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2020 DIGILAW 230 (MP)

Ramkumar Singh And Others v. State Of M. P. And Others

2020-02-12

RAJEEV KUMAR SHRIVASTAVA, SHEEL NAGU

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JUDGMENT 1. Present petition seeks review/clarification of the orders passed on 15.04.2019 and 09.07.2019 passed in WP.14921/2018. 2. Learned counsel for the rival parties are heard on the question of admission. 3. WP.14921.2018, in which the orders under review were passed, was filed as a PIL raising the public cause that the mining lease for extraction of stone and making gitti by crushing plant granted by the respondents within 300 meters of the stop dam built for irrigation purposes has caused hairline cracks in the wall of the said stop dam prejudicing the very existence of dam and also jeopardizing the irrigation prospects of farmers of the area. 4. The said Writ Petition i.e. WP.14921.2018 stood disposed of on 13.11.2018 in the following terms: ' 6. There is no material on record to show that such requirements and terms and conditions of the permission granted by the Director, Mine Safety, have been followed. Petitioner has also not taken pains to implead the lessee as a party. However, looking to the fact that there are serious allegations in regard to breach of stop dam due to use of excessive explosives and excessive exploitation of the mining lease, this Court is of the opinion that directions issued in W.P.No.4133/1005 (PIL) as enumerated above will have to be observed by the authorities and an action taken report will be submitted jointly by Water Resources Department, Mines and Minerals Department of the State Government, Collector Gwalior and M.P. Pollution Control Board alongwith office of Director, Mine Safety, Govt. of India, so to protect the interest of the farmers and prevent any further damage to the stop dam. Report will also be furnished by the Executive Engineer, Water Resources Department, as to the steps taken by them to close the breached area of stop dam and mechanism to prevent breaches in the stop dam in future. " 5. While disposing of WP.14921.2018, the Court directed the respondents to file compliance report on or before 20th Feb. 2019 and listing of WP.14921.2018 under caption 'Reporting Compliance'. 5.1 Thereafter, the writ petition was listed on 22.02.2019 under caption 'Reporting Compliance' and was listed repeatedly before the Bench on various occasions including on 15.04.2019 when this Court passed the first order under review directing that no mining activity will be carried out in the vicinity of 500 meters radius of the Dam until further orders. 5.1 Thereafter, the writ petition was listed on 22.02.2019 under caption 'Reporting Compliance' and was listed repeatedly before the Bench on various occasions including on 15.04.2019 when this Court passed the first order under review directing that no mining activity will be carried out in the vicinity of 500 meters radius of the Dam until further orders. Whereafter, the second order under review dated 09.07.2019 was passed consigning the WP.14921.2018 to record room after being satisfied with the compliance report filed by the State with further opportunity to the petitioner to revisit the Court in case deficiencies/shortcomings are found. 6. The error apparent on the face of record pointed out by the learned counsel for the review petitioners who are three in number who were though not party before the writ court but are the quarry lease-holders, that they have been granted leasehold rights after following the due process of law beyond the prohibitive area of 100 meters from the dam which is required to be maintained as per Rule 5(2)(d) of M.P. Minor Mineral Rules 1996 ('1996 Rules' for brevity). 6.1 For ready reference and convenience, clause (d) of subrule (2) of Rule Rule 5 of 1996 Rules is reproduced below: '5 . Restrictions on the ground of [trade quarry] or quarry case.- (1) xx xx xx; (2) No quarry lease, or [trade quarry] shall be granted in respect of an area:- (a) xx xx xx; (b) xx xx xx; (c) xx xx xx; (d) except for the mineral sand or bajri, within a distance of 100 meters from river banks, reservoir, canal, dam, any natural water course or any water impounding structure and 50 meters from nalla. " 6.2 On the anvil of aforesaid Rule which restricts mining operations around within 100 meters radius of a reservoir/dam, it is submitted by the review petitioners that the quarry lease granted to them is beyond 100 meters of the stop dam and has thus been granted after following due process of law. Merely because by order under review dated 15.04.2019, this Court had prohibited mining activities within 500 meters of the dam, the rights otherwise available to the petitioners under the validly granted quarry leases cannot be availed. 