Rajasthan High Court - Jaipur
Sanjay Kumar Garg vs State Of Raj And Ors on 27 November, 2018
Bench: Chief Justice, G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writs No.9458/2018
Sanjay Kumar Garg S/o Shri Bhagwati Lal Garg, aged about 48
years, R/o 225, Mohan Nagar, Hindaun City, Karauli, Rajasthan.
----Petitioner
Versus
1. State of Rajasthan through Principal Secretary to
Government of Rajasthan, Mines Department, Government
Secretariat, Jaipur.
2. Jt. Secretary to Government, Mines Gr. 2 Department,
Government Secretariat, Jaipur.
3. Director, Department of Mines & Geology, Udaipur.
4. Superintending Mining Engineer Group-III, Department
of Mines & Geology, Jaipur Circle, Jaipur.
5. Union of India through Secretary, Ministry of
Environment & Forest & Climate Change, Government of
India, "Paryavran Bhawan", C.G.O. Complex, Lodhi Road,
New Delhi-110003.
6. M/s Hema Construction, Sukh Sadan, I-R-56, Gayatri
Nagar, H.M. Sector-5, Udaipur (Rajasthan) through its
Proprietor Harish Gaurav.
7. M/s Himmat Lal Prajapat, Sardar Bazar, Lasadiya,
Udaipur, (Raj.) Through its Proprietor Himmat Lal Prajapat.
8. Dinesh Singh S/o Suraja Singh, aged about 60 years,
by caste Yadav, Resident of Village Tehala, Tehsil Reyabadi,
District Nagaur (Rajasthan).
9. Budharam S/o Bikhamchand Mehtra By Caste Jat, Aged
about 40 Years, Resident of Village Kahajvana, Tehsil
Mundva District Nagur (Raj.).
10. Sitaram S/o Rajjakram, aged about 40 years, by caste
Meghwal, Resident of Village Tarnau, Tehsil Jayal District
Nagaur (Raj.).
11. Jitendra S/o Bikharam aged about 25 years, by caste
Jat, Resident of Village Kapdiwas, Tehsil Merta District
Nagaur (Raj.).
12. Hanuman Ram Hadman S/o Bhura Ram Jat, R/o
Village Dhadriya kala, Tehsil Digana, District Nagaur
(Rajasthan).
(2 of 27) [CW-9458/2018]
13. Kailash Chand Meena S/o Shiv Sahay, R/o Village &
Post Bankho, Tehsil Bassi, District Jaipur (Rajasthan).
14. M/s R.R. Minerals, House no. 225, Baniyon ka Mohalla,
Nalbadi, Bikaner through partner Shri Ravindra Singh S/o
Shri Mohan Singh.
15. Yudvir Singh S/o Shri Madan Singh, aged about 37
years, by caste Rajput, R/o Hadla Rawlotan, Kolayat,
Bikaner (Rajasthan).
16. Bhanwar Lal Bishnoi S/o Shri Gopi Ram, aged about 57
years, by caste Bishnoi, R/o Khariya (Malinath), Kolayat,
Bikaner (Rajasthan).
17. Karna Ram Jat S/o Shri Bhanwara Ram Jat, aged about
44 years, by caste Jat, R/o Near old Transfarmer, Karnisar,
Bikaner (Rajasthan).
18. Smt. Vijay Devi W/o Late Shri Krishan Gopal Gurjar,
aged about 58 years,R/o11, Aadarsh Colony, Bikaner (Raj.
19. M/s Patel Infrastructure Ltd. Having its Corporate
Office at Patel House, Beside Prakruti Resort, Channi Road,
Channi Vadodara-391740 (Gujrat). Present office K.M.
Stone, 72 to 500, Kishangarh, Gulabpura Highway (NH 79)
Village Bhagwanpura- Sathana, Tehsil Bijai Nagar, Dstrict
Ajmer-325624 (Rajasthan) through its authorized
signatory Shri Pravin Ramprasad Kahar (POA).
20. Bajri Lease LOI Holders Welfare Society through its
President, Shri Nawal Singh Ratnawat s/o Shri Narayan
Singh Ratnawat, aged about 62 years having its registered
office at A-24, Ambabari, Jaipur.
----Respondents
For Petitioner(s) : Mr. K.K. Sharma Senior Advocate
assisted by Mr. S. S. Shekhawat
Ms. Alankrita Sharma
Mr. Madhusudan S. Rajpurohit
For Respondent(s) : Mr. Anurag Sharma AAG with Mr.
Krishnaveer Singh,Mr.Anirudh Mathur,
Mr. Gaurav Bhardwaj
Mr. R.N.Mathur, Sr. Advocate assisted
by Mr. Prateek Mathur
Mr. Ashwini Chobisa, Mr. Vimal
Choudhary Mr. Yogesh Kumar
Mr. Gaurav Choudhary,
Mr. Punit Singhvi
Mr. A.K. Sharma, Senior Advocate
assisted by Mr. Rachit Sharma
(3 of 27) [CW-9458/2018]
Mr. Manish Gupta
Mr. Rajendra Prasad AAG with
Mr. M. Shiromani Sharma
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE G R MOOLCHANDANI
Judgment Reserved on :::: 01/11/2018
Judgment Pronounced on :::: 27/11/2018
BY THE COURT(PER HON'BLE THE CHIEF JUSTICE):
1. The petitioner filed the above captioned writ petition informing that he was issued a Letter of Intent for mining Bajri in Tehsil Mozamabad, District Jaipur. In paragraph 1 of the petition he pleads that he is aggrieved by the action of the respondents in permitting mining of sand without there being any scientific replenishment study; granting short term permits under Rule 51 of the Rajasthan Minor Mineral Concession Rules, 2017 and granting mining lease on agricultural land.
