Rajasthan High Court - Jodhpur
Shri Kuber Associates vs State Of Rajasthan on 17 May, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:20945]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 6330/2024
Shri Kuber Associates, Situated At C-57, Hanuman Nagar,
Khatipura, Jaipur (Rajasthan) Through Power Of Attorney Holder
Shri Giriraj Sharma S/o Shri Ram Gopal Sharma Aged About 38
Years, Dorvalon Ka Mohalla, Ward No. 10, Bamanwas, Sikar
(Rajasthan).
----Petitioner
Versus
1. State Of Rajasthan, Through Additional Chief Secretary,
Department Of Mines And Geology, Government
Secretariat, Jaipur
2. Directorate Of Mines And Geology Rajasthan, Through
The Director, Mines And Geology Department,
Government Of Rajasthan, Udaipur.
3. Office Of The Additional Director (Mines), Jaipur Range
Through The Additional Director (Mines), Jaipur.
4. Department Of Mines And Geology Sojat City, Through
The Mining Engineer, District Pali (Rajasthan).
----Respondents
For Petitioner(s) : Mr. Ravi Bhansali, Sr. Advocate
assisted by Mr. Ankur Mathur.
Mr. Yuvraj Singh Mertiya.
Mr. Vipul Dharnia.
Mr. Udit Mathur.
Mr. Mohammad Amaan.
For Respondent(s) : Mr. Mahaveer Bishnoi, AAG with
Mr. Gaurav Bishnoi.
HON'BLE DR. JUSTICE NUPUR BHATI
Order Reportable Reserved on: 09/05/2024 Pronounced on : 17/05/2024
1. The petitioner has preferred the instant writ petition seeking a direction to the respondents to start the period of Mining Lease (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (2 of 25) [CW-6330/2024] ('ML') from the date of grant of Consent to Operate ('CTO'). The petitioner has also sought direction to the respondents to execute supplementary ML qua the remaining area (area after reduction of area falling within Eco Sensitive Zone) and other requisite permissions CTE, CTO respectively. In the alternative, the petitioner so prayed that the petitioner may be allowed to carry on mining operations without reducing the area falling in Eco Sensitive Zone on furnishing the undertaking not to conduct mining operation in Eco Sensitive Zone.
2. The facts apposite for the purpose of disposal of this writ petition are that the excavation of mineral 'Bajri' in the State of Rajasthan was earlier governed by Rule 63 of the Minor Mineral Concession Rules, 1986 (Rules of 1986), whereby excavation of mineral Bajri was permitted by payment of royalty and permit fees at the check post of the State viz. Mining Department or a person working as an agent of the Mining Department through the royalty contracts. In pursuance of the directions issued by Hon'ble Apex Court in the case of Deepak Kumar v. State of Harnaya & Ors. : (2012) 4 SCC 629, the said practice was deprecated and it was directed that there shall be no excavation of Bajri without identifying the area for excavation the Bajri and giving it to lease holders, who after obtaining all necessary sanctions would excavate Bajri from river bed. In pursuance of the judgment passed by Hon'ble Apex Court in the case of Deepak Kumar (supra), the respondents amended the Rules of 1986 and the Rule 63 of the Rules was deleted and as per amended Rule 7, the ML for minor mineral Bajri was permitted by way of tender of auction.
3. The respondent State of Rajasthan, in accordance with the (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (3 of 25) [CW-6330/2024] amended Rules of 2012, identified 130 lease(s) and the same were put to auction through Notification dated 20.11.2012. The petitioner pursuant to aforesaid NIT applied and participated and the petitioner was declared highest Bidder. The Letter of Intent (LoI) came to be issued in favour of petitioner on 13.02.2013 (Annex.1). As per the LoI (Annex.1) issued in favour of petitioner, certain conditions viz. submitting of mining plan approved by the competent authority, obtaining of Environment Clearance (EC) from the Ministry of Environment & Forest and Climate Change ('MoEFCC') and financial security along with affidavits in terms of Rule 37 (j) of the Rules of 1986 were to be catered by the petitioner.
4. In the writ petition, reference of an order passed by Hon'ble Apex Court in SLP (Civil) No.34134/2013 has also been made, wherein a direction was issued that the persons who have submitted their applications before the MoEFCC could carry on mining operations on a Temporary Work Permit.
5. It is alleged that the petitioner applied for grant of Environment Clearance ('EC'), however, on account of lengthy and cumbersome process as also on account of issuance new instructions, the requisite EC could not be obtained. In the meanwhile, a Notification dated 21.06.2012 (Annex.2) came to be issued by the State Government, whereby it was declared that until the ML(s) as per the amended Rules of 2012 become fully effective, the procedure of excavation prevalent prior to amendment of the Rules, would continue. The said notification dated 21.06.2012 assailed by filing a PIL writ petition before this Court being D.B. Civil Writ Petition No.13189/2013 : Nature Club (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (4 of 25) [CW-6330/2024] v. State of Rajasthan, wherein a direction was sought that the State be restrained from permitting mining of sand without EC and without complying with the amendments. The aforesaid PIL petition came to be disposed of by this Court vide order dated 15.04.2013 (Annex.3). An application was filed by the State for extension of time, as the State was unable to implement the new Rules after expiry of period of six months. The said application however came to be rejected on 21.10.2013.
