Himachal Pradesh High Court
Court On Its Own Motion vs State Of Himachal Pradesh & Others on 10 January, 2018
Author: Sanjay Karol
Bench: Sanjay Karol, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWPIL No. 10 of 2017 Date of Decision : January 10 , 2018 Court on its own motion ... Petitioner Versus State of Himachal Pradesh & others ...Respondents Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice, The Hon'ble Mr. Justice, Sandeep Sharma, Judge.
Whether approved for reporting? Yes. 1 For the petitioner : Ms. Shalini Thakur, Advocate, as Amicus Curiae.
For the respondent : Mr. Ashok Sharma, Advocate General with Mr. M.A. Khan and Mr. Varun Chandel, Addl. A.Gs.
and Mr. J. K. Verma, Dy.A.G. for
respondents/State.
Sanjay Karol, ACJ.
On the basis of letter petition with regard to illegal mining of minerals being carried out in District Mandi, this Court, taking suo motu cognizance, issued notice.
Letter petitioner Sh. Harish Chander s/o Sh. Gopal Singh, Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 2
R/o Village Manyana Kehanwal, P.O. Tilli, Tehsil Sadar, Distt.
Mandi, H.P., alleged that in village Manyana Kehanwal, .
Tehsil Sadar, Distt. Mandi, illegal mining of minerals is being carried out and despite the matter having brought to the notice of the concerned officials, including the Deputy Commissioner and the D.F.O., unabatedly the mining is being carried out without any checking.
2. The Additional Superintendent of Police, Mandi, vide his affidavit dated 25.5.2017, admitted the factum of illegal mining being carried out within the territorial jurisdiction of Tehsil Sadar, Distt. Mandi, H.P. and F.I.Rs.
having been registered with regard thereto. However, what shocked the Court was the extent of illegal mining inasmuch as in 417 cases, offenders were challaned and a sum of `8,97,800/- was recovered as fine only from one police station. This prompted the Court to pass the following order on 10.7.2017:
"From the affidavit filed by Additional Superintendent of Police, Mandi, it is evident that in District Mandi lone, 407 cases of illegal mining were detected and the defaulters challaned, from whom, a total sum of `8,97,800/- recovered. Learned Amicus Curiae invites our attention to the effect that within ::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 3 the district, 21 mining leases have been granted and that too after getting environmental clearances. She .
further drew our attention to the fact that the total quantity recovered as a result of illegal mining is more than 70 MT. It is in this back drop that we do not find the explanation so furnished by the Additional Superintendent of Police as also the Deputy Commissioner to have taken adequate steps for checking illicit mining to be satisfactory or worthy of inspiring in confidence.
2. Mr. Anup Rattan, learned Additional Advocate General invites our attention to the Himachal Pradesh Mining Policy, 2013, so notified on 24th of August, 2013. Perusal thereof indicates existence of complete mechanism for taking adequate steps for checking the menace of illicit mining. Also there is a mechanism for conducting survey of river beds and other places including rivulets and rivers having mineral deposits. The committee is required to carry out survey and after obtaining permission from the authorities so established under various statutes dealing with environmental and forest laws, identify sites for auction. Now there is nothing on record to show as to whether prior to the issuance of 21 mining leases, any such survey was carried out or permission obtained from the statutory authorities. Also whether there is any policy, for district Mandi for putting such minerals alongside rivulets and rivers for auction or not is not clear. Also we find that there is complete mechanism provided for illegal mining.::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 4
Specific attention can be drawn to clause 10, which reads as under:-
.
"10. Steps to check illegal mining.
10.1. Illegal mining leads to unscientific & haphazard mining, therefore, emphasis has to be given to check the menace of illegal mining. It has been noticed that illegal mining mostly takes place on Govt. lands largely belonging to Revenue & Forest Department. Henceforth there is a need for action by the custodian Departments of such land from where this material is sourced. It would be the responsibility of such Department/custodian of such land to promptly initiate action to prevent r illegal mining for which they have adequately been empowered under relevant act/statutes. 10.2. It shall be incumbent on the concerned Department whose public property is damaged or caused to be damaged by illegal mining to file First Information Report (FIR) with Police for damaging public property besides filing case of illegal extraction in the competent court of law. 10.3. in case any working stone crusher registered as such on enquiry is found to be involved violating any of the conditions prescribed at the time of approval/registration of such unit may be imposed a penalty/fine to be prescribed under the rules.
