IN THE HIGH COURT OF RAJASTHAN AT JODHPUR
D.B. Civil Writ Petition No. 16072/2019
Decided On: 29.09.2021
Sangharsh Sewa Samiti
Vs.
State of Rajasthan and Ors.
Hon'ble Judges/Coram:
I. Mahanty, C.J. and Goverdhan Bardhar, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Gopal Lal Acharya
For Respondents/Defendant: Rekha Borana, AAG, Saransh Vij, Sandeep Shah, AAG, Pratyushi Mehta, Abhimanyu Singh, Rajesh Parihar, Manoj K. Singh, Ramit Mehta and Tarun Dudia
JUDGMENT
I. Mahanty, C.J.
1. By way of present writ petition filed in the nature Public Interest Litigation, the petitioner has prayed for the following reliefs:-
(a) by an appropriate writ, order or direction, the respondent authorities may be directed to cancel the Patta No. 631/2005 issued to respondent No. 5 for allotment of 343.4317 hectare of Charagah land in villages Samodi, Dariba, Pansal, Malola, Suras and;
(b) the respondents may further be directed to stop mining activities in the nearby area of villages Samodi, Dariba, Pansal, Malola, Suras of Bhilwara District and;
(c) the respondents may further be directed to reconstruct each and every house which is damaged due to mining activities and blasting by the respondent No. 5 or pay the actual cost of their houses as compensation to the each and every owner of house whose houses have been damaged.
(d) the respondents may further be directed to repair the public places like Temples, Masjid, Roads, Govt./Semi Govt. buildings and any other building or structures which have damaged due to illegal mining activities and blasting by the respondent No. 5.
(e) the respondent authorities may be directed to constitute a committee for the evaluation of the losses mentioned in para (d) and (e) above and according to the recommendation of committee the actual cost of loss suffered by the citizen may be allowed to them alongwith interest @18% per annum.
(f) heavy penalty may be imposed on the respondent No. 5 and respondents may be directed to recover all the losses as mentioned in para (c), (d) and (e) above from respondent No. 5 company.
(g) Any other order, which this Hon'ble Court considers just and proper, may kindly be passed in favour of the petitioner.
2. Heard learned counsel appearing for the respective parties.
3. Learned counsel appearing for the petitioner-Society submitted that respondent Nos. 1 and 2 allotted a land in Villages Pur Malola, Samodi, Dariba, Suras, which was reserved as 'Charagah' land in the revenue record, to respondent No. 5- M/s. Jindal Saw Limited for mining activities on lease for a period of 30 years, but no land in lieu of said land was allotted to these villages, which is contrary to the provisions of the Rajasthan Tenancy Act, 1955 (for short, 'the Act of 1955'). It was submitted that vide letter dated 06.08.2009 (Annexure-3) issued by the respondent No. 1-State of Rajasthan, the District Collector, Bhilwara was informed that government sanction has been granted to respondent No. 5 for mineral, iron and mining activities in the urban area of Bhilwara Nagar Parishad as well as concerned villages, therefore, 'No Objection Certificate' be issued in favour of respondent No. 5. It was further submitted that respondent No. 1 thereafter issued a letter dated 16.07.2010 (Annexure-4) directing the District Collector, Bhilwara to grant 'NOC' to respondent No. 5 in relation to Mining Patta No. 631/2005 in village Samodi, Dariba, Pansal, Malola and Suras for undertaking mining activities, as per Rule 7(2) of the Rajasthan Tenancy Act, 1955. District Collector, Bhilwara was also directed to ensure compliance of government sanction dated 30.04.2010, vide which the Secretary, Revenue (Group-3) Department, Rajasthan, granted no objection to respondent No. 5 for 334.4317 hectares of Gochar land comprising of land falling in Village Samodi, Dariba, Pansal Malola and Suras for mining activities. Thereafter, vide order dated 16.11.2010 (Annexure-5), respondent No. 5 was granted mining patta under Rule 22(1) of the Mining Rules, 1960 for mining of gold, silver, led, zink, copper, iron, cobalt, nickel and associated minerals in village Dedwas Tehsil & District Bhilwara.
