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31. State of Rajasthan, as noticed above, had amended its rules and particularly introduced Rules 37P, 37Q, 37R, 37S, reference to which would be necessary. Rule 37P provided for grant of short term permits for mining in an area of less than 5 hectares.

Association of lessees could, through recognised persons, submit Environment Management Plan to the District Level Environmental Committee for approval. The association was to be formed within three months from declaration of cluster. Under this, various persons would become Members of the association and apply for cluster mining. Even a person falling within a cluster was deemed to be a member of the association. 37R provided for the composition of the District Level Environmental Committee. Environment Management Plan had to be approved by such Committee, which was required to be implemented in terms of Rule 37S. This was to provide environmental safeguards which were to be implemented by the holders of the short term permits and the association. According to Respondent No. 1, the lessee, he had complied with all these requirements and as per Government practise, clusters were formed by the State Government and Environment Management Plan was approved by the District Environmental Committee. However, Respondent No. 1 also submits that, during the operation of the orders of the Tribunal, he had applied for obtaining Environmental Clearance. The Rajasthan State Pollution Control Board, vide its letter dated 31st October, 2013, also directed Respondent No. 1 that if they wished to increase the production after 9th September, 2013, they must obtain Environmental Clearance. It is the stand of the Respondents that ToR has been issued by SEIAA and public hearing has been done on 27th-28th August, 2014 and that they are awaiting grant of Environmental Clearance. According to Respondent No. 1, the Notification dated 9th September, 2013, is not applicable to the lease as it operates only prospectively.

68. State of Rajasthan has also amended its Rules after the judgment of the Hon'ble Supreme Court in Deepak Kumar (supra). Rajasthan Minor Mineral Concession Rules, 1986 were amended by Notification dated 3rd May, 2012. Under these Rules, there are three most noticeable aspects. First relates to permission for carrying on mining activity in an area of less than 5 hectares, that too without obtaining the Environmental Clearance from SEIAA/MoEF. It has created District Level Environmental Committees to whom application of Environmental Clearance is to be moved and which has to recommend grant/refusal of such clearances. It has permitted cluster-mining by stating that an Environmental Management Plan could be submitted for such cluster mining and permits could be given for an area of less than 5 hectares. The short-term permit holders of the lease in clusters were required to form an association and file applications along with the Environment Management Plan to the District Committee for approval in terms of Rule 37P. Under proviso to this Rule, the permit holders of short-term permits within the boundary of the cluster after formation of the association will be deemed to be members of the association. All these three issues are not in conformity with the law in force and the judgment of the Hon'ble Supreme Court. Secondly, they also suffer from the infirmity of imposing obligations on a person who may not be desirous of becoming a member of the association within the cluster boundaries. In our considered view, the 'deeming fiction' contained in proviso to Rule 37Q would not stand the scrutiny of law. It is in fact impractical as well as unsustainable. This would encourage what the Hon'ble Supreme Court has specifically discourage in the case of Deepak Kumar (supra) that persons carrying on mining activity should not be permitted by creating smaller segments of the areas of the mining activity and then forming a cluster or even without forming the clusters carrying on the mining activity degrading the environment and ecology of the area. The Rules amended by the State of Rajasthan thus, are not in line with the dictum of the Hon'ble Supreme Court and even the Notifications issued by the MoEF including the Notification of 2006.

71. The Hon'ble Supreme Court had permitted preparation of Mining Plan primarily with the object of providing for reclamation and rehabilitation of the mined out area. It was to deal with progressive mine closure plan and post mined land of use. The Judgment of the Hon'ble Supreme Court had also dealt with cluster mining approach for small size mines. The purpose of adopting cluster approach with reference to small mine leases was to take care of preparation of Environmental Management Plan in clusters of mines, where the mining activity was being carried out in smaller areas. The Hon'ble Supreme Court accepted the recommendation of MoEF in regard to the above. The Hon'ble Supreme Court specifically noticed, what was pointed by the CEC to examine, whether there has been an attempt to flout the Notification of 2006 by breaking of homogenous area into pieces of less than 5 hectares. The Hon'ble Supreme Court upon taking note of the recommendations of MoEF which were passed on technical, scientific and environmental grounds, had directed the State Governments to implement the recommendations. They were directed to get the Mining Plan prepared as afore-noticed. Besides all these, the Hon'ble Supreme Court had directed that lease of minor minerals, including their renewal, for an area of less than 5 hectares is granted by the said Union Territories/State only after getting Environmental Clearance from the MoEF.

50. The report of the Core Committee referred to in the order of the Supreme Court in Deepak Kumar's case, had recommended that the minimum size of mine lease should be 5 hectares. The preparation of comprehensive mine plan for contiguous stretches of mineral deposits by the respective State Government may also be encouraged and may be suitably incorporated in the Mineral Concession Rules, 1960 by the Ministry of Mines. This recommendation was made after noticing that in Rajasthan, the minimum limit for a lease is one hectare and the maximum area for permit is 50x50 mtrs. The recommendation was made to bring uniformity, which has not been considered in the amended Rules. The State of Rajasthan has also failed to consider the desirability under clause 4.4. of the report of the Core Committee. The desirability to adopt cluster approach was recommended in case of smaller mine leases being operated presently and not for fresh grant. Further, the clusters were recommended to be provided with processing/crusher zones for forward integration and minimizing excessive pressure on road infrastructure, with further emphasis that the respective State Governments/Mine Owners Associations may facilitate implementation of Environmental Management Plans in such cluster of mines. The State Government has in complete violation of the recommendations adopted approach of cluster of mines for the purpose of preparing Environmental Management Fund to be implemented by the Association itself without any safeguards.