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2025 DIGILAW 224 (HP)

Gram Panchyat Pahlu v. State of H. P.

2025-02-28

G.S. SANDHAWALIA, SATYEN VAIDYA

body2025
JUDGMENT : G.S. Sandhawalia, C.J. The present Writ Petition has been preferred by Gram Panchayat Pahlu by way of public interest litigation seeking the relief of cancellation of mining lease renewed on 21.02.2022 (Annexure P-2) in favour of private respondent No.7. 2. The petitioner has also prayed that in view of the Resolution passed on 07.03.2022 (Annexure P-3) by it, action be taken by the official respondents, wherein the renewal as such, in favour of private respondent No.7 was objected to, on the ground that there was no, ‘No Objection Certificate’ issued by the petitioner/Gram Panchayat and no inspection was done of the site in question while granting the lease. 3. The necessary averment is made that the writ petition has been filed by moving a Resolution by the members of Gram Panchayat giving authority to the duly authorized person to file the petition in the larger interest of the public, since most of the people belong to the lower stratum of the society and are not aware of the rules, norms and regulations as such, they are incapable of approaching the Court. 4. The case of the petitioner is that earlier a mining lease was granted in favour of the private respondent and the lease expired in the year 2005-2006. The respondent-Department renewed the mining lease on 21.02.2022 for an area measuring 4-27-95 hectares on the Government land in the form of river bed bearing Khasra No.1379/2/1 in Mohal Bairi, Mauza Pahlu, Tehsil Barsar, District Hamirpur, Himachal Pradesh, for a period of five years i.e. upto 2027. 5. A reference has been made to the resolution dated 07.03.2022, on the ground that the damage was being caused to the agricultural land of area, water sources and bridges. The copy of the same had been sent to the Deputy Commissioner, Hamirpur, who further forwarded the same to the Mining Officer, Hamirpur, for examining the matter and taking necessary action on 31.03.2022 (Annexure P-4), but no action has been taken on the said communication. The leased land is located between two check dams, one of which has already been constructed at the cost of Rs.10,00,000/- (Rs. Ten lakhs) approximately by the State Government and another one has been sanctioned by the State Government. As such, the mining activity is badly affecting the check dams and water flow. The averments were also made regarding sanction of Rs.10,00,000/- (Rs. Ten lakhs) approximately by the State Government and another one has been sanctioned by the State Government. As such, the mining activity is badly affecting the check dams and water flow. The averments were also made regarding sanction of Rs.10,00,000/- (Rs. Ten lakhs) for the construction and maintenance of link road from Beri to Kandoh and that the road was at a distance of 10-15 metres from leased land and mining activity is to be carried out by the stone crusher which will damage and obstruct the said link road on account of land-slides in rainy reason and similarly, reference has also been made to similar link road situated between Beri and village Talasi. 6. The averments are also made regarding the fact that the water shortage has occurred due to lowering of ground water level and mining activity has dried all the hand pumps/tube-wells, adversely affecting the area. 7. It was pleaded that in the year 1997, respondent-Department had granted a mining lease over an area measuring 368-15 kanals for a period of five years after completing all the codal formalities, including ‘No Objection Certificate’ from the concerned Gram Panchayat. The said mining lease has been renewed for a further period of five years w.e.f. 29.03.2002 to 28.03.2007 and private respondent No.7 had again applied for the renewal of mining lease, however, the concerned Panchayat had refused for issuance of the NOC. Private respondent No.7 was directed to submit fresh Resolution and on account of letter of the Gram Panchayat filed on 05.07.2008, the State Geologist, H.P. had inspected the site and granted ‘No Objection Certificate’. Accordingly, the mining lease was again renewed in favour of private respondent No.7 w.e.f. 29.03.2007 to 28.03.2012. 8. A reference has been made to the Mines and Minerals (Development and Regulation) Act, 1957 and Himachal Pradesh Minor Minerals (Concession) and Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015 to hold that under Rule 16 (2), there is no consultation required from the concerned Gram Panchayat. Thus, the plea was taken that the renewal was done from 07.03.2022 to 06.03.2027 for feeding the Stone Crusher Unit, namely, M/s Kailash Stone Crusher. 9. Respondents have filed reply to the writ petition denying the averments contained in the writ petition. 10. Thus, the plea was taken that the renewal was done from 07.03.2022 to 06.03.2027 for feeding the Stone Crusher Unit, namely, M/s Kailash Stone Crusher. 9. Respondents have filed reply to the writ petition denying the averments contained in the writ petition. 