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H I G H C O U R T O F M AD H Y A P R AD E S H : J AB AL P U R
D I V I S I O N B E N C H : H O N . S H R I J U S T I C E K R I S H N K U M AR
L AH O T I
H O N ' B L E S H R I J U S T I C E T AR U N K U M AR K AU S H AL
W r i t Ap p e a l N o . 6 2 9 / 2 0 1 1
Santu and another.
Vs.
Union of India and others.
For Appellants : Shri Siddharth Gupta, Advocate.
For Respondents : Shri S.A. Dharmadhikari,Advocate.
No.1 & 2
For Respondents : S h r i P . K . K a u r a v , D y. A . G .
No.3 to 6 & 8
For Respondent : Shri A.P. Shroti, Advocate.
No.7
For Respondent :
Shri R.S. Jaiswal, Sr. Advocate
with No.10 Shri Manoj Kushwaha.
J U D G M E N T
( /05/2012) Per: T.K. Kaushal, J.
This appeal has been preferred under Section 2(1) of the Madhya Pradesh Uchcha N ya y a l a y a (Khand N ya y a p e e t h Ko Appeal) A d h i n i ya m , 2005, against the order dated 20.5.2011 passed by the learned Single Judge in W.P. No.1072/2011 declining to issue any direction in view of the fact that Government has already started inquiries into the complaint of illegal mining.
2. Facts of the case in short are that private respondent No.10 has entered into an agreement on 18.8.2010 (Annexure A/4) for mining work on lands comprising of Khasra No.412 ad measuring 20.65 hectares forest land and Khasra No.426 ad measuring 2 6.40 hectares revenue land in all 27.050 hectares with the S t a t e f o r a p e r i o d o f 3 0 ye a r s . Petitioners have preferred the writ petition challenging the mining activities on the ground that land of the petitioners bearing Khasra No.463 in Village Jhiti was illegally obtained by the respondent No.10 in contravention of provisions of Section 165 of the M.P. Land Revenue Code, 1959 because petitioners were belonging to Scheduled Tribe categories and said land has been granted to them by State as 'patta bhumi' and is non-transferable. Admittedly, the aforesaid land has been taken by respondent No.10 from petitioners on rent for installation of machinery and collection of Overburden. Mining activities of respondent No.10 has also been challenged on the grounds of want of possessing prior environment clearance according to provisions of Environment Protection Act, 1986 (for short ' 1 9 8 6 Ac t ' ) , Air (Prevention of Pollution) Act, 1981 (hereinafter referred to as the 'Air Act'), Water (Prevention of Pollution) Act, 1974 (hereinafter referred to as 'Water Act') and Forest Conservation Act, 1980 (hereinafter referred to as the '1980 Act').
3. As against production capacity of 80,640 tonnes per annum material, respondent No.10 has extracted more than 11 lacs M/T material. Act of such illegal mining has been brought into the notice of the Court. Impugned order has been challenged by the appellants on the grounds that while fact of illegal mining has been brought into the notice writ court a suitable action ought to have been taken against the erring private respondents. Learned 3 Single Judge without entering into the illegal mining activities left it to the State Government to take suitable action. Learned Single Judge has failed to pass any appropriate direction against private respondents for s t a yi n g aforesaid illegal mining activities for want of clearance from competent authority from State Level Environment Impact Assessment Authority, respondent No.9.
4. It was further submitted by learned counsel for the appellants that in writ court on 26.4.2011 it was categorically stated by Deputy Advocate General on behalf of the State of Madhya Pradesh (respondent No.3, 4 and 5) i.e. the mining operation which was being carried out by the respondent No.10 has been suspended. But in the next month i.e. on 3.5.2011 vide Annexure A/3, order of the Collector, s t a yi n g the mining operation of the respondent No.10 was set aside by the Collector itself s a yi n g t h a t h e w a s n o t c o m p e t e n t a n d a u t h o r i s e d t o s t a y such mining activities. Meaning thereby the facts narrated by the State in the Court that mining activities has been restrained, Respondent No.10 continued with the illegal mining activities. It was submitted by learned counsel for the appellants that mining activities should have been started only after obtaining due mandatory permission from the competent authority as required under the Pollution Laws.