6. The order dated 21.10.2013 came to be challenged by the State of Rajasthan before the Hon'ble Apex Court and one Naveen Sharma, President of All Rajsathan Bajri Truck Operators Society by filing SLP(s) viz. SLP No.34134/2013 : State of Rajasthan & Ors. v. Nature Club and 34811/2013 : Naveen Sharma v. State of Rajasthan & Ors. In the aforesaid SLP(s), an interim order dated 25.11.2013 (Annex.4) came to be passed and excavation of mineral Bajri was permitted to 82 Lease Holders, who had applied for EC. The LoI Holders were being only allowed to excavate Bajri, however, the said was restricted to the cutoff date i.e. 28.02.2014, as the MoEFCC had undertaken to complete the process of grant of EXC within a period of three months.
7. Thereafter, in terms of directions issued by the Hon'ble Apex Court, the State Government granted temporary permission to all the applicants vide order dated 19.12.2013 (Annex.5), whereby it was directed that permission for excavation of mineral Bajri for the lease hold area was granted in view of LoI issued to the applicants as well as provided for the conditions to be abided by the LoI holders for preservation of fauna and flora. In pursuance of the order dated 19.12.2013 (Annex.5), the respondents executed an (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (5 of 25) [CW-6330/2024] agreement on 29.12.2013 (Annex.6), wherein the petitioner was granted lease for the period 29.12.2013 till 28.02.2014 in accordance with the terms and conditions under the order granting temporary work permit.
8. In the writ petition, it is alleged since the directions of the Hon'ble Apex were restricted to 28.02.2014, the State Government moved an application for extension of time, inasmuch as EC to be accorded to the applicants was not finalized and vide order dated 24.02.2014, the permission was extended up to 31.03.2014 while fixing the matter on 30.03.2014. Thereafter, on 27.03.2014, the Hon'ble Court after hearing the parties directed that the interim directions granting temporary permission to 82 LoI holders for excavation of Bajri in the lease hold area would continue till the Court hears the matter and pass further orders. Thereafter a supplementary agreement dated 31.03.2014 (Annex.7) came to be executed by the State Government in continuation of earlier agreement.
9. In the writ petition, it is alleged that while the petitioner was pursuing its application for grant of EC, the MoEFCC re-examined 70 Projects from the State of Rajasthan, where EC(s) were not granted and new condition of undertaking scientific replenishment study was imposed.
10. In SLP (C) No.34134/2013 : Nature Club of Rajasthan v. State of Rajasthan, the Hon'ble Apex Court passed an order dated 16.11.2017 (Annex.9) whereby mining activity undertaken by 82 LoI Holders till scientific replenishment study is undertaken and EC is granted came to be stopped. The Hon'ble Apex Court thereafter appointed Central Empowered Committee (CEC) to look (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (6 of 25) [CW-6330/2024] into the issue of river sand mining in the State of Rajasthan vide order dated 19.02.2020 (Annex.10). The CEC thereafter dealt with the issue of delay in granting the EC and the reasons thereof, found that demand of annual replenishment to grant EC was ill founded and the same would result in rampant illegal mining and made certain observations. The petitioner has annexed the copy of the report of CEC as Annex.11.
11. The petitioner thereafter furnished the replenishment study to the competent authorities on 14.10.2020 and thereafter EC was granted in favour of petitioner vide correspondence dated 03.02.2022 (Annex.13) with a condition to acquire permission from the National Board for Wildlife ('NBWL').
12. In the meanwhile, pursuant to order dated 03.06.2022 passed by Hon'ble Apex Court in Writ Petition No.202/1995, whereby it was directed that no mining lease shall be operated within 1 KM area of Eco Sensitive Zone, the petitioner submitted an application dated 30.09.2022 before the respondent authorities with a request that the area of its mining lease, falling under the Eco Sensitive Zone be reduced from the original area and for rest of the area, which is not in Eco Sensitive Zone, he may issued amended LoI. Exceeding on the request of the petitioner, the respondent No.4 found that out of 4280 hectare area, a total of 380.87 hectare area was falling within Eco Sensitive Zone and requested the respondent No.2 for issuing amended LoI qua remaining area i.e. 3899.13 hectare.