2. Case pleaded in the writ petition is that mining of bajri in the State of Rajasthan was hither-to-fore governed by the Rajasthan Minor Mineral Concession Rules, 1986 and as per proviso to Rule 63(3), no permission was required to mine bajri. Only royalty had to be paid. It is pleaded that vide notification dated 21/05/2012 the rules were amended. (the nature of amendments not being pleaded in the writ petition). It is pleaded that the Letter of Intent holders applied to the Ministry for being granted the necessary permission but on account of non-grant of environmental clearances, permissions have not been granted. It is pleaded that law requires scientific replenishment study to be (4 of 27) [CW-9458/2018] conducted. It is pleaded that vide order dated 16/11/2017 the Supreme Court prohibited mining of bajri without scientific replenishment study. Pleading that as an effect thereof the petitioner has been prohibited from mining bajri, grievance start from paragraph 12 of the writ petition. It is pleaded that to circumvent the direction issued by the Supreme Court the respondents have started granting short term permits (STPs) for mining of bajri as per Rule 51 of the Rajasthan Minor Mineral Concession Rules, 2017 as amended vide notification dated 28/12/2017. In paragraph 13 of the writ petition it is pleaded that the petitioner is not challenging the rules or notification, but is aggrieved by the fact that the short term permits are being granted without scientific replenishment study as well as environmental clearance. Names of 22 entities have been disclosed in paragraph 13 of the writ petition as the ones to whom short term permits have been granted. None of them have been impleaded as respondents. Pleading that in terms of a notification dated 15/01/2016 short term permits to mine bajri have been granted in areas of less than 5 hectares based on assessment by the District Environment Impact Assessment Authority, it is highlighted once again that this is sans a scientific replenishment study. It is pleaded that the notification dated 28/12/2017 allowing short term permits on agricultural land was challenged before the Supreme Court by an NGO but the challenge was withdrawn. The pleading in the writ petition take a dour. As noted hereinabove, the petitioner challenged grant of short term permits without a scientific replenishment study being granted and without environmental clearance certificate being granted, but in (5 of 27) [CW-9458/2018] paragraph 18 pleads that the environmental clearance by the District Environment Impact Assessment Authority, being in a cyclostyle manner, were contrary to the spirit of the law. Further pleadings show that challenge to the grant of mining leases for bajri on agricultural land is once again on the premise that a scientific replenishment study was not conducted. Referring to certain decisions by the Ministry of Environment and Forest as to in what manner scientific replenishment study has to be conducted, it is pleaded that the scientific replenishment study would thus be required to be given a statutory flavour.
3. Prayer made is that the respondents should be prohibited from permitting mining activity of bajri without scientific replenishment study, be it for a short term permit on private agricultural lands.
4. The writ petition was filed before a learned Single Judge who, on 03/05/2018 passed a blanket order prohibiting mining of bajri in agricultural land or through short term permits. Applications came to be filed by persons to whom short term permits were granted or to whom permissions were granted to excavate bajri from agricultural land. The stay was not vacated. The applicants were permitted to intervene but were not impleaded as respondents. In a batch of appeals, lead matter being DBSAW No.863/2018, noting that the claim of the petitioner was to espouse a public cause the writ petition was transferred to the division bench seized of public interest litigations. The applicants were impleaded as respondents.
5. In the original writ petition there were five respondents for State of Rajasthan, Joint Secretary of the Mines Department, (6 of 27) [CW-9458/2018] State of Rajasthan, Director Mines, Superintending Mining Engineer and the Union of India. 14 respondents came to be impleaded as respondents No.6 to 19.
