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Judgment
This matter has been received upon being transferred by the Hon'ble High Court of Rajasthan, Bench at Jaipur vide its order dated 23.09.2013. Initially, the Applicant filed a Writ Petition bearing No. DB Civil Writ Petition No.7241/2011before the Hon'ble High Court of Rajasthan with the allegation that the illegal mining was being done in and around Village Pachari Kalan Tehsil Buhana, District Jhunjhunu as a result of which not only mineral was being extracted, the lease holders and others carrying out such mining were indulging in illegal blasting as a result of which damage to their houses and religious places and water reservoirs was being caused. It was also submitted that as a result of the aforesaid activity, damage has been caused to the schools, bowdi, and minor dam. Further, air and noise pollution was being caused as such activity is not being monitored or regulated by the Respondents.
The Hon'ble Rajasthan High Court vide its order dated 24.05.2011 ordered notice to be issued by the respondents, who after being served put in appearance before the Hon'ble High Court and submitted their replies. It may also be noted that in the Writ Petition, allegations with regard to illegal mining and blasting were made against Respondent No. 12 to 14 who also have submitted their replies to the application. Along with the application, documents including photographs were filed to substantiate the plea with regard to damage to residential houses, schools, buildings and water storage reservoirs.
After receipt of the case from the Hon'ble High Court, notices were issued by the Tribunal to the Applicant as well as the Respondents vide order dated 05.12.2013 and the Respondents put in their appearances after service of notice on 29.01.2014. Though, initially none appeared for Applicant, however, subsequently applicant also put in appearance.
On 15.04.2014, the Respondent No. 4 Rajasthan State Pollution Control Board (for short 'RSPCB') filed an affidavit stating therein that the five mines which were in operational in the area and regarding which the issue has been raised by the Applicant, have been found closed at the time when the Environmental Engineer of the RSPCB went for their inspection. It was also submitted that already closure orders have been issued against the five mining leases by the RSPCB after following the due process.
Respondent No. 7 submitted affidavits and report wherein it was indicated that on inspection by the Department of Mines Safety, Ajmer Region the lease holders were not found observing the norms as well as were in violation of the conditions of the license and as such closure notices have been issued by the State Mining Department and explanation of the mining lease holders have been sought. The Respondent Mining Department as well as the Mines Safety Department were directed to submit their response as to what consequential orders have been passed after the issuance of the notice to the mining lease holders for the alleged breach and non-observance found during the inspection. This Tribunal also directed that the security amount which has been deposited by each of the lease holder shall not be released to the lease holders till further orders from this Tribunal. The District Collector, Jhunjhunu was also directed to depute a responsible Officer of the Revenue Department alongwith Officer of Mining Department to investigate the mining area and submit their report before this Tribunal. The matter was thereafter listed on 08.05.2014 on which date the Counsel for the State of Rajasthan informed the Tribunal that all the five mining leases have been closed down. It was also submitted that the Mining Engineer has not noticed any damage to the properties and further that the inspection was also carried out by the Mining Engineering alongwith the Sub Division Officer and Revenue Officer. On 25.07.2014 during the hearing it was felt necessary to seek the information on the following issues :
i. Whether all mines in the village Pacheri Kalan have been inspected and what were the irregularities noticed on inspection and the action taken on noticing such irregularities and their present status.
ii. The particulars of damage caused to the environment particularly to the water bodies, underground water level and damage to the houses properties due to the blasting operations in mines.
iii. Suggestions for restoration of environment and the remedial measures that will be required to be taken for restoration of environment and compensating the loss incurred by the villagers.
The case was adjourned for 08.09.2014.
In response to the aforesaid directions contained in the order dated 25.07.2014, the State of Rajasthan submitted their affidavit of the Mining Engineer, Sikar. In the said affidavit, the following reply has been give to each of the question:
"In response to the question No. 1 : it is submitted that there are total five mining leases sanctioned by the State Government in the area in question viz. mining lease Nos. 356/2006, 357/2006, 358/2006, 359/2006 and 1021/2009. The details of the mining lease holders nearby village, Tehsil, District, mineral lease period, sanctioned area, blasting permission of DGMS Ajmer and the permission of heavy earth moving machines details are given the tabular form which is marked and filed as Annexure RR/1.
In response to the question No. 2 and 3 : The officers of the Department of Mines and Geology and the revenue officials of the local administration, the SDM, Tehsil Buhana, District Jhunjhunu conducted a joint inspection on 05.05.2014 of the area in question and gave a finding that there is no prima facie damage caused particularly to the water bodies in the area, it was also observed during the inspection by the inspection team, there is no damage to any of the house/residential properties due to the blasting operations in the area in question."
Learned Counsel for the Applicant thereafter submitted that as far as allegation of carrying out uncontrolled blasting is concerned, they stand substantiated by the response of the State Government itself. Learned Counsel further reiterated that all the photograph submitted alongwith the application by way of Annexure 1 to 13 containing 26 photographs clearly indicate that the dwelling units and other buildings have received considerable damage by way of cracks and all these are attributable to the uncontrolled blasting being carried out by the lease holders as such cracks etc. cannot occur in all the buildings due to alleged use of substandard construction material.
Since, the respondents in their affidavit have denied having found any, prima facie, damage to properties due to blasting, it remains a disputed question on fact, though the photographs filed on record show otherwise.
From the material on record and the submissions made before us, it is apparent that uncontrolled blasting was carried out by the mining lease holders and that under the orders of the RSPCB and the notices issued by the Director, Mines and Safety, mining operations in the area have been closed since April 2013. As such, as far as preventive actions are concerned, that has already been initiated and at present, no mining activity is going on.
As regards the question of compensation to the owners of the property which have allegedly been damaged, is concerned, we direct that each of such owners of the property would be entitled to submit their claim for compensation before the Sub Divisional Officer who shall have each of the claim verified by a team consisting of Officer of the PWD, RSPCB and a representative of the Gram Panchayat and shall consider each case on its merit and in case any damage is found, shall compute the amount of compensation to be awarded to each of the owners of the property within four weeks of the filing of such claims.
In our order of 15.04.2014, we had directed that the amount by way of security deposit which has been deposited by each of the five mining lease holder shall not be released to the lease holder until further orders from this Tribunal. The amount of the five lease holder shall be clubbed together as it may not be possible to fix the responsibility with regard to causing of damage, to the specific act of the individual Respondents and in that event, the amount of compensation shall be liable to be paid jointly and severally by all the lease holders. For the aforesaid purpose, the said amount shall be ordered to be jointly recovered from them and paid out of the combined amount. Further, in the event, the total amount to be awarded to each of the claimant exceeds the amount lying by way of security, the said amount of security deposit shall be proportionately distributed to the claimants. It is made clear that if mining lease holders failed to discharge their responsibility with regard to payment of compensation if it exceeds the net amount lying by way of security, the excess shall be got deposited by each of the mining lease owners and in case they fail to deposit, they would not be entitled to seek the restoration of the existing mining lease or being considered for award of any afresh mining lease till the amount is deposited. The State Government / District Collector shall be at liberty to recover the outstanding amount by attachment and sale of the property of the mining lease owners.
With the aforesaid direction, the Original Application No. 124/2013 stands disposed of.
The compliance be reported by 5th December, 2014. Let the matter be listed for compliance on 8th December, 2014.