- (1.) HEARD finally with the consent of learned counsel for the parties. In Public Interest Litigation Petition No.7114/2011, prayer has been made to the effect that respondents be directed to stop mining operations by way of heavy blasting material in Khasra No.1368/1, 1379/1380, 1381 and 1382, situated at Village Dabla, Tehsil Neem-Ka-Thana, District Sikar. Prayer has also been made to direct the respondents to remove encroachments from Khasra No.1389, 1390 and 1391 and from water harvesting structure. Prayer has also been made to stop the operations of crushers, which are situated at nearby village Dabla within the prescribed distance of 1.5 km. Further prayer has been made to restrain the respondents from destroying plantation, which has been made in 500 hectares.
(2.) PETITIONER has submitted that the State Government has allotted about 24-25 minings leases for excavation of masonry stones in the year 2007-08. Earlier, mine holders were excavating the masonry stones by making small holes, which were not causing loss to the public at large, but now allottees of mines are making big holes and are using heavy blasting material, which is not within the permissible limits and resulting in spreading of stones in large distance as well as making noise and air pollution, causing danger to the lives of villagers also, situated in nearby village. Financial aid has been provided by the Central Government for development of 'Charagah' land and water harvesting structures to the tune of Rs.24.50 lacs and in 500 hectares of land, plantation has been made, which is also nearby mining areas. It is also averred in the petition that 5 big crusher machines have also been installed by the lease holders, causing air and noise pollution. Mining operations are also causing cracks in number of houses of residents of Village Dabla. The Secretary, Panchayati Raj, vide order dated 24.03.2011, directed the Chief Executive Officer, Zila Parishad to remove encroachments and to prepare plans so as to prevent encroachments in future on Charagah land and water harvesting structures. In compliance thereof, orders were issued by the Development Officer, Panchayat Samiti Neem-Ka-Thana, on 29.04.2011 to remove encroachments from the 'Charagah' land. However, encroachments were not removed, as such representation was filed pointing out air, noise pollution and illegal blasting. 'Dharnas' were also conducted, but appropriate action was not taken, hence, petitions have been preferred. In the return, filed by the State Government, it is contended that main grievance was with respect to 'Charagah' land and way made out of 'Charagah' land in order to reach to the mining area and crushers. Considering the objections raised, order dated 01.05.2011 passed by the Collector, Sikar, opening the way, was recalled by the Collector on 11.05.2011. With respect to impermissible blasting, assurance was given by the Deputy Director of Mining Safety, Ajmer to make investigation and take requisite steps to ensure the blasting within the permissible limits. With respect to pollution, assurance has been given by Rajasthan State Pollution Control Board to take appropriate steps. However, order of withdrawal, which was passed by the Collector, Sikar on 11.05.2011, has been questioned before the Single Bench in Civil Writ Petition No.7140/2011, filed by petitioner Sunil Mundhra, which is also being decided by this common order, in which interim stay was granted and operation of the order dated 11.05.2011, recalling earlier order dated 01.05.2011, has been stayed. The Rajasthan State Pollution Control Board has also taken action of closure of 5 crushers i.e. M/s NECC Grit Udhyog, M/s Surya Minetech Pvt. Ltd., M/s Janvi Intratech Pvt. Ltd., M/s Jai Laxmi Industries and M/s Shiv Ganga Associates, and they were closed with effect from 27.07.2011. Only 8 mining holders were having permission of deep hole blasting, however, within permissible limits. Danger zone is within 300 meters, whereas distance of mines from Abadi area is 1000 meters. In substantive, stand of the State Government is that requisite steps have been taken. Respondent, Rajasthan State Pollution Control Board has also filed return, stating therein that initially under wrong impression as to distance and on the basis of misrepresentation of facts, earlier permission was accorded to certain industries, they were closed, restarted and thereafter now fresh show cause notices have been issued on 04.07.2012 and 05.07.2012 to five crushing units for closing operations as they are running within the prohibited zone. As per Rajasthan State Pollution Control Board, final decision is to be taken by it, after hearing the concerned crushing units. Stand of the Pollution Control Board is that crushers are running at the distances, which are not permissible. Application(I.A. No.4353/2012) for impleadment has been filed on behalf of applicants N.E.C.C. Grit Udyog and Shiv Ganga Associates, contending therein that they are running crushers and they have received show cause notices from the Rajasthan State Pollution Control Board for closure of their operations. Earlier closure was ordered, but thereafter the Pollution Control Board has withdrawn the order and now again fresh show cause notices have been issued as earlier order was passed on the basis of misrepresentation as to the distance, as per the stand of the Pollution Control Board. It is submitted by Shri R.N. Mathur, learned Senior Counsel appearing with Shri Vikas Jakhar and Shri Dharmendra Barala, Counsel on behalf of the applicants N.E.C.C. Grit Udyog and Shiv Ganga Associates, that notices which have been issued by the Rajasthan State Pollution Control Board, are based on incorrect facts. In Civil Writ Petition No.7140/2011, filed by petitioner Sunil Mundhra, prayer has been made for quashment of the order dated 11.05.2011 passed by the Collector, Sikar, recalling the earlier order dated 01.05.2011. Prayer has also been made that it be declared that way in question is a public way and no obstruction can be created on the use of such a public way. It is also submitted that Gram Panchayat has agreed on 19.04.2011 for taking out way/public way from the aforesaid 'Charagah' land. However, fact remains that the State Government has issued Circular on 25.04.2011, filed as Annexure-14 with the writ petition, in which the State Government has issued certain directives. In the Circular dated 25.04.2011, issued pursuant to the decision of Hon'ble Supreme Court in the case of Jagpal Singh & Ors., Vs. State of Punjab & Ors.