6. Pertaining to respondents No.6 to 19, put in a tabular form - their names, whether they were granted short term permits or were issued mining licenses, with reference to the date of the mining license, type of land qua which STP or mining licenses have been granted, including date of environmental clearance and the quantity of minor mineral bajri to be mined as also distance from the nearest river in meters, the position is as under:-
S. Res ML. Type of Land Areas in E.C. Date Quantity of Distance from No pon No./STP Hect. S.T.P./Annual nearest river . den Production (in mts) t Capacity of No. Mining Lease (In Tonnes) 1 6 STP Private 0.968 27.02.2018 16000 534 Agriculture Land 2 7 STP Private 0.2124 27.03.2018 14500 45 Agriculture Land 3 8 M.L. No. Private 5.2805 09.04.2017 62624 1400 18/2014 Agriculture Land 4 9 M.L. No. Private 2.0741 17.06.2015 71652 2000 19/2014 Agriculture Land 5 10 M.L. No. Private 1.4068 17.05.2016 45696 700 21/2014 Agriculture Land 6 11 M.L. No. Private 3.00 03.06.2016 63040 1500 6/2014 Agriculture Land 7 12 M.L. No. Private 2.00 08.06.2016 47008 49000 20/2014 Agriculture Land 8 13 M.L. No. Gair Mumkin 17.37 13.07.2016 23100 Falls in Nalah 09/2013 Nalah 9 14 M.L. No. Private 3.00 24.05.2016 150000 There is no 01/2010 Agriculture river in (7 of 27) [CW-9458/2018] Land Bikaner 10 15 M.L. No. Private 2.26 27.02.2018 200000 District 183/2008 Agriculture Land 11 16 M.L. No. Private 4.00 14.10.2016 107427 17/2013 Agriculture Land 12 17 M.L. No. Private 3.00 24.05.2016 200000 177/2009 Agriculture Land 13 18 M.L. No. Govt. Land 3.79 04.01.2016 120000 40/1996 14 19 STP Private 0.7734 28.03.2018 50000 12000 Agriculture Land
7. One more applicant of Application No.81245/2018 who has not been formerly impleaded as a party but was heard as M/s.Daulat Singh and Sons. There issues raised by them is on the premise of the fact that applicants were granted a mining lease to mine Ball Clay, Fire Clay, Red & Yellow Ochre upto 50,000 metric a year. The environmental clearance was granted to said applicant by Mines of Environment, Forest & Climate Change on 21.01.2006. A by-product of the minor mineral clay as a result of excavation is Gravel and Friable Sand Stone which is a form of Bajri along Reddish Brown Colour Silica Sand. It sought environment clearance in the form of STP for selling this Friable Sand Stone. Mining Department granted the necessary permissions on 18.06.2018. Grievance is that in view of said order granted by the learned Single Judge the department is not processing the matter any further.
8. Mr. Kamlakar Sharma, learned Senior Counsel for the writ-petitioner conceded during arguments that pleadings in the writ petition were cryptic but requested the Court to keep in mind (8 of 27) [CW-9458/2018] that an issue of environment i.e. of deep public concern arose for consideration and thus requested the Court not to take resort to a pedantic approach and particularly when submissions which he proposed to advance were based on a decision rendered by the Supreme Court and the legal provisions. Thus, we heard learned counsel for the parties on the three issues which were finally raised during arguments.
9. The first contention urged was that in terms of a notification dated 15.01.2016 the process of environmental clearance for leases less than 5 hectares was assigned to the District Level Environmental Impact Assessment Authority. The Central Government had prepared guidelines on Sustainable Sand Mining-2016 detailing the provisions for environmental clearance for clusters, creation of District Environment Impact Assessment Authority and proper monitoring of sand mining using information technology. The preparation of the District Survey Report was as per Appendix-X to the notification dated 15.01.2016. It was urged that no mining activity could be undertaken in any district without identification of areas of aggravations or depositions after conducting proper study. It was urged that the District Survey Reports contained survey only of the river beds and of no other area and thus the environmental clearances granted were liable to be struck down.
10. The second contention urged was that without a scientific replenishment study mining in isolated patches including an agricultural land was illegal. Referring to a decision taken by the Ministry of Environment and Forest on 22.08.2016 concerning mining operations in agricultural lands it was urged that the (9 of 27) [CW-9458/2018] drainage pattern resulting into ponding effect had to be considered, which was not so done.
11. The third submission advanced was concerning short term permits and the argument was that short term permits could not be granted on principles analogous to grant of mining leases for parcels of land less than 4 hectare.
12. To deal with the three contentions advanced we proceed by noting the various legislative provisions and the decision of the Supreme Court reported as (2012) 2 SCC 629, Deepak Kumar & Ors. Vs. State of Haryana & Ors.
13. In the State of Rajasthan, mining of bajri was governed by the Minor Mineral Concession Rules, 1986 and as per the proviso to sub-rule (3) of Rule 63 no permission to mine bajri was required in the State of Rajasthan. A vehicle carrying bajri had to pay royalty at the departmental check post. In Deepak Kumar's case (supra) said practice was deprecated.
14. In Deepak Kumar's case (supra) the Supreme Court was considering proposed auctions by the Government of Haryana of mining mineral including gravel and sand on an area not exceeding 4.5 hectares in various districts in the State of Haryana. Illegal mining in State of Rajasthan and Uttar Pradesh also drew the attention of the Supreme Court in said decision. On the issue of breaking the homogeneous area into pieces of less than 5 hectares, the Supreme Court observed that same appeared to be to overcome the EIA notification dated 14.09.2006. The Supreme Court noted that the stand of the State of Haryana was that it had taken adequate and effective precautions to maintain 1 km.
(10 of 27) [CW-9458/2018] separation between mining blocks of less than 5 hectares each and had imposed restrictions on quarrying in the river beds.
15. In paragraph 11 of the opinion the Supreme Court considering the extraction of bajri within or near a river bed in blocks of less than 5 hectares separated by 1 km. observed that possibility of collective impact may be significant and hence there was a necessity for a proper environmental assessment plan.