13. The respondents thereafter proceeded to issue sanction order in favour of petitioner for the dies-non period on 17.10.2022 (Annex.14). The sanction order was issued in favour of petitioner (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (7 of 25) [CW-6330/2024] for 13 months and 12 days from the date of handing over the possession of the lease. The sanction order also provided for set of conditions and pre-prequisites which were to be fulfilled by the petitioner. The petitioner was thus required to deposit annual dead rent, performance security, security deposit etc. within a period of three months from the date of issuance of the order. A stipulation was also raised that in case the petitioner fails to execute the agreement within three months, then the same shall be revoked after forfeiting the deposits made by the petitioner in relation to the lease. The petitioner executed the agreement on 09.03.2023 (Annex.15) and thereby catered to the pre-requisites by furnishing the required monetary aspects.
14. Since some of the area was falling into 10 KM radius of Eco Sensitive Zone, the requisite Consent to Operate could not be applied for the same, inasmuch it required permission of the NBWL. The petitioner thus submitted an application before the respondent authorities informing the same and sought reduction of the area falling within Eco Sensitive Zone from the mining lease area. Exceeding to the request of the petitioner, the Mining Engineer vide his letter dated 16.01.2024 (Annex.16) addressed to the Superintending Mining Engineer requesting that out of 4280 hectare area of the petitioner, 380.87 falls within Eco Sensitive Zone and thus approval for remaining area ad-measuring 3899.13 ha may be issued.
15. The petitioner in the writ petition has alleged that the Consent to Operate could not be applied without permission of the NBWL and the proposal for altering the area which remains after reduction of the area falling in the Eco Sensitive Zone was (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (8 of 25) [CW-6330/2024] preferred before the Board and the same is pending consideration before the authorities, whereas the period of the lease is in force without petitioner being able to carry out the excavation activities, which leads to mining lease of the petitioner as redundant and of no use.
16. It is averred in the writ petition that the respondents though have granted the mining lease to the petitioner for the dies-non period of 13 months and 12 days, for which ML has been executed on 06.02.2023, however, on account of non-grant of Consent to Operate for the remaining area, after reduction of area falling within Eco Sensitive Zone, the petitioner is unable to excavate the mineral, due to which the very period of lease will be expired.
17. The respondents are taking into consideration the time period of the lease from the date of agreement, wherein the petitioner is unable to excavate the mineral without obtaining the permission despite the fact the petitioner has been issued NOC by the Forest Department on 28.12.2023 (Annex.17).
18. The petitioner thus has essentially challenged the act and action of the respondents in counting the period of lease from the date of agreement i.e. from the date of handing over the possession of the lease.
19. Learned senior counsel for the petitioner vehemently submitted that the said action of the respondents in counting the period of lease from the date of agreement i.e. from the date of handing over the possession of the lease is arbitrary and irrational, inasmuch as the petitioner is only allowed to conduct the mining activities or excavate the mineral after obtaining EC (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (9 of 25) [CW-6330/2024] and other approvals from the authorities concerned, which would result in expiry of the lease itself.
20. Learned senior counsel for the petitioner submitted that the petitioner had applied before the NBWL for the permission, however, the same has not been granted. He further submitted that though an application for reducing the area which is falling in Eco Sensitive Zone has been filed, however, the same is also pending adjudication before the authorities concerned and, therefore, the petitioner could not be made liable for the delay.
21. Learned senior counsel for the petitioner also submitted that the area under the mining lease, situated in District Pali, Tehsil Marwar Junction, as mentioned in the agreement 29.12.2013 (Annex.6) measured 4280 hectares in total, while after the Notification of Rawali Tadgarh Sanctuary up to 1 km radius dated 13.04.2017 and Kumbhalgarh Wildlife Sanctuary up to 5 kms dated 18.06.2020 as ESZ, the petitioner duly applied for the EC and also wrote to the authorities to reduce the area spreading across the districts of Anaji ki Dhani, Kheda Kalyanpura, Guda Bhopat, Guda Himta, Golki, Jodkiya, Bansor, Halawar, Dhelpura, Rananadi, Jojawar and Dhanla measuring 380.87 hectares area. Learned counsel for the petitioner thus submitted that in the case at hand, had the authorities reduced the area, then there would have been no obligation upon the petitioner to seek CTO for the remaining area measuring 3899.13 hectares.
22. Learned senior counsel for the petitioner further submitted that it was fault on the part of the respondents since the sanction order had been granted in favour of the petitioner on 17.10.2022 (Annex.14) but the execution of the agreement took place on (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (10 of 25) [CW-6330/2024] 09.03.2023 which clearly demonstrates that it took the respondents six months to execute the sanction order dated 17.10.2022 (Annex.14) and thus the petitioner could not be held accountable for the delay.