Subsequent violation if any would be dealt with severely and attract penal provisions stringent action which may include disconnection of electricity or de-registration of unit and cancellation of lease/working permit etc. Similar provision shall be made for the stone crushing unit being run of DG Sets.
::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 510.4 The finished product i.e. grit, sand, etc. shall also be transported with color coded M-Form/transit pass issued by the concerned Mining Office.
.
10.5 In order to check the misuse of "M" Form the system for its issue shall be reviewed and modernized by adopting Bar Coding and to make to more scientific, transparent and accountable. 10.6 the unauthorized mineral material seized during checking/raids shall be put to auction within a period not exceeding one month by the Committee comprising of the following:-
1-Sub Divisional Magistrate Chairman 2-Deputy Superintendent of Member r Police 3-Assistant Conservator of Member Forest/Range Officer This Committee shall follow the prescribed procedure and the Chairman can co-opt any other member for this purpose.
10.7 To encourage public participation and create public awareness about the ill effect of illegal mining on the environmental & Ecology frequent interaction with the Public representatives and opinion makers at local level shall be actively encouraged.
10.8 the mineral concession holder will fix sign board at the conspicuous prominent place near concession area depicting all relevant details of mining lease like area, period of permission, purpose of lease etc. for the information of general public. People including mining lessee will be encouraged to report cases of any illegal mining to concerned Mining Officer and other authorized Officers for taking appropriate action as per Law.::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 6
10.9 To review the complaints relating to illegal mining a dedicated toll free number shall be installed/activated in the office of State Geologist.
.
10.10 Regular review of illegal mining activities and action taken to stop them shall also form part of agenda of meeting taken by the Deputy Commissioner on quarterly basis and report to this effect shall be submitted to the Director of Industries/Government regularly. 10.11 Periodic interaction between the lease holder and Department will be organized to redress the problems/issues of the mining industry. 10.12 A comprehensive review of the manpower r needs of the Department will be undertaken to ensure that adequately trained manpower at all levels is provided for scientific exploration of minerals in the State & to check the menace of illegal mining effectively.
Note:- These policy guidelines are to be read with the statutory provisions in the relevant Acts and Rules, directions from the Hon'ble Courts from time to time and may be amended/changed by the competent authority."
3. On record, there is nothing to establish that such preventive steps were ever taken by the respondents.
4. As such, we direct the Deputy Commissioner, Mandi, to file his personal affidavit disclosing: (a) whether such Committees stand established or not;
(b) as to whether any survey stands conducted by the Committees or not; (c) as to whether any ::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 7 sanctions, based upon surveys, have been obtained from the statutory authorities or not; (d) as to .
whether the Government has taken a decision to the effect that minerals deposits alongside the river beds, rivulets can be put to auction. If so then why the same have not been put to auction; (e) if the minerals can not be put to auction then what steps stand taken for checking illegal mining; (f) as to what action stands taken against the erring officer(s)/official(s), who allowed the unscientific and illegal mining in more than 407 cases. Such affidavit be filed within two weeks.
5.r It shall be open to the learned Amicus Curiae to fully interact with the Deputy Commissioner and the Members of the Committee and give suggestions of involving civil society in helping/checking this menace of illicit mining. We issue such directions taking into consideration Section 10.7 of the Policy whereby the State is obliged to encourage public participation and create awareness of ill effect of illegal mining.
List on 25th of July, 2017"
3. The Conservator of Forests, Mandi Forest Circle, Mandi, H.P., vide affidavit dated 23.6.2017, had also informed the Court about the illegal mining being carried out in Gram Panchayat Tilli, District Mandi, H.P. ::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 8
4. Further, Deputy Commissioner, Mandi, filed his affidavit dated 30.6.2017, disclosing names of all the .
offenders and the quantity of material so recovered. We need not deal with the same elaborately, save and except, note that the quantity recovered was huge.
5. Considering the fact that the sites of deposit of minerals were neither surveyed nor identified, much less, put to auction in accordance with law, this Court directed the State Geologist to have the needful done at the earliest.