16. In the next paragraph i.e. paragraph 12 the Supreme Court highlighted that only in cases of isolated discontinued mineral deposits in less than 5 hectares such mining leases may be granted.
17. In paragraph 17 the Supreme Court once again highlighted that though individual mines of minor minerals which are small in size may have insignificant impact but their collective impact on a regional scale may be significantly adverse.
18. In paragraph 19 the Supreme Court noted that different States had prescribed different minimum size of mining leases and in sub-para 4.2 of said paragraph suggested that there was a need to consider minimum size of a mining lease to be 5 hectares. In sub-para 4.4, the Supreme Court dealt with cluster approach for small size mines and the likely difficulties which could be faced by the Regulatory Authorities in monitoring the environmental impact and thus highlighted a desirability to adopt cluster approach in cases of smaller mine leases being operated.
19. The position therefore was that till the decision in Deepak Kumar's case (supra) was pronounced by the Supreme Court no environmental clearances for minor mineral leases less than 5 hectares was required. After the decision in Deepak (11 of 27) [CW-9458/2018] Kumar's case (supra), vide notification dated 09.09.2013 environmental clearances for mining leases of less than 5 hectares was provided for.
20. On 13.01.2015 the National Green Tribunal directed environmental clearances to be obtained by existing lease holders for mines less than 5 hectares.
21. On 24.12.2013, an Office Memorandum was issued by the Ministry of Environment and Forests providing for appraisal for category-B projects which include the leases for minor minerals as well. A pre-feasibility report of the project with mine plan approved by the authorized agency of the State Government were the two documents required to grant the necessary permission.
22. The Rajasthan Minor Mineral Concession Rules, 1986 were amended on 23.05.2012 requiring environmental clearances for mining of the minor mineral bajri. On 21.06.2012 the Rules of 1986 were amended by providing a relaxation under Rule 65A. The same provided granting short term permit.
23. The issue concerning mining of bajri under short term permits on river beds concerning the notification dated 21.06.2012 became a subject matter of challenge in D.B. Civil Writ Petition(PIL) No.13189/2012. Vide order dated 21.10.2013 the Division Bench did not permit the State Government to continue with the existing scheme in the absence of replenishment study being conducted. The decision of the Division Bench was challenged before the Supreme Court in SLP(C) No.34134/2013. The Supreme Court initially directed that permit holders could continue with mining operations but vacated its interim order on (12 of 27) [CW-9458/2018] 16.11.2017 directing that unless a scientific replenishment study was completed no mining in river beds could continue.
24. We are not concerned in the instant writ petition with mining of bajri in river beds. We are concerned with mining of bajri on private agricultural land and two instances of mining of bajri on Government land. From the tabular chart noted above, mining license on Government land is in the District of Bikaner where there are no rivers.
25. Though learned counsel for the writ-petitioner repeatedly laid emphasis on lack of replenishment studies being shown to this Court while granting the necessary environmental clearances, but the argument overlooks the fact that replenishment of bajri can only take place in river beds and not in private khatedari lands or Government lands which are far away from river beds. The reason is obvious. No silt or gravel flows onto or into said lands. Thus, the contention premised on lack of replenishment studies not being conducted is rejected.
26. On the issue of adverse environmental impact in the form of ponding effect suffice it to state that the decision of the Ministry of Environment and Forests relied upon pertained to large tracts of land where mining activity was proposed to be undertaken and in this context the Ministry highlighted the requirement of considering ponding effect. As noted above, in the instant case the areas of the leases are small.
27. We find that on 19.06.2012 in exercise of powers conferred by Section 15 of the Mines and Minerals (Development and Regulation) Act, 157, the Government of Rajasthan amended the Rajasthan Minor Mineral Concession Rules, 1986 and in sub-
(13 of 27) [CW-9458/2018] rule (1) of Rule 3 of the Rules of 1986, after existing clause (viii) and before existing clause (ix) clause (viii-a) was inserted, which reads as under:-
"(viii-a) "Cluster" means the geographical boundary declared by the Director comprising of mining leases/quarry licences/short term permits which already exists or to be granted in future. The area of a cluster declared by the Director, as far as possible, shall not exceed 50 sq. kms. and mineral concessions area at the time of formation of cluster shall not exceed 100 hectare."
28. The vires of said rule has not been challenged. A perusal of the rule shows that the concern expressed by the Supreme Court in Deepak Kumar's case (supra) has been attended to. The apprehension expressed by the Supreme Court where mining blocks were of less than 5 hectares with a distance of 1 km. maintained and thus since the mining was in a small area possibility of it having adverse environment impact has been taken care of. The Supreme Court highlighted that though individually impact may be minimum or 'nil', but as a cluster the impact may be severe.
29. The rule in question specifies 50 sq. kms. area as the area of a cluster, which is fairly significant. By limiting mineral concessions area to not exceeding 100 hectares, the rule strikes a balance between sustained development and conservation of environment. 100 hectares equals to 1 sq. km. Thus, the rule in question limits the area of mineral concessions for mining leases/ quarry licences/short term permits to only 1 sq. km., which would be 2% of the area of the cluster.