23. The respondents have filed reply to the writ petition while denying the averments made by the petitioner. In the reply, the respondents have specifically alleged that conditions of the LoI being issued in favour of LoI Holders is required to be fulfilled within a period of one year from the date of issuance of the LoI, which the petitioner has not complied within the stipulated time of one year. As far as Condition No.2 of the LoI is concerned, the petitioner has failed to fulfill the said condition. The petitioner obtained the EC for 4280 hectare area vide letter dated 03.02.2022 from the MoEF and the same was submitted to the respondent by e-mail on 21.02.2022. The validity of the said EC was for a period of one year from the date of issuance of the same. In the reply, the respondents have alleged that pursuant to order dated 25.11.2023 passed by Hon'ble Apex Court in SLP (Civil) No.34811/2023, a Temporary Work Permit came to be issued in favour of petitioner vide order dated 19.12.2013 which was valid up till 28.02.2014 and thereafter the petitioner commenced the mining activities in the area from 29.12.2013. The said temporary work permit was also extended by the respondents till 31.03.2014 and thereafter the temporary work permit was extended till further orders. The respondents have also referred Notification dated 13.04.2017, whereby Eco Sensitive Zone of Rawali Tadgarh Sanctuary has been notified by the MoEF up to radius of 01 KM of the sanctuary. The respondents vide (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (11 of 25) [CW-6330/2024] order dated 17.10.2022 (Annex.14) had declared the period from 29.12.2013 to 28.1.2018 as dies-non period in the ML dated 17.11.2017 and considering the period from 17.11.2017 to 28.12.2018 (13 months and 12 days) conditional approval was issued for the period of 13 months and 12 days from the date of taking over the possession of the mining lease. The contract was accordingly executed on 16.01.2023 and registration was done on 09.03.2023. The respondents have thus averred that mining lease became effective for the dies-non period up to 13 months and 12 days i.e. from the date of registration of the agreement from 09.03.2023 to 20.04.2024. The respondents have further alleged that the possession of the mining lease has been taken by the respondents on expiry of the period on 20.04.2024.
24. The respondents have further alleged that the petitioner sent application vide e-mail dated 27.01.2023 informing therein that NOC for the LoI was issued by the Forest Department on 30.12.2022, wherein revenue village viz. Nayagaon falling within the LoI, and few Khasra(s) were falling within the radius of 05 KM from Kumbhalgarh (Eco Sensitive Zone) in pursuance of notification dated 18.06.2020 issued by the MoEF and the petitioner requested to execute the contract of mineral Bajri by leaving out the Khasra(s) of village Nayagaon from the Khasra(s) allotted under the LoI. The petitioner thereafter submitted application dated 27.01.2023 to the respondents to issue amended sanction order while excluding the Khasra Nos.147 (ad- measuring 3.3 hectares), 166 (ad-measuring 3.47 hectares) and Khasra No.212 (ad-measuring 3.51 hectares) total 10.31 hectares. Exceeding on the application, the respondent No.4 (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (12 of 25) [CW-6330/2024] issued letter dated 12.05.2023 tot he Director, Mines and Geology, Udaipur for making necessary amendment in the sanction order. The respondents issued a letter dated 04.09.2023 to the Forest Department for submitting its report and for conducting joint inspection. In the reply, the respondents have further alleged that the petitioner submitted an application seeking approval from National Board for Wildlife on 06.08.2015, however, information regarding grant of permission has not been communicated to the respondents. The petitioner failed to produce the copy of Consent to Operate issued by the Rajasthan State Pollution Control Board and the EC (after it being expired on 02.02.2023) qua the mining lease in question, which is the prerequisite as per the Rules. Further, as per Rule 25 (3) of the Rules of 2017, there is no provision of accepting the part-surrender of mining lease granted for mineral Bajri and the petitioner has not placed anything on record to substantiate the fact that it had earlier applied for part surrender of the lease area.
25. While referring the order dated 03.06.2022 passed by Hon'ble Apex Court in Writ Petition No.202/1995, learned AAG submitted that prior approval of the NBWL was necessary if the mining lease falls within the periphery of National Parks, Sanctuaries, Biosphere Reserves, Wildlife Corridors, Tiger/Elephant Reserve. The petitioner failed to get the requisite permission from the National Board of Wildlife and also failed to apprise the status of the application, which according to petitioner was pending consideration with National Board of Wildlife. The petitioner though was aware of the said fact that without securing prior permission from the National Board of Wildlife in pursuance (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (13 of 25) [CW-6330/2024] of EC, and, therefore, in absence of requisite permission from the National Board of Wildlife, the consent to operate could not be issued in favour of petitioner. It is further alleged in the reply that as per the provisions of Rule 9 (4) of the Rules of 2017, the period of mining lease can be extended equal to the period for which the mines remained closed due to any court order and the dead rent for such period shall not be chargeable. It is clarified in the reply that where a lease remains closed due to any fault on the part of the lessee or any part of the lease was closed, the period shall not be extended and the dead rent shall be chargeable for such period. A reference of CEC report submitted before the Hon'ble Apex Court has also been made in the reply and it is alleged that the period of lease including the period availed under the temporary work permit shall not exceed for more than five years. The respondents have also averred in the reply that the NOC obtained by the petitioner from Forest Department is not equivalent to the permission issued by the National Board of Wildlife. The respondents have reiterated that the petitioner has failed to procure prior permission from the National Board of Wildlife and further has not placed on record anything showing present status of its application before the National Board of Wild. Thus, in absence of the requisite permission from the National Board of Wildlife, the consent to operate for the mining lease was not issued.