On 28.7.2017, we recorded our satisfaction that areas falling in Mandi district were surveyed.
6. On 6.12.2017 we further passed the following order:
"S/Sh.Madan Chauhan, Deputy
Commissioner, Mandi, Atul Kumar, Assistant
Geologist and Rajeev Kalia, Mining Officer, Mandi, are present in Court.
Deputy Commissioner, Mandi, seeks permission to withdraw the affidavit dated 29.09.2017. Registry is directed to return the same. Let fresh affidavit, in its place, be filed within a period of one week.
On 28.09.2017, we had noticed the efforts put in by the Deputy Commissioner, Mandi, in identifying the areas, which could have been put ::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 9 to auction subject to the recommendation of the State Geologist.
.
Subsequently, on 15.09.2017, we pass the following order:
"Learned Amicus points out that affidavit of Deputy Commissioner is conspicuously silent with regard to direction (f) contained in para-4 of order dated 10.7.2017 passed by this Court.
Let an affidavit, stating action taken against erring officials, be positively filed within one week. Also, whether action qua all the sites so identified, for which permission is sought from the State Geologist, has been taken or not? if not, then what is the status of the file, and, if permissions already stand accorded, then, within how much time, action shall take place. In any event, we direct State Geologist, Himachal Pradesh and Secretary (Industries) to have the matter first examined and thereafter file their personal affidavits stating the position with regard to files pertaining to District Mandi.
Affidavits be filed within one week. Officer need not remain present, unless so directed.
List on 11.10.2017.
Copy dasti."
We notice that at least thirty sites were identified, which could have been put to auction for extraction of minor minerals. This was in ::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 10 District Mandi, alone. Regretfully, out of these sites, only three sites could be auctioned for the .
reason that the matter was pending consideration with the Secretary concerned. In his affidavit dated 25.10.2017, Additional Chief Secretary (Industries) to the Government of Himachal Pradesh, has not indicated the reasons for not taking decision with regard to such sites. Perhaps inaction on the part of the authorities concerned has resulted into loss of revenue. This State of affairs is only with regard to District Mandi. We are not sure that what is the position with regard to whole of the State of Himachal Pradesh.
As such, let Additional Chief Secretary (Industries) to the Government of Himachal Pradesh, file his personal affidavit stating the reasons for delay in not dealing with the cases recommended by the Deputy Commissioners/ State Geologist for extraction of minor minerals, not only with regard to District Mandi, but entire State. Such information be furnished in a tabulated form, District wise, indicating the date on which the case was forwarded by the Deputy Commissioner; the State Geologist and received in the office of the Additional Chief Secretary (Industries) to the Government of Himachal Pradesh. Reasons for delay be furnished in a separate column.
Also as to whether there is any mechanism, in place, for dealing with such cases in a timely manner or not, be also stated in his affidavit.
::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 11We may only observe that decision to put the site of deposit of minor minerals to auction is the .
sole prerogative of the State. The extraction of material has to be on scientific basis. But then, such decision has to be based on sound and settled principle of law and the cases have to be dealt with, with speed and expedition. This we say so for the reason that timely extraction of minor minerals before the onset of monsoon, would only help replenish the sites with the same, rather than, allowing them to go waste and inundate the lower line areas. Ordinarily and prudently, such decisions necessarily have to be taken before the monsoons.
It is in this backdrop, we express our concern of lack of insensitivity exhibited by the competent authorities at the highest level.
Additional Chief Secretary (Industries) to the Government of H.P. and State Geologist, remain present in Court on the next date of hearing.
S/Sh.Atul Kumar, Assistant Geologist and Rajeev Kalia, Mining Officer, Mandi, need not remain present in Court, unless so directed. List on 13.12.2017.
Copy dasti."
