HC dismisses bunch of petitions challenging cancellation of mining auction

02/05/2020

Jammu, May 1: In bunch of petitions challenging the impugned communication dated 26.2.2019, whereby the right of the petitioners to extract the minor minerals from the blocks allotted to them has been taken away, has been issued by the respondent No.2 without providing them an opportunity of being heard, Justice Sanjeev Kumar after hearing battery of lawyers for the petitioners, dismissed the bunch of petitions.
While dismissing the petitions, Justice Sanjeev Kumar observed that failure of the petitioners to complete the requisite formalities including obtaining of environmental clearance from the statutory authority, if not, attributable to them is equally not attributable to the respondents. If this Court were to assume that the petitioners had applied to the SLEIAA well within time, and had completed all the requisite formalities as enjoined by law, even in that event, the failure on part of the SLEIAA to grant environmental clearance in time cannot be attributed to the respondents. In that event, the instant case would fall in the category of the contract which has been frustrated due to an act of another beyond the control of parties and this would relieve the parties of their obligation to perform their reciprocal promises.
Court further observed that independently of the aforesaid, this Court does not see any justification in the argument of the learned counsel representing the petitioners that they had no legal obligation to deposit the remaining 50% of the bid amount without first having been given the environmental clearance by the SLEIAA. The obligation to pay the remaining 50% of the bid amount was independently of the obligation to submit the approved mining plan and the environmental clearance. In that view of the matter, strictly speaking, even the doctrine of frustration of contract would not come into play.
Justice Sanjeev Kumar further observed that the petitioners have relied upon the transitory provision in the form of Rule 104-A introduced in the Rules of 2016 to buttress their argument that the respondents at one point of time did appreciate the difficulty of the petitioners in obtaining the environmental clearance from the prescribed authority and thus, permitted them the extraction and transportation of the minerals on royalty basis from their respective blocks without insisting for mining lease and environmental clearance from the competent authority.
Court noticed this submission with utmost pain and anguish. This is so because the government under Section 15 of the Act of 1957 is not empowered to create a provision in the Rules, which has the effect of nullifying the statutory requirement of adequately safeguarding the environmental concerns in the process of mining and leases and acting contrary to the judgment rendered by the Supreme Court in the case of Deepak Kumar (supra). It may be noted that immediately upon framing of the Rules of 2016, the government vide SRO 133 dated 20.04.2016 inserted Rule 104-A.
Justice Sanjeev Kumar further observed that from a perusal of Rule 104-A, as it was initially inserted, it clearly transpires that it was intended to provide a transitory measure and to ensure uninterrupted supply of minor minerals to the consumers. Essence of the provision was to enable the extraction of minor minerals to any existing quarry holder or to any person extracting such minor minerals or for transportation of such minerals on royalty basis. The provision provided for issuance of permission in this regard only for a period up to 31.07.2016. The object of the transitory provision aforesaid when it was inserted in the Rules of 2016, was apparent and understandable. The Rules of 2016 were promulgated only on 31.03.2016 and the process of allotment of mining leases in accord with the aforesaid rules would have taken some time. But the way in which the aforesaid provision was subsequently substituted vide SRO 269 dated 12.08.2016 and, thereafter extended from time to time, speaks volume about the manner in which the provisions of the Act of 1957 and the Rules framed by the Government vide SRO 105 of 2016 were jettisoned. It is under this transitory provision, successful bidders like the petitioners were permitted to carry on mining operations in the blocks for which they had been issued Letters of Intent without environmental clearance from the SLEIAA.
Court further observed that the provision aforesaid made it possible for the successful bidders like the petitioners to explore the minerals indiscriminately without taking requisite precautions for protection of environment and control of pollution while conducting mining operation(s) in the mining mineral areas. Rule 104-A, on the face of it, is in violation of Section 4 of the Act of 1957, which unequivocally provides that no person shall undertake any mining operation in any area except under and in accordance with the terms and conditions of mining lease granted under the Act and the Rules made thereunder. The Rules of 2016 also re-enforce this dictate of law and provide that no person shall undertake any mining operation or activity in respect of any minor mineral in any part of the State except and in accordance with the provisions of the Rules of 2016.
Court further said that vires of Rule 104-A is not under challenge in these petitions and that the provision has also outlived its life and lost its efficacy as the same has not been extended beyond 30.4.2019. It has also been brought to my notice that even the National Green Tribunal has intervened in the matter and has stopped all mining and quarry operations in the Union Territory of J&K carried out without environmental clearance.
Justice Sanjeev Kumar further observed that this Court had ventured to discuss the impact of Rule 104-A on the instant litigation for the reason that the same was relied upon by the petitioners to buttress their submission that once the respondents had realized the difficulty of the petitioners in obtaining environmental clearance, it was not fair on their part to scrap the whole process in one go and that too without there being any good reasons to do so. Besides, it was necessary to show abhorrence to the "hand-in-glove" machination of the vested interests. I am devoid of any material to know the exact environmental degradation caused by these indiscriminate mining operations carried out by the petitioners and others under the shelter of Rule 104-A inserted and substituted in the Rules of 2016. Let the competent authority in the government take cognizance of the issue as also the appropriate action that may be warranted under law. Suffice it to say that Rule 104-A was not only in violation of the provisions of the Act of 1957 and the rules framed thereunder but was a clear affront to the Environmental (Prote-ction) Act, 1986 and the rules framed thereunder.
With these reasons, Court fined no merit in these writ petitions and the same are, accordingly, dismissed. However, it is clarified that this judgment shall not come in the way of the petitioners or any person to claim refund of their bid amount(s), if any, lying with the respondents or to sue the respondents in appropriate proceedings for any loss or damage, if any, suffered by the petitioners, as may be permissible in law.

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