10. While referring to Resolution dated 07.03.2022, which had been forwarded to the Mining Officer, Hamirpur, it is pleaded that the report of the Mining Officer, Hamirpur dated 27.10.2022 (Annexure R-1) has been received and nothing adverse has been found against the respondent No.7. The renewal has been done on the recommendations of the Joint Inspection Committee, constituted under the Chairmanship of the concerned Sub-Divisional Officer (Civil) and after obtaining the Mining Plan as well as Environment Clearance, as per the provisions of Law. 11. Resultantly, reliance was placed upon the report dated 27.10.2022 (Annexure R-1) to plead that the minimum distance was as such provided for and on account of lack of consultation, the action could not have been faulted, as 2015 Rules did not provide for mining consultation. 12. The respondent No.5-State Pollution Control Board in its reply has taken a plea that the consent to establish the said stone crusher was granted by the State Board vide letter dated 16.06.1997 (Annexure R-5/1) and further renewal was granted on 18.05.2022 (Annexure R-5/2) which is valid upto 21.03.2025, after obtaining the permanent Registration, Mining Lease, Mining Plan and Environmental Clearance and ensuring the proper installation of Pollution Control Devices by the unit. It was mentioned that no such resolution was ever addressed to the State Pollution Control Board and permission had been granted only after the prior permission given by the Industries Department. 13. The reply of private respondent No.7 was to the extent that the renewal had been done by reducing the area from 368-15 Kanals to 277 Kanals. Now, the mining has been permitted on 245 Kanals and private respondent No.7 did not engage in any activity from 29.03.2012 to 06.03.2022, as the renewal of the mining lease was not done. Further, the plea was taken that only the land measuring 112 kanals was permitted for mining activity and the said respondent was performing mining activity as per law and social activity was also done by making donations for construction of toilets, village temple and cremation ground etc. Further, the plea was taken that only the land measuring 112 kanals was permitted for mining activity and the said respondent was performing mining activity as per law and social activity was also done by making donations for construction of toilets, village temple and cremation ground etc. It was averred that the renewal has been done as per the provisions of Rules, 2015 and no consultation was required from the Gram Panchayat. The necessary averments were made that it was done as per the parameters of the land. 14. The necessary rejoinder (sic replication) was filed by the petitioner, challenging the Resolution, which had been passed in the years 2002 & 2007, by passing a fresh resolution dated 20.12.2022 (Annexure-RJ/1). Various pleas were taken regarding the fact that initial renewal of the mining lease was wrong and damage was being caused to the agricultural land of the area, water sources and bridges on account of the mining activities. Reasoning for allowing the Writ petition: 15. The petitioner has placed on record notification dated 24.08.2013, wherein plea was taken that the renewal is to be done only after the consent and opinion of the concerned Gram Panchayat is obtained. Reliance was placed upon letter dated 01.07.2013 (Annexure A-3), issued by the Department of Industries, Geological Wing, wherein it has been mentioned that on account of the Resolutions passed on 03.08.2011 & 06.08.2011, the Panchayat has not given clear-cut consent for renewal of the mining lease and in the absence of ‘No Objection Certificate’ from concerned Gram Panchayat, the case for renewal could not be forwarded for approval and thus, the matter was requested to be taken up with the competent Authority for issuance of clear-cut NOC from the concerned Gram Panchayat. Therefore, the mining lease could not be processed further. 16. Keeping in view of the said document vide order dated 21.05.2024, the Coordinate Bench of this Court had directed respondent Nos.1 to 4 and 6 to place on record Joint Inspection report prepared by the said respondents’ representatives on the basis of which the mining lease in question was allotted to 7 th respondent and also renewed on 21.02.2022, which is a subject matter of challenge, in this petition. 17. In such circumstances, the renewal of the mining lease was done on the basis of the Joint Inspection Report. 17. In such circumstances, the renewal of the mining lease was done on the basis of the Joint Inspection Report. The perusal of the said report would go on to show that the date of Joint Inspection is 26.11.2011, which was prior to the rejection done on 01.07.2013 when the consultation and NOC from the Gram Panchayat was mandatory. It is, thus, apparent that the inspection was done prior to the Notification of 2013, which also provided that the consent of the Gram Panchayat had to be obtained, which was done away by the 2015 Rules. 