5. At the same time, it was submitted by learned counsel for the respondent No.1 to 6 and 8 that fact of 4 p a ym e n t of ro yalt y in contravention of compliance of provisions of pollution laws is immaterial and is of no consequence. Neither exceeded royalty amount should have been offered by respondent No.10 nor it should have been accepted by the authorities. Such p a ym e n t of r o ya l t y w i l l n o t m a k e t h e d e f e c t s a n d d e f a u l t s o f i l l e g a l mining work good. It is of no consequence in favour of the Respondent No.10.
6. It was submitted by learned counsel for the respondent No.7 and 9 that not only the Respondent No.10 has carried out the mining activities in contravention of the pollution laws but has also committed the offence punishable under pollution laws and a criminal complaint has been instituted in the Court of Judicial Magistrate First Class, Sihora, District Jabalpur against the respondent No.10 under Sections 21, 31 and 39 of the Air (Prevention of Pollution) Act, 1981 and under Sections 25, 44 and 45A of the Water (Prevention of Pollution) Act, 1974.
7. On the other hand, in support of impugned order, learned counsel for the respondent No.10 has submitted t h a t m i n i n g a c t i v i t i e s h a s s t a r t e d b y h i m i n t h e ye a r 2 0 0 6 after obtaining due approval and permission from the State Authorities. Vide order dated 10.8.2010 (Annexure A/3) of State had allowed the application dated 13.10.2008 of respondent No.10, lease was granted for m i n i n g w o r k s f o r a p e r i o d o f t w o ye a r s . Annexure A/4 statutory agreement in Form 'K' was executed by the 5 Respondent No.10. Application of Respondent No.10 for Environmental Clearance was processed under notification dated 14.6.2006, Annexure A/6 was issued by Ministry of Environment & Forest. In 63rd meeting of State Experts Appraissal Committee held on 30.8.2010 vide Annexure A/ 7 Environmental Clearance was granted to respondent No.10 also.
8. Forest Department and Revenue Department had also granted working permission vide Annexure A/8 and Annexure A/9 to carry out the mining works. Similarly, vide Annexure A/11, Annexure A/12 and Annexure A/13, consent required under Pollution Laws was also granted but production capacity was limited to 80,640 tonnes per annum. It has been further submitted by learned counsel for the respondent No.10 that vide Annexure A/18, Indian Bureau of Mines, MCC and Central Government vide communication dated 29.4.2011 enhanced the aforesaid quantity also. Accordingly, a fresh clearance Annexure A/ 19 was issued on 16.6.2011.
9. During the pendency of this appeal, State of Madhya Pradesh constituted a team comprising of 7 members headed by Executive Director, M.P. State Mining Board, Bhopal to inquire into the complaints received regarding illegal mining carried out by respondent No.10. Inspection was carried out on 5.5.2011 and a report was submitted. Against order dated 26.12.2011 passed by M.P. Pollution Control Board, respondent No.10 preferred an appeal 6 before the appellate authority/Deputy Secretary for ventilation of his grievance.
10. On careful perusal of aforesaid documents submitted by parties and after considering the contentions of parties, it has been revealed that personal grievances of the petitioners that their land bearing Khasra No.463 is non-transferable and rent notes executed by them have no legal force and is hardly of any avail in so far as main relief sought in the petition is concerned. No mining work has been carried out on the land of the petitioners. It is adjoining to the land allotted to respondent No.10 for mining work. It is used on rental basis for storage of overburden and some machinery etc. has been installed on it,.
11. In so far as complaints regarding illegal mining work of respondent No.10 are concerned, it has come on record that prior environmental clearance was given for 80,640 tonnes per annum and respondent No.10 has extracted about 11 lacs M/T material. In view of the fact that complaints regarding aforesaid facts have been examined and inquired by the Committee and Pollution Board has also taken action against alleged illegal mining activities of respondent No.10 and has also launched prosecution against respondent No.10, infact, no particular direction is required more to be issued by the Court of writ jurisdiction.