30. Notification dated 15.01.2016 incorporates Rule 3A in the Environmental Impact Assessment Notification dated (14 of 27) [CW-9458/2018] 14.09.2006. It provides for a District Level Environment Impact Assessment Authority. The rule reads as under:-
"3 A. District Level Environment Impact Assessment Authority:-
(1) A District Level Environment Impact Assessment Authority hereinafter referred to as the DEIAA shall be constituted by the Central Government under sub-
section (3) of section 3 of the Environment (Protection) Act, 1986 comprising of four members including a Chairperson and a Member-Secretary. (2) The District Magistrate or District Collector shall be the Chairperson of the DEIAA.
(3) The Sub-Divisional Magistrate or Sub-Divisional Officer of the district head quarter of the concerned district of the State shall be the Member-Secretary of the DEIAA.
(4) The other two members of the DEIAA shall be the senior most Divisional Forest Officer and one expert. The expert shall be nominated by the Divisional Commissioner of the Division or Chief Conservator of Forest, as the case may be. The term and qualifications of the expert fulfilling the eligibility criteria are given in Appendix VII to this notification. (5) The members of the DEIAA who are serving officers of the concerned State Government or the Union territory Administration shall be ex-officio members except the expert member.
(6) The District Level Expert Appraisal Committee hereinafter referred to as the DEAC shall comprise of eleven members, including a Chairman and a Member-Secretary.
(7) The senior most Executive Engineer, Irrigation Department in the district of respective State Governments or Union territory Administration shall be the Chairperson of the DEAC.
(8) The Assistant Director or Deputy Director of the Department of Mines and Geology or District Mines Officer or Geologist of the district shall be the Member-Secretary of the DEAC in that order. (9) A representative of the State Pollution Control Board or Committee, senior most Sub-Divisional Officer (Forest) in the district, representative of Remote Sensing Department or Geology Department or State Ground Water Department, one occupational (15 of 27) [CW-9458/2018] health expert or Medical Officer to be nominated by the District Magistrate or District Collector, Engineer from Zila Parishad, and three expert members to be nominated by the Divisional Commissioner or Chief Conservator of Forest, as the case may be, shall be the other members of the DEAC. The term and qualifications of the experts fulfilling the eligibility criteria are given in Appendix VII to this notification. (10) The members of the DEAC who are serving officers of the concerned State Government or the Union territory Administration shall be ex-officio members except the expert members.
(11) The District Magistrate or District Collector shall notify an agency to act as Secretariat for the DEIAA and the DEAC and shall provide all financial and logistic support for their statutory functions. (12) The DEIAA and DEAC shall exercise the powers and follow the procedure as specified in the said notification, as amended from time to time. (13) The DEAC shall function on the principle of collective responsibility and the Chairman shall endeavor to reach a consensus in each case and if consensus cannot be reached, the view of the majority shall prevail."
31. Appendix-VII to the Rule stipulates the qualifications and the terms for the Experts constituting the District Level Environment Impact Assessment Authority. The same reads as under:-
"APPENDIX VII (See paragraph 3 A) Qualifications and terms for the Experts in DEIAA and DEAC
1. Qualification: The person should have at least (i) 5 years of formal University training in the concerned discipline leading to a MA or M Sc Degree or (ii) in case of Engineering/ Technology/ Architectural discipline, 4 years formal training course together with prescribed practical training in the field leading to a B. Tech/ B.E./ B. Arch. Degree, or (iii) Other professional degree (e.g. MBA etc.) involving a total of 5 years of formal University training and prescribed practical training, or
(iv) Prescribed apprenticeship/ article ship and pass examinations conducted by the concerned professional associations (e.g. Chartered Accountancy) or (v) a (16 of 27) [CW-9458/2018] University degree, followed by two years of formal training in a University or Service Academy (e.g. MBA/MPA etc.). In selecting the individual professionals, experience gained by them in their respective fields will be taken note of.
2. Expert: A professional fulfilling the above eligibility criteria with at least 10 years of relevant experience in the field or with an advanced degree (e.g. Ph. D) in a concerned field with at least 5 years of relevant experience.
3. Age: Below 70 years. However, in the event of non-
availability of paucity of experts in a given field, the maximum age of a member may be allowed up to 75 years.
4. Fields: Experts in Mining, Geology, Hydrology, Remote Sensing, Environment Quality, Environment Impact Assessment Process, Risk Assessment, Life Sciences, Marine Sciences, Forestry and Wildlife, Environmental Economics, Bio-diversity, and River Ecology.
5. Tenure: The maximum tenure of expert members shall be for two terms of three years each.
6. The Expert Members may not be removed prior to expiry of the tenure without cause and proper enquiry."
32. Appendix-VIII highlights the particulars by providing the application for mining of minor minerals under category 'B2' i.e. for land less than or equal to 5 hectares. The same reads as under:-
"APPENDIX VIII (See paragraph 6) FORM 1 M APPLICATION FOR MINING OF MINOR MINERALS UNDER CATEGORY 'B2' FOR LESS THAN AND EQUAL TO FIVE HECTARE.