(Civil Appeal No.1132/2011 @ SLP(C) No.3109/2011), decided on 28.01.2011, {2011(1) Supreme 641}, it has been mentioned that with respect to 'Charagah' land, all earlier orders/circulars issued for allotment, regularisation, mining and for any other purposes, are stayed till further orders and in the public interest, if it becomes necessary to allot the 'Charagah' land to be used for some other purposes, the Collector after giving reasons, shall send proposal with its recommendations to the State Government and after getting prior approval of the State Government, nature of 'Charagah' land could be changed. The Circular dated 25.04.2011 reads thus:- "" We have heard learned counsel for the parties at length. It was submitted by Shri R.P. Garg, Counsel appearing on behalf of petitioner in Public Interest Litigation Petition, that though earlier crusher machines were closed and their operation was stopped, reopened, now on fresh show cuase notice no final decision has been taken by the Rajasthan State Pollution Control Board and the crushers are running within the periphery of 1 km. of the village, whereas crushers are prohibited within the periphery of 1.5 km. of the Abadi area. Thus, crushers cannot be allowed to run. He has submitted that deep hole blasting of impermissible limits is also being done, which is not permissible. It was also submitted by the learned counsel Shri Garg that order passed by the Collector on 01.05.2011, carving out the way out of 'Charagah' land for reaching to the mining area and crushers, was illegal and impermissible as power was taken away from the Collector to pass any such order without prior approval of the State Government, as mentioned in the Circular dated 25.04.2011. Thus, Collector, Sikar had rightly recalled its earlier order dated 01.05.2011, vide order dated 11.05.2011. However, under the guise of interim order, as operation of the order dated 11.05.2011 passed by the District Collector, Sikar has been stayed by the Single Bench, 'Charagah' land is being destroyed and illegal mining is also taking place, contrary to the directions issued by the State Government. Shri Zakir Hussain, Additional Government Counsel, appearing on behalf of the State, has submitted that the State Government has taken requisite steps and also issued directions to the concerned authorities. Collector has also written to the Rajasthan State Pollution Control Board to take requisite steps to stop crushers and the Collector has also rightly passed the order dated 11.05.2011, in view of Circular dated 25.04.2011, no such order could have been passed by the Collector, Sikar, as passed on 01.05.2011. Shri Akhil Simlote, Counsel appearing on behalf of respondent-Rajasthan State Pollution Control Board, has submitted that earlier closure was ordered of 5 crushers, but the same was withdrawn, which was based on misrepresention of facts. Now after receipt of communication from the Collector, steps are being taken for closure of the crushers and show cause notices have also been issued. Final decision is pending consideration, that is to be taken by the Rajasthan State Pollution Control Board. As per the stand of Pollution Control Board, crushers are running within the prohibited area/ distance. Shri R.N. Mathur, Senior Counsel appearing on behalf of applicants, N.E.C.C. Grit Udyog and Shiv Ganga Associates, has submitted that the Rajasthan State Pollution Control Board has illegally issued the show cause notices as earlier closure was ordered, which was withdrawn and crushers of the applicants are not running in the prohibited area. The distance is as per norms for running of such crushers. Shri S.K. Gupta, Counsel appearing on behalf of petitioner in Civil Writ Petition No.7140/2011, filed by Sunil Mundhra, has submitted that Collector is having power under Rule 7 of the Rajasthan Tenancy(Government) Rules, 1955(hereinafter referred to as 'the Rules of 1955') to order conversion of 'Charagah' land for the purpose of public way and as such order was passed under Rule 7 of the Rules of 1955. In the alternative, submission of Shri Gupta is that if prior approval of the State Government is required, as per Circular dated 25.04.2011, let the State Government consider the matter for grant of approval, in an objective manner. He has also submitted that way in question was in existence from the earlier point of time and it was for public good that same way has been recognized, while passing the order dated 01.05.2011 by the Collector, Sikar. Shri Zakir Hussain, Additional Government Counsel has contested the case on behalf of the State Government and submitted that order passed by the Collector, Sikar on 11.05.2011 is appropriate as without prior approval of the State Government, Collector was not competent to pass the order dated 01.05.2011. As such, he reiterated that the order passed by the Collector, Sikar on 11.05.2011 is appropriate.