18. It is to be noticed that it is the admitted case of the State that Rules, 2015 are applicable and that the consent of the Gram Panchayat is not required. Para 2 of the preliminary submissions of the written statement of respondents No. 1 to 4 and 6 read as under: “2. That it is humbly submitted that in the year, 2015, the Respondent State in exercise of the powers conferred by Section 15 read with section 23 C of the Mines and Minerals (Development and Regulation) Act, 1957 , has framed the Himachal Pradesh Minor Minerals (Concession) and Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015. The Rule 16 (2) of the ibid Rules, 2015 specifically provides that for the renewal of mining lease, no consultation from the concerned Gram Panchayat is required. As such, after completion of rest of the codal formalities as required in the afore Rules, 2015, the Respondent Department renewed the mining lease in favour of Respondent No. 7 for further period of five years w.e.f 07.03.2022 to 06.03.2027 for feeding the Stone Crusher Unit namely M/s Kailash Stone Crusher. As such, the Respondent Department has renewed the mining lease time to time in favour of Respondent No. 7 strictly in accordance with law.” 19. As provided under Rule 10 of 2015 Rules, the Joint Inspection has to be done. Rules 10 & 16 of the aforesaid Rules read as under:- “ 10. As such, the Respondent Department has renewed the mining lease time to time in favour of Respondent No. 7 strictly in accordance with law.” 19. As provided under Rule 10 of 2015 Rules, the Joint Inspection has to be done. Rules 10 & 16 of the aforesaid Rules read as under:- “ 10. Joint Inspection Committee.- (1) There shall be a Joint Inspection Committee in every Sub-Division which shall consist of the following:- (i) concerned Sub-Divisional Officer (Civil) Chairman (ii) concerned Assistant Conservator of Forest/ Range Forest Officer Member (iii) representative of Himachal Pradesh State Pollution Control Board Member (iv) concerned Executive Engineer, or Assistant Engineer, PWD Member (v) concerned Executive Engineer, or Assistant Engineer, I & PH Member (vi) Geologist or Assistant Geologist or concerned Mining Officer Member Secretary (2) The Joint Inspection Committee shall conduct inspection of mining/quarry site. However, for the prupose of inspection, presence of atleast four members viz. Chairman, Assistant Conservation of Forest/Range Forest Officer of Forest Department, Executive Engineer/Assistant Engineer of Irrigation & Public Health Department and Geologist/Assistant Geologist/Mining Officer is necessary and other members may issue separate No Objection Certificate (NOC). The Chairman may co-opt any other additional members in the said Committee as per the site requirement. Provided that in case of excavation of brick earth and ordinary earth/clay in private lands having an area less than 5-00 Hectares, the Committee shall comprise only of the concerned Sub-Divisional Officer (Civil), representative of Himachal Pradesh State Pollution Control Board and Mining Officer concerned. (3) The Joint Inspection Committee shall appraise the mine/quarry site and send its observation and recommendation to the State Geologist. In case the area applied for mining lease falls in Government land or attracts the provisions of the Forest Conservation Act, 1980, the report shall be countersigned by the Divisional Forest Officer concerned.” “16. (3) The Joint Inspection Committee shall appraise the mine/quarry site and send its observation and recommendation to the State Geologist. In case the area applied for mining lease falls in Government land or attracts the provisions of the Forest Conservation Act, 1980, the report shall be countersigned by the Divisional Forest Officer concerned.” “16. Period of mining lease.-(1) The period of mining lease shall be,- (a) five years for open sale of minor minerals, which can be extracted without major equipment or investments like sand, stone and bajri available in river/stream; (b) ten years for minor minerals, which require investment and equipments to develop quarries of minerals such as limestone, slates and building stones available in hill slopes; and (c) fifteen years for minor minerals serving as captive source for a stone crushing unit, available either in river/stream beds or in hill slopes: Provided that the mining lease period may depend upon the mineral reserves calculated in the Mining Plan: Provided further that the working in the leased area after the expiry of every five years after the grant of mining lease may further be allowed by the Director of Industries on the basis of review and recommendations of the Committee constituted by him for the purpose and after being satisfied that the lease area has been developed by the lessee in a scientific manner and is paying all Government dues on regular basis. The lease holder shall submit an application for review of working in the lease area before six months of expiry of every five years. On review, if it is found that lessee has not developed the leased area