4. It was further submitted that the members of the petitioner-Society have submitted a representation to the District Collector on 13.09.2018 with a request that the agreement dated 05.10.2011 regarding filling of two water tanks of the village by drinking water was executed between respondent No. 5 and the Municipal Corporation, Bhilwara, but the same has not been executed till date. Further, the Chief Executive Officer, Rajasthan Board of Muslim Wakf also wrote a letter dated 24.08.2017 (Annexure-7) to the District Collector, Bhilwara asserting that due to illegal mining activities by respondent No. 5, the roof and walls of Dargah Katar Peer Sahab fell down and as such, a request was made to grant compensation as well as to reconstruct the Dargah. Learned counsel submitted that the respondent No. 5 is carrying on the mining activities since 2010 and due to blasting, religious places buildings, residential houses, govt. buildings and the roads have been damaged and in the circumstances, the Sub Divisional Officer, Bhilwara vide its letter dated 10.09.2018 (Annexure-8), requested the District Collector, Bhilwara to issue directions to stop the illegal mining activities by respondent No. 5. Furthermore, it was submitted that as per the report of the Rajasthan State Pollution Control Board dated 30.08.2019, it revealed that environment of these villages is at high risk.
5. Learned counsel further submitted that the respondent No. 5 was supposed to keep safety and security of the nearby villages while conducting blasting and mining activities, but due to its negligent conduct, the poor villagers have suffered heavy financial loss and their lives are in danger. The petitioner-Society submitted several representations and served legal notices in regard to the above illegal mining activities and blasting by respondent No. 5, but no heed was paid to the same and, therefore, the petitioner was constrained to file the present PIL petition. A prayer has, therefore, been made to cancel the patta issued to respondent No. 5 and to direct the respondents to immediately stop the mining activities in the nearby area of villages Samodi, Dariba, Pansal, Malola and Suras in Bhilwara District as well as to grant other reliefs, as quoted hereinabove.
6. On the other hand, learned AAG appearing on behalf of respondent Nos. 1 and 2 while controverting the submissions advanced on behalf of the petitioner, contended that vide letter dated 29.04.2010, no objection was granted in favour of respondent No. 5 for undertaking mining activities in villages Samodi, Dariba, Pansal, Malola and Suras. She referred to the letter dated 16.07.2010 of the Revenue Department, Rajasthan, whereby a clarification was issued to the District Collector, Bhilwara with regard to setting apart of alternate gochar land. In this regard, she submitted that as per Rule 7(2) of the Rajasthan Tenancy (Government) Rules, 1955, if alternate land is available to be set apart as gochar, then only the same is to be done. She referred to Rule 7 of the Rules of 1955, which reads as under:-
7. Allotment or setting apart of pasture land. - (1) The Collector may, in consultation with the Panchayat, change the classification of any pasture land, as defined in sub-section (28) of Section 5 of the Act or any pasture land set-apart under Section 92 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956), as unoccupied culturable Government land (Sawai Chak), for allotment for agricultural or any non-agricultural purposes:
Provided that in case where the area of the land sought to be so allotted or set-apart exceed 4 hectares, the Collector shall obtain permission of the State Government:
Provided also that any such land, falling within the boundary limits of the Jaipur Region as defined in the Jaipur Development Authority Act, 1982 (Act No. 25 of 1982) or within the periphery of 2 kms. of a municipality, shall not be allotted except for the purpose of a public utility institution or for expansion of abadi.
(2) Where classification of any pasture land is changed under sub-rule (1), the Collector may set-apart an equal area of unoccupied culturable Government land, if available, as pasture land in the same village."
7. She submitted that pursuant to the said clarification dated 16.07.2010, mining patta was issued in favour of respondent No. 5 vide order dated 16.09.2010 (Annexure-A/1/3).
8. It was further submitted that vide circular dated 17.09.2013, it was notified by the State Government that no proposal for allotment of mining area on gochar land would be considered by the State Government. Further, vide notification dated 31.05.2017, an amendment in Rule 7 of the Rules of 1955 was introduced and new proviso to sub-rule (1) was inserted, whereby it was provided that any pasture land would not be allotted for mining purposes without prior permission of the State Government. The said allotment was also subject to the condition of the applicant surrendering equal area of khatedari land in favour of the State Government in the same village or nearby village within the same panchayat and has deposited development charges for the development of such surrendered land as pasture land. It was then submitted that vide circular dated 07.07.2017, earlier circular dated 17.09.2013 and all other previous circulars were withdrawn directing that for the purpose of allotment of pasture land for mining, action may be taken in terms of the provisions of Rule 7 of Rules of 1955. Vide another Notification dated 04.08.2018, an amendment was again introduced in Rule 7 of the Rules of 1955 providing that if the applicant is not able to surrender khatedari land in the same village or nearby village within the same panchayat, the equal area of khatedari land may be surrendered in the nearby village of adjoining panchayat and if the land is not available even in the adjoining panchayat for such purpose, it may be surrendered in exceptional cases from the other panchayat of the district.