Thus, by filing the reply to writ petition, the respondents have prayed for dismissal of the writ petition.
26. The petitioner has also filed rejoinder to the reply while reiterating the submissions made by it in the writ petition. In the (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (14 of 25) [CW-6330/2024] rejoinder, the petitioner has alleged that the lease was not closed due to fault of the petitioner, but was closed since the petitioner already had applied for requisite permission from the NBWL, however, the same was not granted on account of laxity of the State Government, though the petitioner had all possible efforts to process the statutory clearance. The petitioner has also averred that since the area under the mining lease falling in Eco Sensitive Zone was not reduced, it resulted in loss of valuable time of the lease and thus the delay could not be attributed to the petitioner. In the rejoinder, the petitioner tried to clarify the delay occasioned in obtaining the EC and attributed the said delay to MoEFCC and relied upon the report of the CEC. The petitioner had applied for permission from the National Board of Wildlife for altering the area, which remains after reduction of the area falling in Eco Sensitive Zone, however, the application of the petitioner is pending consideration before the authorities. Further, the petitioner submitted a communication dated 14.10.2022 (Annex.19) requesting the respondent No.4 that some part of the mining lease falls under the restricted area of Eco Sensitive Zone, therefore, revised LoI be issued in favour of petitioner, however, no action was taken on the application of the petitioner. The petitioner thereafter again requested the respondents on 06.01.2023 (Annex.20) to issue amended sanction letter for the area, which remains after reducing the area falling in Eco Sensitive Zone.
27. An additional affidavit has also been filed by the petitioner. Alongwith the additional affidavit, the petitioner has produced copy of Office Memorandum dated 08.08.2019 as Annex.A, which (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (15 of 25) [CW-6330/2024] inter-alia provide the procedure for consideration of development projects located within 10 KM of National Park/Wildlife Sanctuaries seeking EC under the provisions of Environmental Impact Assessment (EIA) Notification, 2006. The petitioner has also submitted a copy of letter dated 16.07.2020 (Annex.B) issued by the MoEFCC, wherein it has been clarified that proposals involving project/activity located within the notified ESZ (not being draft notification) and listed in Schedule of the EIA and requiring environmental clearance, prior clearance from the Standing Committee of the National Board of Wildlife will be required. Thus relying upon the clarification dated 16.07.2020, it is averred that if the respondents accept the request of the petitioner to reduce the area from the mining lease which falls within Eco Sensitive Zone, the petitioner would not require prior permission from the National Board of Wildlife and thus consent to operate can be obtained enabling the petitioner to carry on mining operations.
28. A reply to rejoinder has been filed by the respondents raising certain preliminary objection with regard to documents filed alongwith rejoinder, which were not the part and parcel of writ petition and the averments made in rejoinder have been denied. In the reply to rejoinder, the respondents have reiterated that as per provisions in second proviso to Rule 25 (3) of the Rules of 2017, part surrender of mining lease for mineral Bajri is not permissible. Prior to execution of the lease agreement dated 16.01.2023, the petitioner was well aware of the conditions and while agreeing with the conditions the agreement was executed without there being any protest. Even if the petitioner was having any grievance with the conditions, the petitioner would not have (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (16 of 25) [CW-6330/2024] entered into the agreement dated 16.01.2023 and get it registered on 09.03.2023. The petitioner has filed the petitioner after a delay of one year from the date of execution of the lease agreement while not availing the remedies available. An objection of not impleading the necessary and proper party in the writ petition viz. Ministry of Environment & Forest and Rajasthan State Pollution Control Board has also been raised, inasmuch as the delay in issuance of requisite permission viz. Consent to Operate has been attributed to these authorities.
29. Learned AAG vehemently submitted that without complying with the necessary statutory procedural permissions/requirements, the petitioner cannot be permitted to commence the mining activities pursuant to mining lease being issued in its favour. It is submitted that the minor mineral's mining lease operating in the State of Rajasthan is governed by the Rules of 2017. He further submitted that the petitioner has failed to submit permission from the National Board of Wildlife for the mining lease and the petitioner has also not produced the Consent to Operate issued by the Rajasthan State Pollution Control Board and the EC (after it being expired on 02.02.2023) qua the mining lease, which is mandated as per the Rules. Learned counsel for the respondents also submitted that the period of the mining lease had come to an end on 20.04.2024 and the possession of the mining lease has been taken over by the State. Learned counsel for the respondents further submitted that the mining lease qua mineral Bajri was granted for five years, which is in consonance with the recommendations of the CEC, more particularly Recommendation No. 'K', which has duly been approved by the (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (17 of 25) [CW-6330/2024] Hon'ble Apex Court and, therefore, the period of mining lease cannot be extended beyond five years by the respondents.
