Himachal Pradesh High Court
CWP/3975/2019 on 6 November, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
CWP No.3975/2019 .
06.11.2020 Present: Mr. Dushyant Dadwal, Advocate, for the petitioner.
Mr. Ashok Sharma, Advocate General with Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Additional Advocate Generals, Ms. Seema Sharma, Mr. Bhupinder Thakur & Mr. Yudhvir Thakur, Deputy Advocate Generals, for respondent No.2/State.
Mr. Shashi Shirshoo, CGC, for respondent No.8.
(Through video conferencing) Learned Central Government Counsel states that the copy of petition has not been supplied. Learned counsel for the petitioner undertakes to supply the same during the course of the day. Reply be filed within a period of four weeks.
2. On 4.12.2019, this Court has passed the following order: "Notice. Mr. Himanshu Mishra, learned Additional Advocate General, appears and accepts service of notice on behalf of the respondents/ State.
The writ petition and the documents annexed thereto disclose a sorrow state of affairs. If not shocking, it is painful to point out that despite intervention of this Court, on number of occasions, by way of various judicial pronouncements, against illegal and unscientific mining in the entire State, including in Lohara Khud, Kansa Khud and Suketi Khud falling under Gram Panchayats, Lohara, Dhabban and Municipal Council, Balh at Ner Chowk, the respondents/State has failed to check the illegal mining and restore the natural flow and glory of the three rivulets hereinabove. The photographs annexed to the writ petition, clearly demonstrate that the base of these Khuds has been converted into pits and thereby its natural flow obstructed.
Heaps of debris and minerals extracted therefrom can also be seen there. Whether, such mining activities in this area are being carried out as per the law established, norms and ::: Downloaded on - 06/11/2020 20:29:45 :::HCHP guidelines framed, or not is a question, which needs adjudication in the present case.
It is in this backdrop, we direct respondents No.5 to 7 .
through respondents No.1 to 4 to conduct inspection of the three Khuds i.e. Lohara, Kansa and Suketi from the place(s) the same originates till their merge i.e. Lohara and Kansa Khuds at Kansa and thereafter in Suketi Khud and ultimately in River Beas at Mandi town. The Officers of Mining/Industry Department, Irrigation and Public Health Department, Revenue Department and Forest Department shall also be associated in the inspection to be so conducted. Additionally, the Pradhans of Gram Panchayat Lohara, Dhaban and President Municipal Council, Ner Chowk shall also remain present on the spot during the inspection of the area of these Khuds falling in their respective Gram Panchayats. The inspection team so constituted to find out the extraction of mines and minerals if any unauthorizedly, any loss caused due to unscientific digging to the water bodies, such as wells, tube wells/ Bowaris and hand pumps, the water level if gone down due to extraction of the mines and minerals, loss caused to the forest land or the government land. Besides, the contribution ofsuch illegal and unauthorized mining in getting the environment and ecology polluted in that area shall also be indicated. The threat, if any, to the bridge on Lohara Khud at Kansa Chowk and on Lohara Khud connecting Dhabban and other villages near Syanh/Mohal Tawan/231, shall also be assessed during the inspection to be so conducted by the team as per this order. The inspection shall be conducted within three weeks from today and the report to be filed in this Court within a week thereafter.
By way of an interim measure, we also direct respondents No.5 and 6 to resort to all coercive actions to prevent the unauthorized mining, if any, in progress in these areas. List on 6.1.2020."
3. The status report in compliance to the aforesaid order has been filed by the Deputy Commissioner through respondents No.1 to 5, para4 whereof reads as under: "4. That it is further submitted that in order to curtail the illegal mining activities in the river bed areas of Lohara, Suketi & Kansa Khad, Sub Division Balh of Distt. Mandi H.P. the Mining Department has made persistent efforts and 265 number cases of illegal mining/transportation have been detected from 01042018 upto 31122019 out of which 159 number of cases were compounded which resulted in realization of Rs.11,54,200/ as compounding frees. The Details of Mining Cases ::: Downloaded on - 06/11/2020 20:29:45 :::HCHP detected/compounded in Subdivision Balh is annexed as Annexure R2.
Besides 32268.9 MT of illegally extracted mineral seized .
and the same has been auctioned which resulted in the realization of Rs.23,86,240/ to the Government exchequer."
4. The State has framed the Himachal Pradesh Minor Minerals (Concession) and Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015.
Rule 72 and Rule 73 thereof read as under: "72. Prevention of illegal mining No person shall undertake any mining operation in any area except under and in accordance with the terms and conditions of these rules.
73. Penalty provision for illegal mining Any contravention of rule 72 shall be punishable with imprisonment for a terms which may extent to two years, or with fine which may extend to Rs.25,000/ (Rupees Twenty Five Thousand only), or with both:
Provided that the contravention of rule 72 for the first and the second time may be compounded by an officer authorized by the Government under Section 22 of the Act and the case in relation to the subsequent contravention shall be filed by the officer so authorized in the competent court of law. The manner of compounding of offence shall be as under:
(i) In case of illegal mining carried out manually the amount of compounding fee shall not be less than Rs.10,000/ if the mineral extracted is upto 25 metric tonnes
(ii) If the quantity of illegal mining carried out exceeds 25 metric tonnes, additional compounding fee @ 400/ per metric tonne shall be charged;
(iii) In case of second contravention a minimum compounding fee of Rs.25,000/ shall be charged;
(iv) In case of illegal mining done mechanically in the river/stream beds, the amount of compounding fee shall not be less than Rs.25,000/"
5. The compliance affidavit though does disclose the details of some action taken under Rule 72 but the same is conspicuously silent with regard to the action taken under Rule 73. Therefore, let fresh affidavit be filed by the Deputy ::: Downloaded on - 06/11/2020 20:29:45 :::HCHP Commissioner well before the next date of hearing.
6. In addition thereto, since it is not the sole .
responsibility of the Deputy Commissioner alone to check the illegal mining, we deem it proper to implead the State Geologist as party respondent No.9. Registry is directed to carry out amendment in the memo of parties.
7. rIssue notice. Mr. Vinod Thakur, Additional Advocate General, appears and waives service of learned notice on behalf of respondent No.9. Reply be filed on or before next date of hearing.
8. Learned counsel for the petitioner states that even though crore of rupees have been imposed by way of fine, but no effective steps whatsoever have been taken to recover the said fine. Therefore, affidavit be also filed by the State Geologist as well as by Deputy Commissioner Mandi, H.P., as to what steps have been taken by them with regard to fine alongwith details of outstanding amount.
List on 14th December, 2020.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua) Judge 6th November, 2020(Rohit) ::: Downloaded on - 06/11/2020 20:29:45 :::HCHP