7
12. Learned counsel for the appellants has placed reliance on certain pronouncement of Apex Court. Placing reliance on (1991)4 SCC 54 (Bangalore Medical Trust Vs. B.S. Muddappa and others), it has been submitted that resident of locality can challenge any action of Development Authority if a private hospital is allowed to be constructed in an open space. Placing reliance on (1995) 2 SCC 577 (Virendra Gaur and others Vs. State of Haryana & others), it has been submitted that right to h yg i e n i c e n v i o r n m e n t p r o t e c t i o n h a s t o b e p r o t e c t e d b y Municipality and Government both. Further, placing reliance on (2000)7 SCC 552 (M.S. Jayaraj Vs. Commissioner of Excise, Kerala & others), it has been submitted that court should adopt liberal approach regarding the entitlement of a person to move to High Court involving writ jurisdiction. If violation of law is brought to the notice then on the ground of locus standi petition should not be rejected rather it is required to be considered on merits. Further placing reliance on (2006) 3 SCC 581 (K.K. Bhalla Vs. State of M.P. and others), it is submitted that in relation to discharge of official duties of public servants and authorities, policy as a whole should be taken into consideration and if any illegality is brought to the notice of the Court, in certain situation can exercise its power suo moto. Equality Clause contained in Article 14, Constitution of India cannot be invoked to perpetuate illegality. Placing reliance on (2007) 7 SCC 140 (State of Kerala & others Vs. K. Prasad and another) it was submitted that if any illegality or irregularity is found in favour of any individual or even group of individuals 8 cannot invoke jurisdiction of the writ court for enforcement of the same. Judicial forum can be used to perpetuate illegality. Further, placing reliance on (2008) 11 SCC 740 (Umesh Challiyill Vs. K.P. Rajendran), it has been submitted that affidavits in writ petition should not be construde in strict sense. T yp o g r a p h i c a l or cosmetic errors should not be prevailed. Techanicalities should not defeat the real justice.
13. Learned Single Judge has taken into consideration law cited by the petitioners and has also taken into consideration each and every fact and circumstances of the matter in entirety into consideration and appreciated the situation in right perspective. It is not out of place to m e n t i o n t h a t r e s p o n d e n t N o . 1 0 w a s c a r r yi n g t h e m i n i n g activities for the last 6 years after obtaining due permission of Forest, Mining and Pollution Departments etc. All Government agencies are taking proper actions against the respondent No.10 as and when required in the matter. Grievance of the petitioners is not real and genuine and the petition is rather sponsored by other persons involved in mining work in the area. Consent regarding production capacity has been now enhanced by M.P. Pollution Control Board accordingly. For alleged excess excavation of material than consented quantity, proper action has already been taken by the department against the Respondent No.10.
14. In given facts and circumstances, in our considered opinion, learned Single Judge was correct in observing that since State Government has already taken 9 cognizance against alleged illegal mining activities and has constituted the Committee, no specific directions are required to be issued. Appropriate action has already been taken regarding illegal mining by the concerned authorities. We see no error in the impugned order. Learned Single Judge has appreciated the material on record in right perspective and has taken into consideration entire facts and law submitted before him on the point.
15. This appeal being devoid of merits and has no substance and is hereby dismissed.
(Krishn Kumar Lahoti) (Tarun Kumar Kaushal)
Judge Judge
YS/
1
H I G H C O U R T O F M AD H Y A P R AD E S H : J AB AL P U R DIV IS ION BE NCH : HON. S HRI J US TICE KRIS HN KUM AR L AH OTI HON. S HRI J US TICE TARU N KUM AR KAUS H AL W r i t Ap p e a l N o . 6 2 9 / 2 0 1 1 Santu and another.
Vs.
Union of India and others.
J U D G M E N T For consideration.
(Tarun Kumar Kaushal) Judge 16.5.2012 Hon'ble Shri Justice Krishn Kumar Lahoti.
(Krishn Kumar Lahoti) Judge /05/2012 Post for _______ (Tarun Kumar Kaushal) Judge /05/2012