Rajesh Dixit vs State Of Madhya Pradesh And Ors

This application came to be registered by this Tribunal after the same was transferred by the Hon'ble High Court of Madhya Pradesh at Jabalpur vide order dated 09.01.2014 where originally Writ Petition No. 7754/2005 was filed by the Applicant. The Writ Petition was filed as Public Interest Litigation alleging that mining of stones, diamonds and other major mineral in District Panna in revenue lands as well as in the forest areas, was seriously affecting the nature and environment such as deforestation, soil erosion, damage to wildlife etc. as the same was being carried out allegedly illegally in areas covered even in the Panna Wildlife Sanctuary, Panna National Park, Panna Tiger Reserve and other forest areas. It was therefore prayed that the Respondents be directed to produce all documents and information pertaining to the aforesaid on all types of mining activiites in District Panna and further all over Madhya Pradesh.

The Applicant, in support of his application relied upon the articles and news items published in March 2004 in a magazine titled 'Bhopal Mahanagar' and daily newspapers Danik Jagran, Nav Bharat etc. copies of which were annexed by way of Annexure P-7 to P-13 The Writ Petition was filed before the Hon'ble High Court of Madhya Pradesh at Jabalpur on or about 05.08.2005.

The Hon'ble High Court issued notices to the Respondents vide order dated 16.01.2006. The Respondents put in appearance and submitted their replies along with the affidavit of the Divisional Forest Officer, Panna on 25.09.2006.

After the case was transferred to this Tribunal, the matter came up for consideration on 19.02.2014 and Shri Vinod Mishra, Counsel appeared on behalf of the Applicant. Subsequently during the hearing on 13.03.2014, the Applicant appeared in person and in the presence of the Applicant on 13.03.2014 and after hearing him, latest information was sought from the Respondents as the issue that was confined by the Applicant for the purposes of this application and during the hearing pertained only to the illegal mining of diamonds in District Panna and as such the Counsel for the State of Madhya Pradesh was directed to get the latest information on the following points :

"i. Under what provision of law the Pattas/mining leases are being issued for carrying out the mining with regard to the major mineral/diamond as alleged by the Applicant.

ii. Whether any conditions with regard to the execution of the lease and carrying out the mining operations have been incorporated in the lease documents/Pattas.

iii. The total number of persons to whom such Pattas/mining leases have been granted.

iv. The date of validity and duration of such mining leases/pattas."

Apart from the above, the Respondent shall file an affidavit specifically on the issue whether any illegal mining is carried out without lawful pattas/mining leases, if so what steps administration has taken for stopping the same.

Subsequently, the case came to be adjourned. On 20.05.2014 the Respondents filed reply on the issues raised on 13.03.2014 and it was submitted on behalf of the Applicant that it must be enquired into as to in what circumstances despite directions issued by the Hon'ble Supreme Court in the case of T.N. Godavarman Thirumulkpad Vs. Union of India (1997) 2 SCC 267, mining activity is being permitted by the State Government in the forest area.

With a view to facilitate the response of the State Government, the case was adjourned to 18.07.2014. On 18.07.2014 none appeared for the Applicant and as such the case was adjourned to 14.08.2014. On 14.08.2014 also none appeared for the Applicant and as such in the interest of justice one more opportunity was granted and case was adjourned for 03.09.2014 with specific direction that in case none appears for the Applicant, the matter shall be heard and decided finally.

Despite the above directions, none has appeared for the Applicant today and in these circumstances, the matter is heard finally.

As we have indicated above, in the original Writ Petition the issue raised was general in nature as also in the relief clause. However, it appears from the reply submitted by the State Government on 25.09.2006 that the Applicant confined himself to the issue of illegal mining of diamonds in forest areas in District Panna (M.P.).

It is further corroborated by the fact that on 13.03.2014, when the case was heard, four issues were highlighted and identified for consideration and on which the response of the Respondents was sought by the Tribunal which also incidentally relates to illegal mining of diamonds in the District Panna more particularly in the forest areas allegedly contrary to the provision under the Forest (Conservation) Act, 1980 and other related Acts which prohibit non-forest activities in the forest areas.

