Explore a fascinating legal analysis delving into the court’s perspective on the recommendation for cancellation of sand mining leases. Discover the intricate legal considerations and implications surrounding this crucial issue. Stay informed on the latest developments in this complex legal landscape.
Facts
- The period of actual mining of sand under TWP should be adjusted against the five-year lease period.
- Temporary Work Permits were issued to 80 out of the 82 LoI holders to carry on mining operations pursuant to the interim order.
- The State Government stopped mining activities pursuant to the court order on 16.11.2017.
- A notification was issued by the State of Rajasthan on 28.12.2017 regarding Rule 51 of the 2017 Rules, permitting grant of short-term permits for excavation of sand in Khatedari lands only for Government-related works or organizations aided by the Government.
- The 2017 Rules were amended on 25.06.2018, enabling the Government to grant mining lease in Khatedari lands to Khatedars.
- Sub-rule (4) of Rule 5 of the 2017 Rules was amended on 28.02.2018, extending the time period for fulfillment of conditions of LoIs to 13 months.
- Tenders were received for 105 plots, and the MoEF&CC will issue EC in respect of all valid LoI holders recommended by the EAC within three months.
- The State Government will auction sand mining leases after proper ground demarcation and assessment of extractable sand resources.
- An Empowered Committee was constituted by the State to settle claims of excess payments collected from LoI holders during the TWP period.
- Interim order dated 25.11.2013 was extended on 24.02.2014 and 27.03.2014
- Recommendation for exemplary penalty of Rs.10 lakhs per vehicle and Rs.5 lakhs per cu.m of sand seized for violation of court order
- State of Rajasthan objected to cancellation of Khatedari leases citing utilization of mineral wealth in agricultural land
- CEC recommendation for termination of Khatedari leases within 5 km of river bank and restriction on granting fresh Khatedari leases without court approval
- High Court dismissal of writ petitions on 09.04.2019
- CEC recommendation for no fresh Khatedari leases without court approval
- Empowerment of State Governments under Section 23C of MMDR Act for preventing illegal mining
- Court direction for formulation of rules by State Governments / Union Territories in line with Model Guidelines
- Issuance of 2016 Sand Mining Guidelines pursuant to directions by Court and NGT
- Refusal by High Court for request made by State Government on 21.10.2013
- Implementation directive by Court to State Governments and Union Territories for MoEFCC recommendations and Model Guidelines
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Arguments
- The Khatedars have been acting in accordance with the conditions of their lease.
- The CEC committed an error in recommending cancellation of their mining leases.
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Analysis
- State Government to review the amendments to Rule 5(4) of RMMCR, 2017 to facilitate sand mining lease execution.
- Recommendation for using Transport Permits with bar codes for tracking sand transportation.
- NGT directed MoEFCC and State Governments to review monitoring mechanisms for sand mining.
- CEC recommended issuing EC to LoI holders without scientific replenishment study report as pre-condition.
- Highlight on involvement of sand mafia in illegal sand trade by Khatedars and authorities in Rajasthan.
- Recommendation by CEC for cancellation of Khatedari leases within 5 km from river banks and for lease violation.
- State request for MoEFCC to revisit 2020 Sand Mining Guidelines for excavation near river beds.
- Illegal mining by sand mafia has led to attacks on members objecting to unlawful excavation.
- Approval of CEC recommendation to terminate Khatedari leases within 5 km from river beds with court permission.
- Prescription in 2020 Sand Mining Guidelines for mining on Khatedari lands based on replenishment possibility.
- Granting of 194 mining leases on Khatedari lands near river banks despite court order.
- State view on excessive penalties recommended for illegal sand mining by CEC.
- CEC recommendation for exemplary penalties per vehicle and per cubic meter of sand seized.
- The ‘Polluter Pays’ principle mandates that the polluter is liable for compensating the victims of pollution and restoring environmental degradation.
- Remediation of damaged environment is essential for sustainable development, and the polluter must bear the cost of both compensating individuals affected and reversing ecological damage.
- The National Green Tribunal (NGT) addressed the scale of compensation for illegal mining in the case of National Green Tribunal Bar Association v. Virender Singh.
- NGT approved a report by the Central Pollution Control Board on the scale of compensation for mining violations based on the ‘Polluter Pays’ principle.
- The 2020 Sand Mining Guidelines specify the assessment of environmental damages due to illegal mining by a committee with expertise and representation from relevant fields and authorities.
- Guidelines for assessing ecological damages are to be followed as prescribed by State Governments, Pollution Control Boards, or other relevant authorities.
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Decision
- CEC recommended penalties for illegal sand mining to recover price of illegally-mined mineral, in addition to rent, royalty, or tax.
- CEC’s recommended penalties are separate from penalties that can be imposed by the State Government under Section 21(5) of the Act.
- CEC did not provide a clear basis for the recommended exemplary penalties of Rs. 10 lakh per vehicle and Rs. 5 lakh per cubic meter of sand.
- CEC directed to follow NGT directions for imposing penalties and determining compensation, as per the 2020 Sand Mining Guidelines.
- CEC to determine penalties and compensation afresh and submit a report to the Court within eight weeks.
- All CEC recommendations, except ‘J’, approved for immediate implementation.
- Cost of restoring environment and ecological services to be part of the compensation paid by the project proponent, in line with NGT orders.
- Section 21(5) of the MMDR Act empowers State Government to take action against illegal mining.
Case Title: BAJRI LEASE LOL HOLDERS WELFARE SOCIETY THROUGH ITS PRESIDENT Vs. THE STATE OF RAJASTHAN (2021 INSC 717)
Case Number: SLP(C) No.-010587 / 2019
