Dilip Burman vs Union Of India And Ors

Learned Counsel for the Applicant has filed the Misc. Application No. 47/2014 praying for leave to amend the Original Application.

In the said application the Applicant has stated that vide letter dated 24.10.13 the Applicant has approached the Respondent nos. 4 and 5 to bring to their notice that the respondent no. 8 had installed Stone Crusher on Khasra No. 80-81 owned by one, Shri Parasram S/o Dadu. It is alleged that the said Stone Crusher is being operated without obtaining the Environmental Clearance in terms of the law laid down by the Hon'ble Supreme Court in Deepak Kumar's case. We are of the view that the said application cannot be allowed in view of the fact that the applicant has failed to identify as to where the aforesaid Khasra No. 80-81 is situated and since when the alleged activity of running the Crusher is being carried out by the Respondent no. 8. The Applicant also failed to look in to the fact that the present application is in respect of alleged illegal mining on Khasra No. 116 (old Khasra No. 78) in Village Dedtalai, Tahsil Khaknar, Distt. Burhanpur, on the alleged ground of the respondent nos. 6, 7 and 8 having not obtained necessary prior permission under Forest (Conservation) Act, 1980 and also Environmental Clearance (EC) of SEIAA in accordance with the EIA notification dated 14.09.06. Therefore, the cause of action is limited only against the respondent no. 8 and no connection has been pointed out between the alleged violation by respondent nos. 6, 7 and 8 of illegal mining in Khasra No. 116 in Village Dedtalai, and the present alleged activity of illegally running of the crusher on Khasra No. 80-81, the location of which has not been specified. In view of the above it is not possible to take both these causes of action in the present Application itself. The amendment therefore is rejected and the Misc. Application No. 47/2014 accordingly stands dismissed.

Misc. Application No. 52/2014

Shri Sachin K. Verma appearing on behalf of the Respondent nos. 2 and 4 has moved the Misc. Application No. 52/2014 with the prayer for taking on record the report submitted by the Expert Committee constituted as per the orders of the Hon'ble Supreme Court in the matter of T.N. Godavarman vs. Union of India.

Copy of the same has been furnished to the Learned Counsel for the Applicant. The said Misc. Application No. 52/2014 is allowed and disposed of. The document Annexure (C-2) filed along with the Misc. Application No. 52/2014 has already been taken on record.

Original Application No. 112/2013

We have heard the Learned Counsels for the parties on the merits of the case and considered the record. The grievance which has been raised in the Application pertains to the alleged illegal mining being carried out by the respondent nos. 6, 7 and 8 on Khasara No. 116 in Village Dedtalai, Tahsil Khaknar, Distt. Burhanpur, which the Applicant alleges is a forest land and also prior permission from SEIAA was mandatory in accordance with the EIA notification dated 14.09.06. It was submitted that since there is no such prior permission the mining activity being carried out on Khasra No. 116 in Village Dedtalai, deserves to be stopped immediately.

In reply to the notice issued by us, the Respondent nos. 4 and 5 have filed the affidavit. In Para No. 2 of the reply it has been stated by the Respondent nos. 4 and 5 that Khasra No. 116 of Village Dedtalai, Tahsil Khakhra, Distt. Burhanpur, is entered as 'Charai' under the ownership of the Revenue Department of the State Government and it is not a 'forest land', as alleged by the Applicant. It is further submitted by the Learned Counsels for the Respondents that since the land is classified as 'Charai' and not as forest land, it was permissible for the State Government to grant a mining lease and also since the lease is question is less than 5 hectare, no EC is required and the guidelines laid down in the Deepak Kumar case are applicable only at the time of renewal of the existing mining lease or at the time of fresh consideration.

In response to the above reply, the Applicant has not chosen to file any rejoinder. In the aforesaid reply the Respondent nos. 4 and 5 have annexed documents Annexure (R-5/1) which are the revenue record from the year 1984-85 to 2012 where the land in question is recorded as 'Charai (Charnoi)' under the control of the Revenue Department. So far as the documents filed by the Applicant are concerned, we find that in the year 1954-55 Survey No. 58/01 which as per the Applicant's version corresponds to the present site, was recorded as "Bade Jhad Ka Jungle" and the total area of the survey number was 33.65 hectares. In the year 1972-73 Khasra No. 58/01 in Village Dedtalai was recorded as "Bade Jhad Ka Jungle" and divided into two parts and reserved for grazing (Annexure A-4). It was explained by Shri Sachin K. Verma, Learned Counsel for the State Government that at the relevant time the extent of area in Khasra No. 58/01 was much larger and after settlement operations new Khasra No. 116 measuring 7.11 hectares was separately carved out and classified as 'Charai'. It is submitted that the mining operations have been permitted to be carried out by the Respondent nos. 6 and 7 on the separately carved out piece of land bearing Khasra No. 116 which was categorised as 'Charai' and not as forest land.

It has been brought to our notice that Respondent no. 8 is not granted with any mining lease and not indulging in any mining activity on Khasra No. 116 in the Village Dedtalai.

Since we find that Khasra No. 116 in Village Dedtalai is not classified as 'forest land' as per the records produced by the Respondents, the contention of the Applicant that no permission was obtained for granting the mining leases in violation of Forest (Conservation) Act, 1980, is not applicable.

With regard to the averments made by the Applicant that the mining leases granted to the Respondent Nos. 6 & 7 are under operation without obtaining EC from the SEIAA in violation of the Hon'ble Supreme Court orders dtd. 27.02.2012 in Deepak Kumar's case, the record produced before us indicate that the mining leases were granted over an area of 2 hectares each to the Respondent No. 6 in 2007 and to the Respondent No. 7 in 2008 for a period of 10 years in Khasra no. 116 and therefore, we agree with the contention of the Respondent Nos. 4 & 5 that no EC is required and the guidelines laid down in the Deepak Kumar case are applicable only at the time of renewal of the aforesaid existing aforesaid mining leases. Therefore, the application deserves to be dismissed.

Accordingly, Original Application No. 112/2013 stands dismissed. However, liberty is granted to the Applicant to move a proper Application giving full particulars in respect of any other illegal mining activity being carried out by the Respondent no.8. This order shall not operate as bar by way of prejudice so far as the fresh grievances are concerned. Parties to bear their costs.