We would first deal with the reply that was submitted by the Respondents before the Hon'ble High Court of Madhya Pradesh on 25.09.2006. It was submitted that as far as the mining of diamonds by the National Mineral Development Corporation Ltd. (in short, 'NMDC'), a Government of India Undertaking is concerned, no doubt it has been granted with the mining lease in Panna as also in the forest area but it was submitted that after the issue was raised, the mining activity came to be stopped by the Ministry of Environment and Forests for a long period from 28.08.2005 to 19.06.2009. After obtaining the Forest Clearance (for short, 'FC' on 19.06.2009, the Corporation resumed the mining activity in Panna in the area in question. The FC was granted after due consideration as was submitted by the Learned Counsel for the State that the Corporation already had the necessary Environmental Clearance (in short, 'EC') which was granted to it on 13.01.2006. On the basis of the above, it was submitted by the Learned Counsel for the State Government that though the NMDC would have been in a better position to give the details of the same but since they are not a party to this application and with the information which is available with the Learned Counsel he has submitted that all the mining activities by the Corporation were stopped during the period it was noticed that they did not have requisite FC and it was only after the same was granted on 19.06.2009 in pursuance of Hon'ble Supreme Court orders in I.A. Nos. 1485 & 1507 dtd. 13.08.2008 in the T.N. Godavarman case (supra) that the Corporation resumed the mining activities.

We presume that with the filing of this application in August 2005 and the matter having been highlighted, presumably cognizance has been taken on the issue with regard to mining being carried out without the FC and the Corporation was directed to stop such activity on 22.08.2005 as we have already stated that the application came to be filed on 05.08.2005 before the Hon'ble High Court of MP. Thus, the position that stands now is that the said Corporation is carrying out the activities, as was submitted by the Learned Counsel for the State, with proper permissions and clearances under the Environment (Protection) Act, 1986 and Forest (Conservation) Act, 1980.

As regards the averments made in the application that the illegal mining is being carried out and such activity is not restricted to areas for which the leases have been granted and mining is going on in the garb of such permission in different areas particularly in the forest areas, are concerned, we find that no specific instances of such areas and persons have been identified or mentioned in the pleadings. There is also no mention with regard to such activities being carried out either by the Corporation or by individuals. In the absence of any such information or specific pleadings to that affect, it is difficult for the Tribunal to proceed to examine the aforesaid issue.

As far as the mining by private individuals is concerned, in response to the queries which were raised by the Tribunal after hearing the Applicant and the Counsel as enumerated in the order dated 13.03.2014, Learned Counsel for the State filed before us additional submission on 20.05.2014.

It was submitted by the State that apart from the mining being carried out by the NMDC, Prevailing Customary practice of shallow mining of diamonds on private and revenue lands by local miners is being practiced in the area in question in the Panna District. It was submitted that this practice has been going on from time immemorial and it is recognized as customary law and with the formation of erstwhile Vindhya Pradesh and subsequently Madhya Pradesh the said customary mining has been permitted in the area. It has further been made clear that no shallow mining for diamonds is permitted in any forest area but confined to revenue / private lands as distinct from forest land. It has also been stated that with a view to recognize and also to regulate the aforesaid system of mining by local persons, the State Government vide Circular dated 28.05.2004 has informed the District Collector or, Panna regarding the publication of Heera Parichalan Nidhi Rules, 2000 for regulating and recognizing the aforesaid Shallow Mining of Diamonds. It has been submitted that the salient features of the above permissions are that the mining leases for plot size of 8x8 meters are granted to individual local persons who may be the applicants. The terms of such leases have been highlighted in Para 4 of the reply submitted on 20.05.2014 as under:

"i. License for shallow mining will be granted for plots of land measuring 8m x 8m to every miner Applicant.

ii. Applications for the plots will be made in the prescribed form.

iii. All such applications will be numbered and the plot will be allotted as per choice of the Applicant in each case.

iv. The Diamond Officer will get such shallow mining area properly demarcated, into plots of 8m x 8m, each plot should be numbered and allotted to the applicant in order. When one such area has been exhausted another contiguous area should demarcated into plots and similarly allotted.

v. The fees for such plots of 8m x 8m will be Rs. 200/- (Rupees two hundred only)

vi. The licencees will be required to divide each plot allotted to them into two, they will first work the half portion and excavate all the diamondiferous gravel from this portion and keep the earth on the other half. He will then fill up completely this portion already dug and then will begin working in to the other half. This too will have to be completely filled up by the licencee before applies for another such plot.