7. Merely because by order under review dated 15.04.2019, this Court had prohibited mining activities within 500 meters of the dam, the rights otherwise available to the petitioners under the validly granted quarry leases cannot be availed. 7. Another ground which is raised by learned counsel for the review petitioners is that after disposal of WP.14921.2018 on 13.11.2018, this Court became functus officio and therefore could not have modified, added or subtracted from the order dated 13.11.2018 when the matter was listed only for compliance. In other words, it is submitted by learned counsel for the review petitioners that the process of adjudication came to an end on 13.11.2018 on disposal of writ petition whereafter the only aspect open before the Court was to ensure compliance of the said order. The Court has no power or authority under law to cause any modification by way of addition or subtraction in the said order. Conclusively, it is submitted that the prohibition against the mining activities within 500 meters periphery of the dam was an additional direction which did not form part of the order dated 13.11.2018 of disposed of WP.14921.2018 and therefore to that extent the order under review needs to be recalled by exercise of power of review since error apparent on the face of record is palpable. 7.1 Learned counsel for the review petitioners has relied upon 'Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and Others [ (2014) 3 SCC 373 - Para 19 & 20]' , 'Bihar Finance Service House Construction Cooperative Society Ltd. Vs. Gautam Goswami and others [ (2008) 5 SCC 339 , Para 32 to 34]' . These decisions relate to the contempt jurisdiction of High Court and the Supreme Court but not to the review jurisdiction and thus are of no avail to the review petitioners. Learned counsel for the State on the other hand has relied upon 'Jaipal Singh and others Vs. State of M.P. and others [ 2007 (3) M.P.L.J. 97 ]' , concluding part of which has already been quoted in the order dated 13.11.2018 disposing of WP.14921.2018 and thus needs no further elaboration. 8. It is not disputed at the bar that the prohibitive periphery prescribed by law around a dam for carrying out mining activities is 100 meters as per Rule 5(2)(d) of 1996 Rules. 8. It is not disputed at the bar that the prohibitive periphery prescribed by law around a dam for carrying out mining activities is 100 meters as per Rule 5(2)(d) of 1996 Rules. As such it appears that this Court, while passing one of the orders dated 15.04.2019 as an added precaution and to ensure that not the slightest damage is suffered by the dam, prescribed larger prohibitive zone of 500 meters around the dam. The anxiety of the Court while passing the order under review was based on the reasoning of protecting interest of large number of farmers for whom dam was the only source of irrigation. 8.1 However, it seems that the aspect which this Court lost sight of while passing the order under review is that at the time when the order under review was passed, WP.14921.2018 was listed only for compliance but not for adjudication. Adjudicatory process came to an end in WP.14921.2018 on 13.11.2018 whereafter this Court while ensuring compliance could not have passed any order or direction different from the one which was passed on 13.11.2018 in Writ Petition while finally disposing it of. Thus, it is held that prescribing of a larger prohibitive radius of 500 meters for mining activities around the dam by order under review dated 15.04.2019 was an error apparent on the face of the record. 9. From the conspectus of above discussion, what comes out loud and clear is that the error as detected in the order under review which is apparent on the face of record deserves to be rectified by review. 9.1 Accordingly, review petition stands allowed to the following extent: (i) The order under review dated 15.04.2019 passed in WP.14921.2018 is reviewed to the extent of substituting the expression 500 meters radius' with 'prohibitive radius prescribed under Rule 5(2)(d) of 1996 Rules r/w conditions of lease deed and any order of the Apex Court in that regard'. (ii) The other order under review dated 09.07.2019, in the considered opinion of this Court, does not deserve any interference under review jurisdiction. No order as to cost.