7. Pursuant thereto, the Addl. Chief Secretary (Industries) to the Government of Himachal Pradesh as also the Conservator of Forest, Mandi have now filed their affidavits dated 25.10.2017; 11.12.2017 and 1.12.2017, ::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 12 stating that not only the sites of deposit of minerals stand surveyed but also calendar stands prescribed for carrying .
out the auction of the minerals so deposited along the banks of rivers/rivulets as also the quarries. Affidavit dated 9.1.2018 that of Sh. Rajneesh Sharma, State Geologist, Himachal Pradesh, Shimla reads as under:
"2. That it is submitted that broadly the water flowing through the river perform three types of geological actions i.e. erosion, transportation and deposition. Flowing water erodes mineral/material from the catchment area as well as from the banks of a river channel and transport the eroded material to a new location for further deposition. The quantum of erosion, transportation and deposition of mineral (Sand, Stone & Bajri) varies from stream to stream depending upon numbers of factors such as catchment of the area, lithology, discharge, river profile and geomorphology of the river course. The annual deposition of mineral i.e. Sand, Stone & Bagri mostly takes place during the rainy season and depends upon the intensity of rainfall & types of rocks in the catchment area. However, in case, there is unprecedented rain during rainy season along a particular river basin, it may lead to flash floods; landslides etc. which may further cause over accumulation of sediment load in a particular stretch of a river/stream.::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 13
3. It is submitted that generally, the rainy season starts in the State of Himachal Pradesh from the .
month of July and terminates up to September month of a particular year. As such soon after the termination of the said monsoon period, there may be possibility for development of new mineral bearing sites generated due to aforesaid circumstances i.e. flash floods; landslides etc. As such, all Mining Officers are being directed to identify such new developed mineral bearing sites, immediately after the rainy season in a particular year is over i.e. upto the 30th November of every year and accordingly, directions are being issued to Mining Officers of the Districts to complete the whole process of procurement of revenue record, demarcation & joint inspection of such new developed sites up to the 31st December of every year so that after scrutiny of the proposal and completion of whole process approval of the Government could be obtained for publication of Tender-cum-Auction notice within a period of 30 days upto the 31st January of every year."
8. Affidavit dated 11.12.2017 that of Sh. Tarun Kapoor, Addl. Chief Secretary (Industries) to the Government of Himachal Pradesh, Shimla, reads as under:
"2. That the District wise information of cases of tender cum auction forwarded by the Deputy Commissioners/ State Geologist H.P. for approval of the Government in a tabulated form is as under:-::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 14
Sr. Name of Date on which Date on Date on Remarks/Rea No. the District the proposal which the which sons for was Director of approval delay forwarded by Industries conveyed by .
the Mining forwarded the
Officer from the case to Government
the District the
Government
after scrutiny
1. Mandi 05.09.2017 29.09.2017 07.10.2017 Approval
(Second already
Phase) conveyed.
Pending for
publication of
auction
notice at
Directorate
level due to
Modal Code
of Conduct.
Letter issued
to Mining
Officer for
fixation of
r date.
2. Kangra 05.07.2017 05.09.2017 29.09.2017 Approval
(Second already
Phase) conveyed.
Pending for
publication of
auction
notice at
Directorate
level due to
Modal Code
of conduct.
Letter issued
to Mining
Officer for
fixation of
date.
3. Bilaspur 26.08.2017 26.09.2017 07.10.2017 Approval
already
conveyed.
Pending for
publication of
auction
notice at
Directorate
level due to
Modal Code
of conduct.
Letter issued
to Mining
Officer for
fixation of
date.
The Detail of the quarries already auctioned:-::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 15
Sr.No. Name of District Numbers of Date of Auction quarries auctioned 1 Hamirpur 14 21.04.2016
2. Sirmour 21 06.07.2015 & .
07.07.2015 & 23.11.2016 3 Una 6 20.08.2017 st 4 Mandi (1 Phase) 3 02.08.2017 st 5 Kangra (1 Phase) 13 25.04.2016 It is submitted that the approval in all the cases received from Deputy Commissioners through the Directorate of Industries Himachal Pradesh has been conveyed by the Government on the dates shown in the table and there is no delay at the part of the Government in any manner. However, the matter for the publication of notice for Tender-cum-
Auction is pending at the Directorate level due to Modal Code of conduct which is in operation till 20.12.2017.
3. That it is also submitted that apart from the above, the Department has already auctioned 14 numbers of quarries in District Hamirpur, 13 quarries in Districti Kangra (in first phase), 21 quarries in District Sirmour, 06 quarries in District Una and 03 quarries in Mandi (in first phase) H.P. to meet out the demand of raw material in the aforesaid Districts. In rest of the Districts, the proposals for the auction of quarries is under process at various stages at the District level. In case, any proposal is received from these remaining Districts by the Government, the same shall be put to auction expeditiously after completing all codal formalities.