(II) Basic Information
(viii) Name of the Mining Lease site:
(ix) Location / site (GPS Co-ordinates):
(x) Size of the Mining Lease (Hectare):
(17 of 27) [CW-9458/2018]
(xi) Capacity of Mining Lease (TPA):
(xii) Period of Mining Lease:
(xiii) Expected cost of the Project:
(xiv) Contact Information:
Environmental Sensitivity Sl. No. Areas Distance in kilometer/ details
1. Distance of project site from nearest rail or road bridge over the concerned River, Rivulet, Nallah etc.
2. Distance from infrastructural facilities Railway line National Highway State Highway Major District Road Any Other Road Electric transmission line pole or tower Canal or check dam or reservoirs or lake or ponds In-take for drinking water pump house Intake for Irrigation canal pumps
3. Areas protected under international conventions, national or local legislation for their ecological, landscape, cultural or other related value
4. Areas which are important or sensitive for ecological reasons - Wetlands, watercourses or other water bodies, coastal zone, biospheres, mountains, forests
5. Areas used by protected, important or sensitive species of flora or fauna for breeding, nesting, foraging, resting, over wintering, migration
6. Inland, coastal, marine or underground waters
7. State, National boundaries
8. Routes or facilities used by the public for access to recreation or other tourist, pilgrim areas (18 of 27) [CW-9458/2018]
9. Defence installations
10. Densely populated or built-up area, distance from nearest human habitation
11. Areas occupied by sensitive man-made land uses (hospitals, schools, places of worship, community facilities)
12. Areas containing important, high quality or scarce resources (ground water resources, surface resources, forestry, agriculture, fisheries, tourism, minerals)
13. Areas already subjected to pollution or environmental damage. (those where existing legal environmental standards are exceeded)
14. Areas susceptible to natural hazard which could cause the project to present environmental problems (earthquakes, subsidence, landslides, erosion, flooding or extreme or adverse climatic conditions)
15. Is proposed mining site located over or near fissure / fracture for ground water recharge
16. 16. Whether the proposal involves approval or clearance under the following Regulations or Acts, namely:-
(a) The Forest (Conservation) Act, 1980;
(b) The Wildlife (Protection) Act, 1972;
(c) The Coastal Regulation Zone Notification, 2011.
If yes, details of the same and their status to be given.
17. Forest land involved (hectares)
18. Whether there is any litigation pending against the project and/or land in which the project is propose to be set up?
(a) Name of the Court
(b) Case No.
(c) Orders or directions of the Court, if any, and its relevance with the proposed project.
(19 of 27) [CW-9458/2018] (Signature of Project Proponent Along with name and address) "
33. Appendix-X provides for the procedure for preparation of the District Survey Report. It reads as under:-
APPENDIX - X [See paragraph 7 (iii) (a)] PROCEDURE FOR PREPARATION OF DISTRICT SURVEY REPORT The main objective of the preparation of District Survey Report (as per the Sustainable Sand Mining Guideline) is to ensure the following:
Identification of areas of aggradations or deposition where mining can be allowed; and identification of areas of erosion and proximity to infrastructural structures and installations where mining should be prohibited and calculation of annual rate of replenishment and allowing time for replenishment after mining in that area.
The report shall have the following structure:
1. Introduction
2. Overview of Mining Activity in the District 3 The List of Mining Leases in the District with location, area and period of validity
4. Details of Royalty or Revenue received in last three years
5. Detail of Production of Sand or Bajari or minor mineral in last three years
6. Process of Deposition of Sediments in the rivers of the District
7. General Profile of the District
8. Land Utilization Pattern in the district: Forest, Agriculture, Horticulture, Mining etc.
9. Physiography of the District
10. Rainfall: month-wise
11. Geology and Mineral Wealth In addition to the above, the report shall contain the following:
(a) District wise detail of river or stream and other sand source.
(b) District wise availability of sand or gravel or aggregate resources.
(c) District wise detail of existing mining leases of sand and aggregates.
A survey shall be carried out by the DEIAA with the assistance of Geology Department or Irrigation Department or Forest Department or Public Works Department or Ground Water Boards or Remote Sensing Department or Mining Department etc. in the district.
(20 of 27) [CW-9458/2018] Drainage system with description of main rivers S.No. Name of the River Area drained (Sq. % Area drained in the Km.) District Salient Features of Important Rivers and Streams:
S.No. Name of the Total Length in Place of origin Altitude at River of Stream the District (in Origin Km) Portion of the Length of area Average width Area Mineable River or Stream recommended of area recommended mineral Recommended for mineral recommended for mineral potential (in for Mineral concession (in for mineral concession (in metric tonne) Concession kilometer) concession (in square meters) (60% of total meters) mineral potential) Mineral Potential Boulder (MT) Bajari (MT) Sand(MT) Total Mineable mineral Potential (MT) Annual Deposition S.No. River or Portion of Length of Average Area Mineable Stream the river or area width of recommend mineral stream recommend area ed for potential (in recommend ed for recommend mineral metric ed for mineral ed for concession tonne) mineral concession mineral (in square (60% of concession (in concession meter) total kilometer) (in meters) mineral potential) Total for the District A Sub-Divisional Committee comprising of Sub-
Divisional Magistrate, Officers from Irrigation department, State Pollution Control Board or Committee, Forest department, Geology or mining officer shall visit each site (21 of 27) [CW-9458/2018] for which environmental clearance has been applied for and make recommendation on suitability of site for mining or prohibition thereof.