(3.) BEFORE proceeding further, it is worthwhile to mention here that in the present scenario, the ecological imbalances and the consequent environmental damage has become alarming due to reckless mining operations. Preservation of ecology, flora and fauna is necessary for human existence. There is great and urgent necessity to preserve ecology. There are complaints in Rajasthan that mining has become a menace. The scale of injustice occurring in Indian soil is catastrophic. In this scenario, in a large number of cases, the Apex Court intervened in the matter and issued directions from time to time in public interest to protect and preserve forest cover, ecology, environment, wildlife etc. from ill effects of mining. Development has to be sustainable and precautionary. In T.N. Godavarman Thirumulpad Vs. Union of India & Ors., ((2002) 10 SCC 606), the Apex Court has observed that at global level, the right to live is now recognized as a fundamental right to an environment adequate for health and well being of human beings. There is increase in awareness of the compelling need to restore the serious ecological imbalances introduced by the depredations inflicted on nature by man. There may be boundless progress scientifically which may ultimately lead to destruction of man's valued position in life. The Constitution has laid the foundation of Articles 48A and 51A for a jurisprudence of environmental protection. Today, the State and the citizen are under a fundamental obligation to protect and improve the environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. Duty is cast upon the Government under Article 21 to protect the environment and the two salutary principles which govern the law of environment are :(i) the principles of sustainable development, and (ii) the precautionary principle. In T.N. Godavarman Thirumulpad (104) Vs. Union of India and Ors., ((2008) 2 SCC 222), the Apex Court held that adherence to the principle of sustainable development is now a constitutional requirement. It is the duty of the State under the Constitution to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on inter-generational equity. In Intellectuals Forum, Tirupathi Vs. State of A.P. & Ors.(AIR 2006 SC 1350), the Apex Court has held that there is a responsibility bestowed upon the Government to protect the important part of the environment of the area. The apex court has thus laid down: "67. The responsibility of the state to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "state responsibility" for pollution emanating within one's own territories [Corfu Channel Case, ICJ Reports (1949) 4]. This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant Clause of this Declaration in the present context is Paragraph 2, which states: The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of the area. Sustainable Development 68. The respondents, however, have taken the plea that the actions taken by the Government were in pursuance of urgent needs of development. The debate between the developmental and economic needs and that of the environment is an enduring one, since if environment is destroyed for any purpose without a compelling developmental cause, it will most probably run foul of the executive and judicial safeguards. However, this Court has often faced situations where the needs of environmental protection have been pitched against the demands of economic development. In response to this difficulty, policy makers and judicial bodies across the world have produced the concept of "sustainable development". This concept, as defined in the 1987 report of the World Commission on Environment and Development (Brundtland Report) defines it as "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". Returning to the Stockholm Convention, a support of such a notion can be found in Paragraph 13, which states: In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population. Subsequently the Rio Declaration on Environment and Development, passed during the Earth Summit at 1992, to which also India is a party, adopts the notion of sustainable development. Principle 4 of the declaration states: In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. In light of the above discussions, it seems fit to hold that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellants allege. " In Susetha V/s State of T.N. & ors. (2006(6) SCC 543), the Apex Court observed that the doctrine of sustainable development although is not an empty slogan, it is required to be implemented taking a pragmatic view and not on ipse dixit of the court. In Bombay Dyeing and Mfg. Co. Ltd. v/s. Bombay Environmental Action Group and Ors. (AIR 2006 SC 1489), the Apex Court has held that whereas need to protect the environment is a priority, it is also necessary to promote development. The Apex Court has laid down thus: ...The harmonization of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines 'sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs........ The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore inter-generational interest, it is also not possible to ignore the dire need which the society urgently requires. " After hearing learned counsel for the parties, on due consideration of importance of environment, we are of the considered opinion that with respect to order dated 01.05.2011, Collector was not competent to pass such an order without prior approval of the State Government, as provided in Circular dated 25.04.2011. The State Government has superseded earlier orders and Circulars, which were holding the field and with a view to preserve the 'Charagah' land etc., which were being changed or altered in routine manner, has put the rider on power of Collector to change 'Charagah' land, now prior approval of State Government is necessary. The Circular dated 25.04.2011 is appropriate and for the public good it has been issued in public interest, considering the wholesome directions issued by the Hon'ble Supreme Court in the case of Jagpal Singh & Ors., Vs. State of Punjab & Ors.(supra). It was not open to the Collector, after the Circular had been issued by the State Government on 25.04.2011, to pass the order dated 01.05.2011, without prior approval of the State Government. Thus, order passed by the Collector on 11.05.2011, recalling its earlier order dated 01.05.2011, was appropriate. However, at the same time, matter is required to be considered by the State Government for grant of approval, as envisaged in the aforesaid Circular dated 25.04.2011 whether such conversion is appropriate. Shri Zakir Hussain, Additional Government Counsel, appearing on behalf of the State, has submitted that the State Government will consider the matter within a period of three months from today, in an objective manner, and pass appropriate reasoned order in this regard. Coming to the question of running of crushers, it is apparent that the Rajasthan State Pollution Control Board, had taken action for closure of 5 crushers, however, on the basis of alleged misrepresentation, orders were recalled and the crushers again started operation. Now the Rajasthan State Pollution Control Board has again issued show cause notices in July, 2012 to close the operation of crushers as they are running in the prohibited area within 1 km, though the prohibited area is 1.5 km. from Abadi area. ;