9. It was also submitted that vide circular dated 5.10.2018, the State Government issued directions regarding the size of khatedari land parcels to be set apart as pasture land and vide circular dated 23.12.2019, it was provided that it would be incumbent for the mining lease holder to make the strict compliance of the Rules of 1955 i.e. to ensure the surrender of khatedari land in compensation and to deposit the development charges.
10. Learned counsel appearing on behalf of respondent No. 4 while raising preliminary objection has submitted that not even a single allegation has been levelled against respondent No. 4 and the writ petition suffers from vice of misjoinder of party. It was further submitted that the land was given to respondent No. 5 to establish the sewerage treatment plant on the lease basis and condition No. 17 of the agreement provides that in case of lesser rain, cleaned treated water will be given to two ponds of the suburban area Pur but there is no such condition in the agreement that any drinking water will be made available by way of filling of any tanks. A prayer has, therefore, been made to dismiss the writ petition.
11. Learned Counsel appearing on behalf of respondent No. 5 submitted that in the instant petition, notices were issued to the respondents to the limited extent of alleged violation of condition No. 17 of the agreement executed between respondent No. 4 & 5, whereas no such relief is sought for by the petitioner so far as the said condition is concerned. There exists no cause of action which entitles the petitioner to seek such reliefs as prayed in the writ petition and the writ petition has been filed only to harass and trouble respondent No. 5. It was further submitted that petitioner was not a party to the agreement dated 05.10.2011, therefore, in absence of any contractual sanctity no legal right of the petitioner has been impinged upon. Further the allotment of pasture/gocher land to respondent No. 5 has been made strictly in accordance with law.
12. It was further submitted that the petitioner has approached this Court concealing the material facts which was necessary to be disclosed at the time of filing of the writ petition. The petitioner society itself filed a case No. 683/2018, Sangarsh Sewa Samiti Vs. Jindal Saw Limited before the Permanent Lok Adalat, Bhilwara under Section 22 B of the Legal Service Authority Act. It was also submitted that the writ petition has been filed with an inordinate delay of 9 years, and in support of this submission, he has placed reliance on the judgment of the Hon'ble Apex Court in Ashok Kumar Mishra & Anr. Vs. Collector, Raipur & Ors., AIR 1980 SC 112. He submitted that after execution of the mining lease, respondent No. 5 is indulged in mining activities in fair, transparent and legally diligent manner. It was further submitted that according to the Rules of High Court of Rajasthan, 1952 (as amended upto July, 2012) in Chapter XXXIIA-Public Interest Litigation, the petition filed in public interest shall disclose the social public standing/professional status and public spirited incidents of the petitioner but the petitioner has not disclosed the same.
13. Learned counsel also submitted that Condition No. 17 of the agreement gets activated as obligation on the part of the respondent in the circumstances when there is drought in the area of Pur and the petitioner has failed to submit any documentary proof to establish the fact that drought has occurred in Bhilwara. It was submitted that after due consideration the NOC was granted by the Revenue Department in respect of mining in the Charagah land situated in villages Samodi, Dariba, Pansal, Malola & Suras. Further, respondent No. 5 had also obtained NOC's from the respective Gram Panchayatas falling within the lease area. He, therefore, prayed that the writ petition may be dismissed as such.
14. We have considered the rival submissions of the respective parties and perused the record carefully.
15. At the outset, it is noticeable that the writ-petitioner claimed six reliefs, as afore-quoted, however, vide order dated 08.01.2020, notice was issued to the respondents to the limited extent of violation of Condition No. 17 of the agreement between respondents No. 4 and 5 under Annexure-6 as well as issue of Gochar land. We shall deal with the said aspects in the light of the arguments one by one.