Methodology adopted for calculation of Mineral Potential:
The mineral potential is calculated based on field investigation and geology of the catchment area of the river or streams. As per the site conditions and location, depth of minable mineral is defined. The area for removal of the mineral in a river or stream can be decided depending on geo-morphology and other factors, it can be 50 % to 60 % of the area of a particular river or stream. For example in some hill States mineral constituents like boulders, river born Bajri, sand up to a depth of one meter are considered as resource mineral. Other constituents like clay and silt are excluded as waste while calculating the mineral potential of particular river or stream.
The District Survey Report shall be prepared for each minor mineral in the district separately and its draft shall be placed in the public domain by keeping its copy in Collectorate and posting it on district's website for twenty one days. The comments received shall be considered and if found fit, shall be incorporated in the final Report to be finalised within six months by the DEIAA.
The District Survey Report shall form the basis for application for environmental clearance, preparation of reports and appraisal of projects. The Report shall be updated once every five years."
34. Appendix-XI lays down the policy to be followed for environmental clearance for mining of minor minerals including cluster situation for areas upto or less than 5 hectares. The same reads as under:-
"APPENDIX - XI [See paragraph 7 (iii) (b)] PROCEDURE FOR ENVIRONMENTAL CLEARANCE FOR MINING OF MINOR MINERALS INCLUDING CLUSTER The following policy shall be followed for environmental clearance of mining of minor minerals including cluster situation:-
(1). The data provided by the States (Sustainable Sand Mining Guidelines) shows that most of the mining leases for minor minerals are of lease area less than 5 hectare. It is (22 of 27) [CW-9458/2018] also reported that in hill States getting a stretch in river with area more than 5 hectare is very uncommon. So the size of lease for minor minerals including river sand mining will be determined by the States as per their circumstances.
(2). The mining of minor minerals is mostly in clusters. The Environment Impact Assessment or Environment Management Plan are required to be prepared for the entire cluster in order to capture all the possible externalities. These reports shall capture carrying capacity of the cluster, transportation and related issues, replenishment and recharge issues, geo-hydrological study of the cluster area. The Environment Impact Assessment or Environment Management Plan shall be prepared by the State or State nominated Agency or group of project proponents in the Cluster or the project proponent in the cluster.
(3). There shall be one public consultation for entire cluster after which the final Environment Impact Assessment or Environment Management Plan report for the cluster shall be prepared.
(4). Environmental clearance shall be applied for and issued to the individual project proponent. The individual lease holders in cluster can use the same Environment Impact Assessment or Environment Management Plan for application for environmental clearance. The cluster Environment Impact Assessment or Environment Management Plan shall be updated as per need keeping in view any significant change.
(5). The details of cluster Environment Impact Assessment or Environment Management Plan shall be reflected in each environmental clearance in that cluster and DEAC, SEAC, and EAC shall ensure that the mitigative measures emanating from the Environment Impact Assessment or Environment Management Plan study are fully reflected as environmental clearance conditions in the environmental clearance's of individual project proponents in that cluster.
(6). A cluster shall be formed when the distance between the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area.
(7). Form 1M, Pre-Feasibility Report and mine plan for Category 'B2' projects for mining of minor minerals shall be prepared by the Registered Qualified Person or Accredited Consultants of Quality Council of India, National Accreditation Board for Education and Training. The Environment Impact Assessment or Environment Management Plan for Category 'A' and Category 'B1' projects shall be prepared by the accredited consultants of (23 of 27) [CW-9458/2018] Quality Council of India, National Accreditation Board for Education and Training.
(8). The SEIAAs shall have supervisory jurisdiction over the DEIAAs and decisions of DEIAA shall be reviewed by the SEIAA without prejudice to any provisions under any existing law.
Schematic Presentation of Requirements on Environmental Clearance of Minor Minerals including cluster situation Area of Category Require Require Requir Who can Who will Authority Authority to Lease of ment of ment of ement prepare apply for to monitor EC (Hectare Project EIA/ EMP Public of EC EIA/ EMP EC appraise/ compliance ) Hearing grant EC EC Proposal of Sand Mining and other Minor Mineral Mining on the basis of Individual mine lease 0-5ha 'B2' Form-1M No Yes Project Project DEAC/ DEIAA PFR and Proponent Proponent DEIAA SEIAA Approve SPCB d Mine CPCB Plan MoEFCC Agency > 5 ha 'B2' Form-I, No Yes Project Project SEAC/ Nominated and < 25 PFR and Proponent Proponent SEIAA by MoEFCC ha Approved MinePlan and EMP > 25 ha 'B1' Yes Yes Yes Project Project SEAC/ < 50 ha Proponent Proponent SEIAA >50 ha 'A' Yes Yes Yes Project Project EAC/ Proponent Proponent MoEFCC EC Proposal of Sand Mining and other Minor Mineral Mining in cluster situation Cluster 'B2' Form-1M No Yes State, Project DEAC/DE DEIAA area of PFR and State Proponent IAA SEIAA mine Approve Agency, SPCB leases d Mine Group of CPCB upto 5 Plan Project MoEFCC ha Proponents Agency Project nominated by Proponent MoEFCC Cluster 'B2' Form-1M No Yes State, Project DEAC/ area of PFR and State Proponent DEIAA/ Mine Approve Agency, leaes > 5 d Mine Group of ha and < Planand Project 25 ha one EMP Proponents with no for all Project individual leases in Proponent lease > 5 the ha Cluster Cluster 'B1' Yes Yes Yes State, Project SEAC/ of mine State Proponent SEIAA leases of Agency, area >25 Group of hectares Project with Proponents individual Project lease Proponent size < 50 ha Cluster 'A' Yes Yes Yes State, Project EAC/ of any State Proponent MoEFCC size with Agency, (24 of 27) [CW-9458/2018] any of Group of the Project individual Proponents lease > Project 50 ha Proponent
35. A perusal of the three Appendixes would show that complete concern to balance the environment and mining of bajri and boulders has been taken care of. Thus, as regards the requirements of law are concerned we find that the legal provisions in the State of Rajasthan concerning mining of bajri on private khatedari lands and Government lands away from river beds, conforms to the principles of sustainable development and takes care of the environment.
