreement with M/s. Shapoorji Pallonji & Company (P) Ltd. and handed over the said work to the said Company i.e. for construction of "Lord Shiva Statute" and allied works in 15.93 Acres of land at Ganesh Tekri, Nathdwara, Rajsamand (Rajasthan) on 05.09.20 15 and the said Company was required to complete the work within 24 months i.e. from 05.09.2015 to 04.09.2017.
8. It is further submitted that the matter in which activities were carried out since 2013 is more than five years and barred by law of limitation.
9. Learned counsel for the respondent Mr. Deepesh Joshi has submitted that the necessary lease document, consent to operate, letter to name change, consent to establish, fire NOC, NOC from Airport Authority, allotment order, memorandum of understanding and incorporation certificate with the copy of the contract document executed has been filed by the respondent which reveals that the every work with regard to the Shiva Statue has been done in accordance with the legal permission granted by the competent authorities.
10. It is further submitted that the agreement which was entered into between the Nagar Palika, Nathdwara on behalf of the Governor of the State with the contractor reveals that every activity which has been done by the public authority are done in accordance with the law and there are no violation as stated by the applicant.
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11. In its reply submitted by the MoEF&CC it is alleged that the environment clearance has issued in provisions of EIA Notification, 2006 after stage 1, 2, 3 & 4 of the screening and the control of illegal mining vests with the State Department of Mines, Geology and punitive actions are being vested with the state authority and Pollution Control Board.
12. Learned counsel for the state and the rest of the respondent have filed the reply and submitted that that illegal excavation of Soapstone and Dolomite rind White chock (Clay) illegal twining activities are being not carried out by respondent no. 9 in this project area since there is construction project and not any mining project and excavation and mineral dispatch are not carried out. According to reply contract of construction work has been given to M/S Shapuji Palji & Company Pvt. Ltd. Company and purchased royalty paid material from nearby areas. Respondent No 9 M/S Miraj Developers Pvt Ltd has obtained CTE & CTO for construction project under Water Act 1974, 1981. From RSPCB, there is no need of Environment Clearance for this construction project since built up area is less than 20000 Sq. Mt. and that ML 46/1983 and ML 08/1984 near village-oden, Teh-Nathdwara, Distt.- Rajsamand, Rajasthan, were sanctioned and executed in favour of applicant and there after notice for compliance of deficiencies issued and on part of lease holder not compliance notice regarding mining lease conditions. Renewal of these leases were refused/dismissed by the competent authority.
13. That a joint committee has been formed to inspect the above mentioned area and after the inspection the joint committee submitted their report that at present, structures i.e. Hotels, Parking, Lord Shiva statue and amusement park have been constructed on area as well as no activity or illegal mining was found at the time of inspection.
14. Learned counsel for the respondent Mr. Deepesh Joshi has further argued that there is no document filed on record to even remotely indicate that 7 the alleged illegal mining is being conducted or was conducted by the Answering Respondent, wherein, "Lord Shiva Statue" is constructed. It is worthwhile to mention here that originally, a Lease Deed was executed between Nagar Palika, Mouja Nathdwara with the Answering Respondent No. 10 on 17.02.2021, wherein, a land forming part of Khasra No. 1288/ 165 admeasuring 5 Beegha, Khasra No. 1419/ 165 admeasuring 1 Beegha 10 Biswa, Khasra No. 1351/ 165 admeasuring l4 Beegha 10 Biswa, Khasra No. 1358/ 165 admeasuring 2 Beegha at Gram Nathuwas, and land situated at Khasra No. 2869 admeasuring 2 Beegha 10 Biswa at Gram Mouja Nathdwara totaling to 25 Beegha & 10 Biswa was given on lease for 99 Years. Subsequent to the aforesaid execution of the lease, the Answering Respondent No. 10 was constituted as a Special Purpose Vehicle (SPV) and necessary permissions were obtained by the Answering Respondent from competent authorities including permission from Rajasthan State Pollution Control Board for constructing a Lord Shiva Statue and an Amusement Park. The said Emissions are already or record. Thereafter, the Respondent entered into a Construction with M/ s. Shapoorji Pallonji & Company (P) Ltd. Constructing Shiva Statue on 05.09.2015 and the said Comply was required to complete the work within 24 months. Thus, against the instant Original Application preferred Answering Respondent No. 10 is not maintainable, as all necessary permissions were obtained by them and the construction is carried out by the said Company.
15. As the instant Original Application is filed on 20.10.2022 alleging the aforesaid alleged environmental violation conducted by the Respondents and it is stated that without obtaining any Environmental Clearance or Approved Mining Plan, some activities are carried out since 2013. Thus, the instant application filed under Section 14,15, l7&18 of the National Green Tribunal Act, 2010 is riot maintainable, as admittedly, the relief 8 claimed is in the nature of declaration and injunction, which ought to have been instituted within 6 months from the date of accrual of cause of action or within 5 years for the claim of compensation from the date of alleged accrual of cause of action on 17.04.2013. The application filed before this Tribunal is filed after 9 years from the date of accrual of alleged cause of action and hence, the same deserves to be dismissed at this threshold.
16. With regard to the allegations contained the filed on record and the report submitted regarding non-payment of royalty, it is submitted that the Old allegations are also incorrect. Infact M/s. Miraj developers Limited (Respondent No.9) hasalready submitted the same authority on 06.02.2023 vide Annexure R-10/ 1 that the royalty for utilizing the minor minerals were paid by the Answering Respondent. Thereafter, a notice was issued by the Mining Engineer on 17.01.2023 questioning the royalty being paid, which was also responded by the said Company and it was intimated to them that a total amount of Rs. 21,88,917/ was duly paid towards the royalty and Raavanya and hence, there is no violation of any Rules done by the Answering Respondent. The Flow Chart in Excel sheet Format confirming the said deposit 06.10.2015 to 13.12.2019.
17. Aforesaid documents and the submissions made hereunder, it would be evident that no violation has been done by the Answering Respondent of utilizing minor minerals for completing the aforesaid project. Hence, the instant Original Application preferred by the Applicant is not maintainable and deserves to be dismissed. Moreover, there is no environmental breach of any of the conditions imposed by the Rajasthan State Pollution Control Board and there is no allegations of my Water or Air Pollution done by the Answering Respondent No.10 or by the contractor M/s. Shapoorji Pallonji 8s Company (P) Ltd. Furthermore, all the due royalties have been paid by the said contractor for bringing the said material on site. 9
18. In view of the above facts and in view of the joint committee report the structure of Shiva Statue and amusement park have already constructed and the joint committee has submitted the report that no activity of illegal mining was found by the members of the committee.
19. The source of mineral and the payment of royalty was in accordance with the rules and the necessary documents have been filed, which are on record and has been examined by the authority concerned. This was in pursuance of the agreement between the municipal corporation and the contractor in which the public authority/Municipal Commissioner was monitoring the project and there is no iota of contents substantiate any illegal mining.
20. It is contended by the learned counsel for the respondent that various complaint/application have been moved before the competent authorities for allotment of mining lease area, which were rejected by the State Government and MoEF&CC and aggrieved by that the applicant moved this application.
21. On the basis of the above averment, the contention, the analysis of the argument advanced and reply submitted the allegations made are not substantiated by any evidence. Thus, original application is not maintainable and devoid of any merit and deserved to be dismissed and accordingly dismissed.
22. The Original Application No. 83/2022 stands disposed of accordingly.
Sheo Kumar Singh, JM Dr. A Senthil Vel, EM 22nd September, 2023 O.A No. 83/2022(CZ) PN 10