IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.343 of 2009 Date of decision: 19.6.2010 ________________________________________________________ Dula Ram & anr. ….. Petitioners Versus State of H.P & ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the petitioners: Ms.Jyotsna Rewal Dua, Advocate. For the respondents: Mr.Vivek Singh Thakur, Addl. Advocate General with Mr.Rajesh Mandhotra, Dy.A.G for respondents No.1,2, 4 and 5. S/Sh.T.S.Chauhan and Anil Chauhan, counsel for respondent No.3. Mr.Varun Chandel, Advocate vice Mr.Sandeep Sharma, ASGI, for respondent No.6. Mr.Kush Sharma, counsel for respondent No.7. Mr..B.C.Negi, counsel for respondent No.8. _____________________________________________________ 2 Deepak Gupta, J.(Oral) The main grievance of the petitioners in this case is that grant of mining lease had been sought for by the respondent No.8 for an area measuring more than 124 bighas of land and that the process of granting the mining lease and setting up the crusher has been initiated and started without getting prior environmental clearance from the State Level Environment Impact Assessment Authority (SEIAA) and the State Level Expert Appraisal Committee (SEAC). Admittedly 124 bighas of land is equal to about 10 hectares. According to the petitioners, mining of any mineral involving an area of more than 5 hectares requires prior environmental clearance. In case the area is more than 50 hectares then it falls in category ‘A’ and has to go to the Central Authority but if the area like in the present case is over 5 hectares but below 50 hectares then the matter has to be considered by the SEAC and finally by the SEIAA. We heard arguments at length. Many other points were also raised but we have not touched those 3 points in view of the developments which have taken place during the course of hearing. After the arguments were heard for some time and detailed arguments had been addressed by both sides on the effect of the EIA notification dated 14th September, 2006 as amended by the EIA notification dated 1st December, 2009, read with the Ministry of Environment and Forest notification dated 11th October, 2007 constituting the State Level Environment Impact Assessment Authority for Himachal Pradesh as well as the State Level Expert Appraisal Committee for Himachal Pradesh, Sh.B.C.Negi, learned counsel for the respondent No.8 fairly conceded that in case the leased area is over 5 hectares, it would require prior environmental clearance. He, therefore, submitted that his clients may be permitted to submit a fresh application for grant of mining lease of an area less then 5 hectares which will not require prior environmental clearance but can be sanctioned on the basis of an Environment Management Plan (EMP). 4 In our considered view, there is some merit in this proposal. We, therefore, need not to go into the other questions raised in the writ petition and dispose of this writ petition with the following directions:- 1. That the respondent No.8 shall, if so advised, be permitted to file fresh application for grant of mining lease in respect of an area measuring less than 5 hectares so that it does not fall within the purview of EIA notification of 2006. 2. In case such an application is submitted, the Site Appraisal Committee shall again visit the site. Notice of the visit shall be given to the petitioners herein by registered post and the petitioners or any other villagers of the area who may want to object shall be heard by the Site Appraisal Committee before taken a decision thereon. While considering the objections, The Site Appraisal Committee and all other authorities shall not be influenced by anything which we have stated in this writ petition since we have not gone into the merits of the case and shall 5 consider the rival contentions of the parties on their own merits. 3. Needless to say that the Site Appraisal Committee as well as all authorities concerned with the grant of mining lease and permission to set up a stone crusher shall ensure that such lease is granted and/or stone crusher established strictly in accordance with law and the same is permitted to function only in accordance with law and it is ensured that no laws are violated. It goes without saying that in view of the fact that the learned counsel for the respondent No.8 has prayed that it may be permitted to file a fresh application for grant of mining lease for an area less than 5 hectares, its old application shall be deemed to have been withdrawn with all consequential effects. We further direct that in case the application is made within a period of six weeks from today, all the concerned authorities including the Site Appraisal Committee shall ensure that a final decision is taken latest by 31st October, 2010. After the decision of the 6 concerned authorities, any party which is aggrieved by the decision shall have a right to again approach this Court. Before parting with this case we may note that one of the issues which was raised before us was that the River/Stream Bed Mining Policy/Guidelines for the State of Himachal Pradesh strategy 2 contains a provision for preparation of a District Level River/Stream Bed Mining Action Plan. Strategy 2 contained in Clause 9.2 reads as follows:- “District Level River/Stream Bed Mining Action Plan The action plan for River/Stream bed mining shall be based on a survey document of the existing river/stream bed mining in each district and also to access its direct and indirect benefits and identification of the potential threats to the individual rivers/streams in the State. This survey shall be conducted by Geological Wing, Department of Industries, Himachal Pradesh and shall contain:- 1. District-wise details of Rivers/Streams/ Khallas; and 2. District-wise details of existing mining leases/contracts in River/Stream/Khalla beds. 7 Based on this survey, the action plan shall divide the rivers/streams of the State into the following two categories:- 1. Rivers/streams or the River/Stream sections selected for extraction of minor minerals. 2. Rivers/streams or the River/Stream sections prohibited for extraction of minor minerals. Clause 9.3 provides that based on the action plan as mentioned in strategy 2, lease/contacts shall be granted as per Himachal Pradesh Minor Mineral (Concession) Revised Rules, 1971 by following the procedures as mentioned in the policy. A bare reading of these two provisions shows that under this Policy/Guidelines, it was essential that that an action plan be prepared and further that the leases/contracts under the Himachal Pradesh Minor Mineral (Concession) Revised Rules, 1971 could only be granted on the basis of such action plan. From the reply of the State Government, it is apparent that the action plan in terms of clause 9.2, Policy Guidelines has yet to be finalized. The State has urged that despite the action plan not being finalized, it has the right to grant mineral concessions on the basis of 8 approval granted by the Sub-Divisional Level Committee. At this stage, we are not going into this question but we are prima facie of the view that an action plan must be prepared because it is only on the basis of such an action plan that leases could have been granted. We could have understood an argument that in the absence of an action plan, short term leases/contracts may be given in the interest of the public. The policy guidelines were issued in the year 2004. Six years have elapsed and for six years, the concerned Departments have totally slept over the matter and not prepared the action plan. Even the reply in the present case was filed more than one year and three months back. We fail to understand why the action plan could not be prepared till date. We, therefore, direct the State Government to ensure that action plan in terms of Section 9.2 for all the Districts in the Himachal Pradesh be positively prepared within three months from today. In case such action plan is not prepared within three months from today, we will go into the larger question as to whether any mineral concession can be granted for excavation of minor minerals without 9 such action plan being prepared. We have granted three months time without going into the larger question as to whether the State has authority to grant mining leases without preparation of action plan or not. In case we come to the conclusion that it is essential to first have the action plan and the same is not prepared within three months, we shall not hesitate to stop all mining activities in the State of Himachal Pradesh. The writ petition is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ) Judge June 19, 2010 ( Sanjay Karol ) (m) Judge