36. Data provided by the State of Rajasthan shows that in the State of Rajasthan environmental clearance has been granted for mining of bajri in private khatedari lands in various Tehsils of District Bikaner. The number is 49. The lease area varies between 2 hectares to a maximum of 4.96 hectares. In District Nagaur 14 mining leases for bajri in private khatedari lands with environmental clearance have been granted. The area varies between 1 hectare to 5.28 hectares. On Government lands bajri mining leases with environmental clearance has been granted to 12 persons in District Bikaner. In Districts Barmer, Nagaur, Rajsamand, Kota, Bhilwara and Sawai Madhopur 15 short term permits on private lands have been granted with environmental clearance. In Districts Rajsamand, Nagaur, Bikaner and Chittorgarh 14 short term permits on Government lands have been granted with environmental clearance.
37. With reference to Appendix-VIII, environmental sensitivity requires distance from road, bridges, river and nallahs (25 of 27) [CW-9458/2018] to be taken into account. The ecology sensitive areas such as wetlands, watercourses, biospheres, mountains and forests have also to be taken into account. Similarly areas where sensitive species of flora or fauna breeding and nesting from migratory birds have also to be taken into account. In the absence of specific challenge to the District Survey Reports we are not inclined to hold a roving and fishing enquiry into the District Survey Reports in these areas based whereon environmental clearance has been granted. It is trite that there is a presumption that official acts and decisions are legal unless shown to be to the contrary.
38. Thus, since we are not concerned with grant of mining leases on river beds; as already held above, the requirement of replenishment study is inherently not applicable to the sites in question. On the second contention urged i.e. of environmental clearance not being granted as per law, we hold that the requirements of law pertaining to District Survey Reports and environmental clearances being granted in terms of the rules has been complied with, we reject the contentions advanced on behalf of the petitioner.
39. We also highlight that in respect of mining leases environmental clearances were by and large granted in the year 2016. Mining leases were granted much prior. Environmental clearances were granted in the year 2016 on account of the notification issued in January, 2016 requiring existing leases to be considered from the point of view of environmental clearances.
40. Pertaining to short term permits, the rules as noted above permit so. In respect of short term permits we additionally highlight that even otherwise adverse environmental impact would (26 of 27) [CW-9458/2018] be minimal on account of the fact that the quantity of bajri which can be excavated has been specified. The short term permits have been granted because bajri is required for Government projects of great public importance.
41. As held by the Supreme Court in the decision reported as (2002) 10 SCC 606, T.N. Godavarman Thirumulpad Vs. Union of India & Ors., it cannot be disputed that no development is possible without some adverse effect on the ecology and environment and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial ventures bring in results, which are far more useful for the people, difficulty of a small number of people has to be by-passed. The comparative hardships have to be balanced and the convenience and benefit to a large section of the people has to be given preference over comparatively less hardships.
42. As observed by the Supreme Court in the decision reported as (2009) 9 SCC 737, Tirupur Dyeing Factory Owners Vs. Noyyal Rivers Ayacutdars Protection Association, the concept of sustained development covers the development that meets the needs of the person without compromising the ability of the future generation to meet their own needs. It means the development that can take place and which can be sustained by nature/ecology with or without mitigation. Therefore in such matters, the required standard is that the risk of harm to the environment or to the human health is to be decided in public interest according to a reasonable persons test.
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43. Concerning M/s Daulat Singh and sons, suffice it to state that mining lease was to mine Ball Clay, Fire Clay, Red & Yellow Ochre. Gravel and friable sand stone which is a form of bajri is a by-product. Necessary permission has been granted by the Mining Department to sell the same. Remaining codal formalities came to be halted in view of the stay order granted by the learned Single Judge. Since the writ petition is being dismissed the authorities shall process the application of said applicant as per law.
44. The writ petition is dismissed.
(G R MOOLCHANDANI),J (PRADEEP NANDRAJOG),CJ KKC/Anil Goyal/ (Reserved)(s-45) Powered by TCPDF (www.tcpdf.org)