in a systematic and scientific manner as per the provisions of Mining Plan and he is in arrears of Government dues, the lease shall be liable to be terminated prematurely after affording an opportunity of being heard. (2) The procedure to be followed for renewal of mining lease shall be similar to the procedure as laid down for fresh grant of mining lease, except consultation with concerned Gram Panchayat. However, the application for renewal of mining lease shall be made in Form-’C’ containing requisite documents before one year of the expiry of the lease and upon payment of a non refundable fee as specified in the First Schedule. However, the application for renewal of mining lease shall be made in Form-’C’ containing requisite documents before one year of the expiry of the lease and upon payment of a non refundable fee as specified in the First Schedule. This renewal shall be subject to satisfaction of the Authority as specified in the Fourth Schedule that the mines have been developed by the lessee in accordance to the terms and conditions of the lease deed and that the substantial investments in machinery, equipments have been made by him and that the mines have been worked and developed in a scientific manner and that the lessee has been paying the scientific manner and that the lessee has been paying the Government dues regularly under the rules. (3) If an application for the renewal of the mining lease is made within the time specified in sub-rule (2) alongwith all requisite documents after completion of codal formalities and not disposed of by the Authority before the expiry of lease period, the Director by recording the reasons in writing may allow the working in the mine by an order till the renewal of such mining lease. (4) When a renewal is granted, dead rent or royalty shall be charged at the rates in force at the time of renewal but the surface rent (if applicable) shall be charged separately. (5) The mining lease granted under these rules may be renewed for one or more periods not exceeding the original period of lease.” 20. A perusal of the above Rule 10 would go on to show that Joint Inspection has to be done, which apparently was never done in the present case under the 2015 Rules. The joint inspection was done way-back in the year 2010 under the old provisions when the consent of Gram Panchayat was required. The procedure, thus, is that the application for renewal of mining lease shall be made under Rule 16 (2) in Form-’C’ before one year of the expiry of the lease and upon the payment of the non-refundable fees, as specified in the First Schedule of Rule 16 (2) of 2015 Rules. 21. It is not disputed that in the present case, the lease as such had expired in the year 2012 and it is the own case of respondent No.7 that they had never as such, mined the said area from 29.03.2012 to 06.03.2022 . 21. It is not disputed that in the present case, the lease as such had expired in the year 2012 and it is the own case of respondent No.7 that they had never as such, mined the said area from 29.03.2012 to 06.03.2022 . Therefore, a fresh application was to be filed under the Rules of 2015. 22. It is case of the State itself that 2015 Rules are applicable . It has come on record that the inspection was done way-back in the year 2011, which has now been placed on record by the State in view of the order dated 21.05.2024. It is thus apparent that the procedure prescribed in 2015 Rules was never followed and therefore, the grant of lease, as such on 21.02.2022 (Annexure P-2) is in violation of the mandatory provisions of Rules 2015 and, therefore, cannot be sustained. 23. A perusal of the renewal of lease granted would also go on to show that there is a reference to an application dated 17.3.2011 filed by respondent No.7 and therefore, it is apparent that while granting the benefit under the 2015 Rules, the application of 2011 has been considered, which is in violation of the provisions of Rules 2015. No proper inspection was done as per Rule 16 (2) of the aforesaid Rules. The application was to be filed one year prior to the expiry of the lease and the needful was never done but an earlier application filed has been processed. Apparently, on this ground, the action of the State was not sustainable having taken the plea itself that the provisions of Rule 2015 were applicable. 24. Resultantly, we have no hesitation as such, in setting aside the renewal of the mining lease dated 21.02.2021 in favour of the private respondent No.7 for the reason that the procedure prescribed in the 2015 Rules, has not been followed. 25. Accordingly, the writ petition is allowed and the mining lease renewed on 21.02.2022 in favour of the private respondent No.7 is quashed and set aside. 26. It is however, made clear that private respondent No.7 is free to apply for renewal/grant of mining lease as per the provisions of 2015 Rules and the State is free to consider the said application in accordance with the applicable provisions of law. 27. Pending miscellaneous application(s) if any, shall also stand disposed of.