30. Learned AAG further submitted that the petitioner has miserably failed to place on record the present status of the application submitted by it before the National Board of Wildlife for seeking the requisite permission. He also submitted that as per Rule 25 (3) of the Rules of 2017, there is no provision of accepting the part-surrender of mining lease granted for mineral Bajri and the petitioner has not placed anything on record to substantiate the fact that it had earlier applied for part surrender of the lease area. Learned AAG submitted that the dies-non period was effective from 17.11.2017 to 28.12.2018 and considering the said period of mining lease (i.e. 13 months and 12 days), the conditional approval subsequently was issued as per the conditions mentioned under the Rules of 2017. Learned counsel for the respondents submitted that as per the verdict of the Hon'ble Apex Court dated 03.06.2022, the permission of the National Board of Wildlife was sine quo non, if the mining lease falls within the Eco Sensitive Zone periphery of National Parks/Sanctuaries, Biosphere Reserves, Wildlife Corridors, Tiger/Element Reserve. Learned counsel for the respondents thus submitted that no mining activities could be permitted until and unless the petitioner procure the requisite permission from the National Board of Wildlife. He further submitted that the petitioner has not produced the copy of the consent to operate issued by the Pollution Control Board or the EC after it being expired on 02.02.2023 qua the mining lease in question, which is mandatory as per Rules.
(Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (18 of 25) [CW-6330/2024]
31. Learned AAG further submitted that the petitioner has not submitted any application as per Rule 25 (3) of the Rules of 2017. Learned counsel for the respondents while reiterating his submissions made in the reply submitted that since after expiration of the mining lease, the possession of the mining lease has already been taken by the respondents on 20.02.2024, nothing survives in the writ petition and, therefore, the writ petition be dismissed.
32. Thus, by filing the reply to writ petition, the respondents have prayed for dismissal of the writ petition.
33. I have considered the submissions made by counsel for the parties at length and have perused the material available on record.
34. This Court finds that despite the fact that 380.87 hectares area spreading across the districts of Anaji ki Dhani, Kheda Kalyanpura, Guda Bhopat, Guda Himta, Golki, Jodkiya, Bansor, Halawar, Dhelpura, Rananadi, Jojawar and Dhanla out of the 4280 hectares area sanctioned to the petitioner, was falling within the ESZ, as is evident from the communication made by the petitioner dated 16.01.2024 (Annex.16) addressed to the Superintending Mining Engineer and therefore, in compliance with order passed by the Hon'ble Apex Court in the case of Naveen Sharma v. State of Rajasthan [Special Leave to Appeal (C) No(s). 34811/2013 decided on 16.10.2017] (Annex.9), the petitioner applied to the NBWL in the year 2022, however upon perusal of the application made by the petitioner to the NBWL, it is seen that against the heading at S.No. (xix) titled 'Project Area inside Ecologically Sensitive Zone (in ha.)' and heading at S.No. (xx) 'Project Area (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (19 of 25) [CW-6330/2024] outside Ecologically Sensitive Zone (in ha.)', the answer is mentioned as '0' (zero), which shows that the petitioner was intending to proceed with the mining activity without having permission from the NBWL and also tried to mislead NBWL about the fact that there was no area falling under the ESZ on petitioner's land sanctioned for mining.
35. It is important to note that in pursuance to the directions of Hon'ble Apex Court in In Re: T.N. Godavarman Thirumulpad v. Union of India [Writ Petition No. 202/1995 decided on 03.06.2022], that in cases where ESZ has already been prescribed and the area falls within 1 km of the said ESZ, then the area shall be maintained until final decision is taken by the national Park or Wildlife Sanctuary. The relevant para is reproduced as under:
"(b) In the event, however, the ESZ is already prescribed as per law that go beyond one kilometer buffer zone, the wider margin shall prevail. If such wider buffer zone beyond one kilometer is proposed under the statutory instrument of particular national park or wildlife sanctuary awaiting final decision in that regards, till such final decision is taken the ESZ Covering the area beyond one km proposed shall be maintained."