::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 164. That the preparation of survey documents is the pre requisite for grant of mineral concession by .
way of auction and the same is prepared and approved by the District Environment Assessment Authority (DEIAA) as per notification dated 15.01.2016 issued by the Ministry of Environment, Forest and Climate Change (MoEF & CC) Government of India. Thereafter the suitable mineral bearing sites are identified by the concerned Mining Officer at the District keeping in view the general geography of the region, location of public utility points, hydroelectric projects, reservoir, cremation sheds, schools, public paths, gharats etc. located along the respective identified sites in the Districts. Accordingly, the demarcation of the site proposed for auction conducted after collecting the revenue record from the concerned authorities, the date for joint inspection of the site proposed for auction is fixed by the concerned Sub-Divisional Officer, keeping in mind the availability of all the Committee members. After the conduction of the Joint Inspection and suggestions/recommendations of the Committee members, removal of objections if any, the joint inspection report is prepared by the concerned Mining officer which is then sent to the Government for obtaining approval of the Government and further fixation of the date of Tender-cum-Auction.
It also important to mention here that as per Himachal Pradesh Minor Minerals (Concession) and Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015, it has been prescribed ::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 17 under Rule 25 that notice of auction or tender shall be notified by the Director in the Himachal Pradesh .
Government Gazette by publishing the auction notice atleast 30 days before the date of auction or tender. A copy of the auction or tender notice shall be sent to the local authority having jurisdiction over the area, where the mine is situated for giving wide publicity."
9. In view of the intervening developments we are persuaded by Sh. Anup Rattan, learned Addl. Advocate General to close the present proceedings which we do so with the following directions:
(i) The calendar set up by the Government for carrying out surveys; inspecting the sites; and putting the same to auction, strictly in accordance with law, shall be adhered to by the State.
(ii) An endeavour shall be made to have the surveys carried out periodically and wherever advisable and feasible, such of those sites which are replenished or have fresh deposits, be put to auction/grant of lease/license, in accordance with law. This would only ensure that rather than allowing the deposit of minerals to be washed away downstream with the flow of water, same can be extracted and the sites replenished afresh. The purpose is not only to generate ::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 18 revenue but to ensure no inundation of rivers down stream takes place, causing severe .
damage to property and human life.
(iii) The Himachal Pradesh Minor Minerals (Concession) & Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015, shall be adhered to in letter and spirit and the State Geologist shall ensure that no extraction of minerals takes place in violation thereof and the directions issued by Hon'ble the Apex Court as also this Court, in its several pronouncements, from time to time.
(iv) The Government may consider making provisions for checking illicit mining to be more stringent. Not only action shall be taken against private persons engaged in such illegal mining but strict action shall also be taken against the Government Officials who, at the first instance, allow such mining to take place.
(v) The state has formulated a policy termed as Himachal Pradesh Mining Policy, 2013, so notified on 24th of August, 2013. Considering the overall development which has taken place in the last five years within the State of Himachal Pradesh, perhaps this Policy needs to be revised which the State must positively do within six months. The Chief Secretary to the Government of Himachal Pradesh shall ensure compliance of ::: Downloaded on - 20/05/2018 21:06:12 :::HCHP 19 the order and file his personal affidavit of compliance.
.
10. We clarify that issues, other than the one we have noticed remain untouched and shall be dealt with in other appropriate proceedings.
11. Before parting, we wish to place on record our appreciation qua the efforts put in by Ms. Shalini Thakur, learned Amicus Curiae, who, on the instructions of this court, contacted the letter petitioner and obtained necessary feedback.
12. Registry is directed to send a copy of this judgment to the Deputy Commissioner, Mandi, H.P. and State Geologist, Himachal Pradesh, for necessary action as well as to the letter petitioner to enable them to take follow up action with the concerned authorities.
With the aforesaid observations, present petitions stand dispose of.
(Sanjay Karol), Acting Chief Justice.
(Sandeep Sharma), Judge.
January 10 , 2018 (PK)
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