W.P. No.18922/2011

     M/s Pacific Exports                   State of Madhya Pradesh & Ors.


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                                                              W.P. No.18922/2011


                                O R D E R

Passed on: .5.2012 Shri R.S. Jaiswal, learned Senior Advocate with Shri Manoj Kushwaha, Counsel for the petitioner.

Shri Jaideep Singh, Government Advocate for the respondent/State.

Quashment of Annexure P-9, P-10 and P-11 communications of Madhya Pradesh Pollution Control Board (Respondent No.3) dated 25.11.2010, 14.01.2011, 14.01.2011 respectively consent letters issued under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (in short "the Act of 1981") and under Section 25/26 of Water (Prevention and Control of Pollution) Act, 1974 (in short "the Act of 1974") is under consideration in this writ petition. In the aforesaid communications though permission to excavate iron ore, laterite, blue dust 27.05 hectare area is granted but production capacity of mineral has been limited to 80,640 tonnes per annum.

During arguments on interim relief, it has been submitted by learned counsel for the petitioners that respondents may be directed to issue transit permit/pass to petitioner for transportation of mineral/overburden already extracted, stored after payment of royalty etc.

2. According to avernments mentioned in the petition, in pursuance of order dated 11.09.2008 of Respondent No.1, petitioner is carrying out mining work on Khasra No.412, 413 W.P. No.18922/2011 M/s Pacific Exports State of Madhya Pradesh & Ors.

W.P. No.18922/2011 and 426 in Village Jhiti, Tehsil Sehora, District Jabalpur.

Prospecting License was issued on 19.09.2008 in Form 'F' as per provisions of Rule 15(2) of the Mineral Concession Rules, 1960 necessary permission required under Section 247(5) of Madhya Pradesh Land Revenue Code, 1959 has also been accorded by the Additional Collector for entry on the land for the aforesaid work. Necessary permission required under Section 2 of Forest (Conservation) Act 1980 has also been obtained by the petitioner for the purpose.

3. In pursuance of provisions of the Act of 1974 and the Act of 1981, petitioner moved required applications before Respondent No.3 for grant of permission and permission was accorded vide order Annexure P-9, P-10 and P-11 but production capacity has been limited as above. Necessary periodical statements have been regularly submitted by the petitioner on regular basis in concerned departments and payment of royalty has also been made by the petitioner to the Collector on the total production done by him.

4. Admittedly for movement of overburden no consent of respondent No.3 is required, however, for production of iron ore, etc., consent of respondent No.3 is relevant rather mandatory.

5. Mining capacity of the petitioner has been restricted on the pretext of violation of prevention of pollution laws saying that much higher quantity of iron ore has been excavated by the petitioner then the consent has been given to him by Pollution W.P. No.18922/2011 M/s Pacific Exports State of Madhya Pradesh & Ors.

W.P. No.18922/2011 Board, which the case of petitioner is that the removal of overburden and then removal of mineral were with the permission and in accordance with the terms of sanction and agreement.

6. Placing reliance on decision of Division Bench of this Court passed in W.P. No.1574/2008 on 14.08.2008, it has been submitted by petitioners that he may be permitted to remove the overburden and the mining material already lying on the spot. In similarly situated conditions, this Court in W.P. No.1574/2008 has issued directions, thus: -

14.08.2008 "Heard Mr. Siddharth Gupta with Mr. V.K. Patel, learned counsel for the petitioner, Mr. A.G. Dhande, learned Senior Counsel for applicant in I.A. No.3890 of 2008, Mr. Vivek Rusia, learned counsel for applicant in I.A. No.7318 of 2008, Mr. G.P. Dubey, learned counsel for applicant in I.A. No.7631 of 2008, Mr. Akshay Dharmadhikari, learned counsel for applicant in I.A. No.7733 of 2008 and I.A. No.7734 of 2008, Mr. M.L. Jaiswal, learned Senior Counsel for the applicant in I.A. No.7782 of 2008 and I.A. No.7784 of 2008, Mr. Mrigendra Singh, learned counsel for the applicant in I.A. No.7713 of 2008, Mr. Naman Nagrath, learned counsel in I.A. No.7792 of 2008, Mr. Manish Verma, learned counsel for applicant in I.A. No. 7814 of 2008 and Mr. R.N. Singh, learned Advocate General with Mr. V.K. Shukla, learned Deputy Advocate General for the State of M.P. We have also heard Mr. Ashish Shroti, learned counsel for respondent No.4 M.P. Pollution Control Board.

By our order dated 2.7.2008, we had directed the respondent No.3 Secretary, Department of Mining & Mineral Resources, Govt. of M.P. to forthwith issue instructions to all concerned officers to ensure that the remaining minor mineral quarry leases which are operating without consent of the W.P. No.18922/2011 M/s Pacific Exports State of Madhya Pradesh & Ors.

W.P. No.18922/2011 M.P. Pollution Control Board (for short 'the Board') are closed down. In the said order dated 2.7.2008, we had, however, observed that it will be open to such mines of both major and minor minerals, to apply to the Board for consent and if such applications are filed, the Board will consider the same in accordance with law and pass appropriate orders.