(1) Issue regarding violation of Condition No. 17 of the agreement dated 05.10.2011:
16. There is no denying the fact that after the execution of mining lease in favour of the respondent No. 5, an agreement was executed between the Municipal Corporation, Bhilwara and the respondent No. 5 on 05.10.2011 for the purpose of setting up of a 10 MLD Sewage Treatment Plant on BOOT basis to treat the sewage water of Bhilwara City for use in the plant of the respondent No. 5. The said agreement contained as many as 23 conditions, out of which Condition No. 17 is relevant for our purpose, which is being reproduced as under:-
17. The above condition specifically provides that the treated water will be released in two ponds in village 'Pur', only when there will be drought in the 'Pur' area. From the said condition, it is not borne out that the objective was to fill two water tanks in village 'Pur' with drinking water on regular basis. Be that as it may, the petitioner has failed to establish that any drought had occurred in the said area after the execution of the agreement in question.
18. The matter can be viewed from another angle also. Admittedly, the writ-petitioner was not a party to the said agreement and the Municipal Corporation, Bhilwara has never made an allegation against the respondent No. 5 regarding noncompliance of Condition No. 17 (supra). Therefore, this issue is not established by the writ-petitioner.
(2) Issue regarding Gochar land:
19. The sequence of events depicted by the respondent No. 5 in its reply, which is duly supported by affidavit of its authorised representative Shri Rajesh Kumar Kuvera and the documents, it is revealed that on 11.10.2007, the Government of Rajasthan issued a Letter of Intent for grant of mining lease to the respondent No. 5. Thereafter, NOCs' came to be issued by the Gram Panchayat, Suras, Dariba, Pansal and Malola on 28.03.2008, 30.07.2008, 06.08.2008 and 15.10.2009 respectively. Thereafter, on 16.10.2009 a public hearing relating to the Environment Clearance was conducted after due publication in the newspaper in accordance with law. On 29.04.2010, a No Objection Certificate for mining in the Charagah land was granted by the State Government. This No Objection Certificate is very relevant for deciding the present controversy, which is being reproduced hereunder:-
20. Thereafter, vide letter dated 30.07.2010, the District Collector Bhilwara issued NOC in respect of mining in the Charagah land situated in the aforesaid villages. The Ministry of Environment and Forest issued Clearance Certificate in favour of the respondent No. 5 vide letter dated 09.08.2010 and ultimately mining lease was sanctioned on 16.11.2010 and execution thereof took place on 08.12.2010. The aforesaid material placed on record reveals that the mining lease was granted to the respondent No. 5 after following due process of law and since thereafter the respondent No. 5 is carrying on mining activities in pursuance of the mining lease.
21. After the issuance of the mining lease in the year 2010, the instant writ petition has been filed in the year 2019 i.e. after a lapse of almost 9 years, whereas under Section 30 of the Mines and Minerals (Development and Regulation) Act, 1997, a person aggrieved by the order granting mining lease can challenge the same before the appropriate authority of the Central Government. The petitioner-Society did not avail the alternative efficacious remedy and has directly approached this Court and that too without any locus standi.
22. It is also borne out from the record that the respondent No. 5 has established a fodder plot in the village Samodi and is supplying green fodder therein for the livelihood of cattles and livestocks in the area. The respondent No. 5 in support of this fact, has placed on record the photographs of green fodder supply for cattles in the Villages Pur, Samodi and Dariba for the Financial Year 2018-19 under Corporate Social Responsibility Scheme (CSR Scheme). Therefore, the plea of the petitioner that the mining activities of the respondent No. 5 are prejudicial to the lives of the cattles has no basis at all.
23. One more fact which needs special attention is that prior to filing of the present petition, the petitioner-Society has filed Case No. 683/2018, titled as Sangarsh Sewa Samiti & Ors. Vs. Jindal Saw Limited & Ors., before the Permanent Lok Adalat, Bhilwara (Rajasthan) under the provisions of Section 22-B of the Legal Services Authority Act, 1987 and the said matter is still pending before that Forum, however, the petitioner has suppressed the said material facts in the instant writ petition. Therefore, the petitioner has not approached this Court with clean mind, clean heart and clean objective. The facts on record reveal that the present petition is nothing but a colourable device to abuse the process of law and cause hindrance to the respondent No. 5 in carrying out its mining activities.
24. In view of the above discussion, there is no merit in the present PIL petition and the same is hereby dismissed.
No comments:
Post a Comment