Thus, in the absence of permission from the NBWL, the respondent could not have permitted the petitioner to undertake mining activities. Furthermore, the petitioner's communication dated 16.01.2024 (Annex.16) requesting the respondents to reduce the mining area to 3899.13 hectares from the total mining area 4280 hectares, sanctioned to him while stating that upon the said reduction, permission of NBWL is not required and the petitioner can proceed with the mining activities is not acceptable as in the light of the directions of the Hon'ble Apex Court in the (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (20 of 25) [CW-6330/2024] case of In Re: T.N. Godavarman Thirumulpad (supra.), wherein it is mandatory to take permission from the NBWL, where the part of area is falling under ESZ. Further, it is also seen that there is no such provision under the Rules of 2017, demonstrated by the petitioner or direction issued by the Hon'ble Apex Court in the case of In Re: T.N. Godavarman Thirumulpad (supra.) under which the respondent could have reduced the mining area falling within the ESZ, and the petitioner without taking permission from the NBWL could have been permitted to undertake mining activities.
36. This Court also observes that the petitioner in compliance of condition 2 of the LOI, obtained EC vide letter dated 03.02.2022 (Annex.13) from the MoFCC, which was submitted to the respondents vide email dated 21.02.2022. According to specific conditions mentioned in the said letter, the validity of the EC was one year from the date of issuance of the EC, i.e. from 03.02.2022 to 03.02.2023 thus, it is seen that the petitioner is neither in the possession of an EC after the expiry of the earlier EC, nor any document has been placed on record which shows that the EC was renewed for the said mining area. The relevant condition of the letter of grant of EC dated 03.02.2022 (Annex.13), reads as under:
"A. Specific Conditions xxxx
(xii) .... The permissible minable material of 11.2 lakh TPA (ROM) will be valid till one year from the day of issuance of the EC."
In the light of the Letter for the grant of EC dated 03.02.2022 (Annex.13), the EC expired on 03.02.2023 itself and thus (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (21 of 25) [CW-6330/2024] thereafter there was no further EC given to the petitioner and therefore in the absence of renewal of EC also, the petitioner could not have been permitted to undertake mining activities.
37. It is also seen that by way of the Notification dated 16.08.2022, the Rajasthan Mining Mineral Concession Rules, 2017 ('Rules of 2017') have been amended by way of inserting Rule 9(3A). Rule 3A reads as under:
"(3A) Notwithstanding anything contained in sub-rule (1), (2) and (3), the period of existing mining leases other than the leases of bajri (in river sand and in khatedari land except Bikaner district) may be further extended upto 31st March, 2040 subject to following conditions:-
(i) An online application for extension of mining lease period shall be submitted to the Mining Engineer or Assistant Mining Engineer concerned with a non refundable fee of rupees ten thousand;
(ii) Lessee has not carried out any illegal mining activities during last three years or the case is compounded;
(iii) The dead rent of the mining lease for extended period shall be as per Schedule III: Provided that the dead rent so calculated shall not exceed twice the existing dead rent and if exceed, shall be limited to the extent of twice of the existing dead rent;
(iv) Advance payment of premium amount at the rate of annual dead rent of the area as per clause (iii) for each year of extension or part thereof sought by the lessee; and
(v) The competent authority for disposal of application for extension of mining lease period shall be same as provided in rule 16."
In accordance with the directions of the Hon'ble Apex Court in the case of In Re: T.N. Godavarman Thirumulpad (supra), necessary amendments were made in the Rules of 2017 by permitting an online application for extension of the Mining Lease to be submitted to the Mining Engineer. Furthermore, under Rule 9(4) of the Rules of 2017, the period of lease can be extended equal to the period for which the mines have remained closed on account of any court order and the dead rent for the said period (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (22 of 25) [CW-6330/2024] shall not be chargeable, and there is a proviso to the Rule 9(4) of the Rules of 2017 that, where such lease has remained close due to any fault on the part of the lessee or where only part of the said lease has been closed, then such period shall not be extended and the dead rent shall be chargeable for such period. Rule 9(4) of the Rules of 2017 reads as under:
"(4) Period of lease may be extended equal to the period for which the mines remained closed (dies-non) due to any court order and dead rent for such period shall not be chargeable:
Provided that where lease remains closed due to any fault on the part of the lessee or where part of lease was only closed, the period shall not be extended and dead rent shall be chargeable for such period."
The mining lease remained closed on account of the fact that the petitioner did not fulfill the mandatory condition of taking permission from the NBWL and thus, in the light of the proviso to Rule 9(4) of the Rules of 2017, the dies-non period cannot be extended beyond the period of 13 months 12 days due to the fault of the petitioner.