vii. Only one plot at a time will be allotted an Applicant. He can, however, apply for another plot if the allotted plot does not contain any diamondiferous gravel or proves to be an old worked out plot in each cases the allotted plot is to be carefully inspected before granting a licence for another plot. Cases of dispute involving priority for new plot will be submitted to the Collector Panna for orders. Aggrieved parties will have a right to appeal to Government.

viii. Prepare supervision in all the working area will be done regularly by the Diamond Officer, Panna.

ix. The diamond found in allotted plots will be brought by the licencee or his representative will the Sepoy on duty to the Diamond Officer through the Diamond Inspector who shall arrange to have them tested, weighed, and described and then take it into Government custody. At the same time a receipt in the prescribed form for the diamond will be given by the Diamond Officer.

x. The state royalty will be 20% (11.50% current) on the sale value of the diamond, and the balance i.e. 80% of sale value of diamond will be paid to the licencee. The highest bid recorded at the periodical auction for sale of diamond, will be the sale value of the diamond for the purpose of assessing royalty. The Licencee, the owner of the diamond will have the liberty to bid for his own diamond.

xi. The annual license will be granted by the Diamond Officer any time during the year, but the period of currency of licences will be start on 1st January and all annual licencees will expire on December 31st. A licencee may get his licence renewed for the allotted plot one month before the expiry of the current licence. No limit will be imposed on such renewal.

xii. The licencee has to work in skilful and work like manner. The licencee has to fill the pits dug out by them compulsorily, if in case the licencee fails to comply with the condition, a show cause notice will be served to remedy the breach within 15 days. If the condition is not fulfilled within the stipulated time the licencees will be debarred from getting another licence for shallow mining of diamond in future.

xiii. The Government shall be entitled to include any plot granted under these annual licences in any new regular mining lease. In such cases the licencees will not be entitled for the renewal, claims and compensation. The copy of letter dated 28.05.2001 along with the rules is marked and enclosed."

It has also been submitted that such licences for Shallow Diamond Mining are sanctioned annually commencing from 1st January and ending on 31st December of every calendar year. The Respondents have also annexed the list of such licences having been granted by the State in the form of Annexure R/12 C for the year 2014 which indicates the names of persons, area/village in which such permission has been granted, Khasra No. of land, classification of the land i.e. private / revenue land and lastly the period for which it has been granted. The total number of such permissions granted for the year 2014 is 550 as per the aforesaid list.

We therefore, find from the response submitted by the State both under its reply dated 25.09.2006 before the Hon'ble High Court as well as the response dated 20.05.2014 submitted before this Tribunal that so far as the mining activity by the NMDC, a Government of India undertaking is concerned, no doubt such activity has been permitted to be carried out in forest area with due permission both under Forest (Conservation) Act, 1980 and Environment (Protection) Act, 1986 and notifications issued thereunder. As far as the mining activities by the private individuals are concerned, the same has been recognized as a customary practice from time immemorial as submitted by the Learned Counsel for the State and since 2001, the same is being regulated by rules framed by the Government in this behalf and as per the terms and conditions which have been reproduced above which highlights inter-alia that such permissions are limited to an area of 8x8 meters, the same are either granted on private / revenue land (excluding Forest Land) and such permissions irrespective of the date of their commencement, expire on 31st December of every calendar year. Thus, we find that adequate measures and safeguards have been put in place for regulating the activity of mining and no illegal mining was permitted. This has been reiterated by the Respondents in Para 9 of the response dtd. 20.05.2014 which has been filed before us which reads:

".........That all the Shallow mining activities are conducted in compliance of the prevailing rules and regulations, it is further submitted that illegal mining is not conducted anywhere in Panna District."

While we have accepted what has been submitted by the Respondent State, however the need of the hour for the State and its functionaries including the Forest Officials is to ensure that no illegal mining is allowed to be carried out in the forest areas including the Panna Wildlife Sanctuary, Panna National Park and Panna Tiger Reserve and in case such mining of diamonds or any other mineral is found, the same shall be stopped immediately and action taken against the persons concerned in accordance with law. It shall be the responsibility of the District Collector through officials of the Mining Department, Revenue Department and Forest Department to ensure that such activity is not permitted and if any illegal mining is noticed it shall be immediately taken care of and stopped and persons brought to book.

In the above facts and circumstances and with the above directions we dispose of the Original Application No. 24 of 2014. No orders as to cost.