Pursuant to the said order dated 2.7.2008, it appears that the respondent No.3 has already issued instructions to all concerned officers for closing down mining activities in all the minor mineral quarries which are operating without consent of the Board. Number of IAs for intervention have been filed by the lessees of such minor mineral quarry leases and we have heard learned counsel for the said lessees who have of filed the IAs for intervention.

Mr. Shroti, learned counsel appearing for the respondent Board submitted that under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981, no person can establish or operate the industrial plant in air pollution control area without the previous consent of the Board. He further pointed out that the entire State of Madhya Pradesh has been notified as air pollution area. He submitted that in Section 2(k) of the said Act, 'industrial plant' has been defined to mean a plant used for any industrial or trade purposes and emitting any air pollutant. He submitted that by a notification dated 14.9.2006 of the Central Government issued under sub-section (1) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, activities for mining of minerals in mining lease areas of 50 hectares or more will require the prior environmental clearance of the Central Government or the authority constituted by the Central Government and activities of mining of minerals of mining lease areas of 5 hectares and more up to 50 hectares will require environmental clearance of the State Level Environmental Impact Assessment Authority. He submitted that in respect of mining of minerals in mining lease areas of 5 hectares or more, therefore, the State Pollution Control Board cannot process the applications for consent without clearance from the Central Government or as the W.P. No.18922/2011 M/s Pacific Exports State of Madhya Pradesh & Ors.

W.P. No.18922/2011 case may be, of the State Level Environmental Impact Assessment Authority.

Mr. R.N. Singh, learned Advocate General submitted that so far as the mining of minerals in mining lease area of less than 5 hectares is concerned, no clearance is required under the notification dated 14.9.2006 Mr. Shroti, however, submitted that prior consent would be required under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 if there is an industrial plant operating in such mining lease area of less than 5 hectares.

Considering the fact that a large number of workers are working in different mining lease areas of less than 5 hectares and an industrial plant may or may not be operating in such mining lease areas of less than 5 hectares, we direct that mining activities in such mining lease areas of less than 5 hectares may be permitted subject to their obtaining consent from the M.P. State Pollution Control Board wherever such consent is required within a period of three months from today.

Regarding mining lease areas of 5 hectares of more, clearance under the notification dated 14.09.2006 will have to be obtained either from the Central Government or from the State Level Environmental Impact Assessment Authority. In case the applications have been filed for such clearance before the Central Government or the State Level Environmental Impact Assessment Authority, the same will be processed as early as possible and the results intimated to the applicants by the concerned authority within a period of one month from the receipt of certified copy of this order from the applicants. As soon as such clearances are obtained and filed before the Board, the Board will process the applications for consent and dispose of the said applications within two months from the receipt of clearance.

Mr. Dharmadhikari, learned counsel appearing for the intervener in I.A. No.7734 of 2008 M/s S.R. Ferro Alloys Limited, submitted that some materials were excavated by M/s S.R. Ferro Alloys Limited prior to the order passed by this Court on 2.7.2008 but transportation of these materials has not been possible on account of withdrawal of transit W.P. No.18922/2011 M/s Pacific Exports State of Madhya Pradesh & Ors.

W.P. No.18922/2011 permits issued by the concerned authorities pursuant to the order dated 2.7.2008 passed by this Court.

We direct that the concerned authorities will find out whether the materials have been excavated by M/s S.R. Ferro Alloys Limited before 2.7.2008 and if the same have been excavated prior to 2.7.2008, the authorities will allow the aforesaid lessee to transport the materials. Similarly, in all other cases, where the lessees have excavated the materials prior to 2.7.2008, they will be allowed by the concerned authorities to transport the materials excavated prior to 2.7.2008.

Mr. Gupta states that fresh I.A. No.7933 of 2008 has been filed by the petitioner. Mr. Shashank Shekhar, learned counsel has also submitted that he has filed I.A. Nos.7950 of 2008 and 7951 of 2008.

The aforesaid IAs filed by Mr. Gupta and Mr. Shashank Shekhar will be listed for consideration on the next date of hearing.

List the matter on 4.9.2008. Certified copy as per rules."

7. In our considered opinion, particularly in view of the fact that respondent No.3 has already taken the required action against the petitioner on the basis of alleged lapses committed by him for excavation of mineral in excess quantity, no useful purpose would be served to keep the overburden dumped on the spot for an indefinite period.

8. In view of the totality of the facts and circumstances of the controversy, we direct that the authorities shall allow the petitioner to remove the overburden from the spot on payment of royalty etc. if already not paid, by issuing necessary transit pass etc. The concerned authorities may also find out whether W.P. No.18922/2011 M/s Pacific Exports State of Madhya Pradesh & Ors.

W.P. No.18922/2011 the minerals were excavated prior to the issuance of Annexure P-9, P-10 and P-11. They shall also further allow the petitioner to transport the minerals, as per sanction, agreement and the existing permission, on payment of royalty etc. as per rules.

Needless to mention that all concerned will maintain an account of the minerals so removed from the spot in pursuance of this order.

I.R. is granted in the aforesaid terms.

The matter be listed for final hearing in due course.

       (Krishn Kumar Lahoti)                    (Tarun Kumar Kaushal)
               Judge                                   Judge


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