It is also seen that, in the instant case, undoubtedly, the respondent by taking into consideration the provisions of Rules of 2017, have issued the sanction order dated 17.10.2022 (Annex.14), and granted permission to the petitioner while considering the dies-non period from 17.11.2017 to 28.12.2018. Upon perusal of the sanction order dated 17.10.2022 (Annex.14), it reveals that a mandatory condition has been mentioned under the heading 15 'vU; 'krsZa', which is reproduced hereunder:
"8. ekuuh; loksZPp U;k;ky; }kjk I.A. No.1000 OF 2003 esa ikfjr vkns'k fnukad 03-06-2022 ds Øe National Parks, Sanctuaries, Biophere Reserves, Wildlife Corridors, (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (23 of 25) [CW-6330/2024] Tiger/Element Reserve esa ls 01 fdyksehVj dh ifjf/k esa ugha vkus dh lwpuk NBWL ls izkIr gksus ds mijkUr gh iV~Vs/kkjh }kjk [kuu iV~Vk {ks= esa [kuu dk;Z fd;k tkosxkA"
38. It is also seen that vide Notification dated 13.04.2017, ESZ of Rawali Tadgarh Sanctuary had been notified by the MoEFCC up to the radius of 1 km and it is also observed that some area of the petitioner's sanctioned land for the mining lease was overlapping with the said ESZ of the Rawali Tadgarh Sanctuary. Thereafter, the respondent vide sanction order dated 17.10.2022 (Annex.14) had declared the period from 29.12.2017 to 28.12.2018 as the dies- non period in the mining lease granted to the petitioner dated 17.11.2017, thus, further conditional approval was given for 13 months and 12 days from 17.11.2017 to 28.12.2017, from the date of taking over the possession of mining lease. Subsequently, the contract, in accordance with the sanction order dated 17.10.2022 (Annex.14) was executed on 16.01.2023 and the registration was done on 09.03.2024 and therefore, the said mining lease became effective from the date of registration of the agreement, and the dies-non period started from 09.03.2024 to 20.04.2024. Thus, the contention of the petitioner that the respondents acted in an arbitrary manner while taking the possession of the mining lease of the petitioner, is not acceptable since it was only after the expiry of the dies-non period, i.e. 20.04.2024, that the respondents proceeded with taking the possession of the mining lease.
39. This Court further observes that the contention of the learned counsel for the petitioner that the respondent's action of (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (24 of 25) [CW-6330/2024] reckoning the period of lease from the date of agreement is arbitrary, is devoid of merit as such condition was very much present in the sanction order dated 17.10.2022 (Annex.14) and the condition has not been challenged by the petitioner in the writ petition. The petitioner after going through the conditions laid down in the sanction order dated 17.10.2022 (Annex.14) had executed the agreement on 09.03.2023. The relevant condition in the sanction order dated 17.10.2022 (Annex.14) mentioned under the heading 15 'vU; 'krsZa', which is reproduced hereunder:
"6 पट्टाधारी को पर्यावरण मंत्रालय द्वारा जारी पत्र दिनांक 03-02-2022 (पर्यावरण क्लीयरेन्स) में अंकित्त शर्तों / निर्देशों की पूर्ण पालना सुनिश्चित करनी होगी तथा इसके अतिरिक्त पर्यावरण मंत्रालय द्वारा सगय-समय पर जारी होने वाले निर्देशों की पालना करनी होगी।
7 पट्टा संविदा पंजीयन के उपरान्त संबंधित प्रदूषण नियंत्रण मण्डल से कन्सेन्ट दूँ आपरेट प्राप्त कर प्रस्तुत करना होगा तभी खनन कार्य की अनुमति जारी की जावेगी।"
It is thus seen that admittedly the possession can be handed over to the lessee once the agreement has been entered and since the said agreement has been executed on 09.03.2024, therefore the commencement of the dies-non period is rightly reckoned from 09.03.2023.
40. Undoubtedly, the petitioner could not undertake mining activities due to the order of the Hon'ble Apex Court in the case of Deepak Kumar v. State of Haryana & Ors. [(2012) 4 SCC 629], wherein mining has been stopped. However, a bare perusal of the Rule 9(4) expressly lays down that if the lease remains closed on part of the fault of the lessee or where only the part of the lease was closed, the period shall not be extended. Thus, in the light of the Rule 9(4) of the Rules of 2017, the Sanction Order (Downloaded on 20/05/2024 at 08:39:42 PM) [2024:RJ-JD:20945] (25 of 25) [CW-6330/2024] was issued to the petitioner dated 17.10.2022 (Annex.14), and looking into the fact that no permission has been granted in favour of the petitioner by the NBWL and also the EC had expired on 03.02.2023, the petitioner cannot be permitted to operate the mining lease after the expiry of dies-non period, which came to an end on 20.04.2024.
41. Thus, in the light of the above discussion and on account of the fact that the petitioner is not able to fulfill the pre-requisites for obtaining the consent to operate, the petitioner could not have been permitted to carry out mining activities in the said area beyond the dies-non period, and therefore, the respondents have rightly taken over possession over the mining lease of the petitioner.
42. Therefore, no interference is called for by this Court. The writ petition is dismissed. Stay Petition and other misc. application, if any pending, shall also stand disposed of.
(DR. NUPUR BHATI),J Reserve-DJ/-
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