Allahabad High Court
Pravesh Kumar vs State Of U.P.Thr.Secy.Deptt.Of ... on 17 April, 2013
Author: Uma Nath Singh
Bench: Uma Nath Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- MISC. BENCH No. - 3199 of 2013 Petitioner :- Pravesh Kumar Respondent :- State Of U.P.Thr.Secy.Deptt.Of Geology & Mines,Lucknow & Ors Petitioner Counsel :- Akhilesh Kalra Respondent Counsel :- C.S.C. Hon'ble Uma Nath Singh,J.
Hon'ble Dr. Satish Chandra,J.
Order (Oral) We have heard learned counsel for parties and perused the pleadings of writ petition.
This writ petition has been filed inter-alia with the prayers for issuance of (i) a writ, order or direction in the nature of certiorari quashing the tender notice dated 08th /11th March, 2013, issued by respondent no.3, as contained in Annexure No.1, to the writ petition; and (ii) a writ, order or direction in the nature of mandamus commanding respondent no.3 not to proceed further with the processing of tender notice dated 8th /11th March, 2013, as contained in Annexure No.1 and settle the areas in question only after notifying the tender notice afresh in line with the Government Order dated 31st May, 2012 read with the judgment and order dated 29th January, 2013, passed in Writ-C No. 37725 of 2012 and other connected matters.
Learned counsel for petitioner Shri Akhilesh Kalra submitted that the impugned tender notice requires obtaining of Environmental Clearance Certificate within six months by the applicant, which according to him, is contrary to the judgment passed by a co-ordinate Bench at Allahabad in Writ-C No. 37725 of 2012 (Nar Narayan Mishra Vs State of U.P. U.P. and others) and the connected matters in the bunch. The relevant discussion about the question as to who (the State Government or the applicant ) should be required to obtain the environmental clearance, in terms of the judgment of Hon'ble the Apex Court as passed in the case reported in (2012) 4 SCC 629 (Deepak Kumar and others V State of Haryana) in the judgment of Nar Narayan Mishra is reproduced as:
"It is submitted that in case a person who has been approved for granting mining lease fails to obtain environmental clearance within a period of six months, the order granting lease shall stand cancelled is arbitrary and unjustifiable since for environmental clearance more than six months time is statutorily provided and further a person applying for environmental clearance has no control on the authorities who are entrusted to grant environmental clearance. Such condition is unjust and shall cause great prejudice to a person who has been granted lease after completion of all formalities."
Thus, according to learned counsel for petitioner, the impugned tender notice being contrary to the above observations of the Court requiring the applicant-petitioner to obtain the Environmental Clearance Certificate, would not be sustainable in law and hence deserves to be quashed.
On the other hand, Smt. Bulbul Godial, learned Additional Advocate General, appearing for the State of U.P. submitted that the State Government has already notified the rules dated 23.12.2012, which has been noticed in the aforesaid judgment by the Division Bench at Allahabad. It is further submitted that a Government order dated 26.2.2013 has been issued later in order to supplement the aforesaid rules so as to cover the subject as to who namely, the applicant or the State Government would be under the obligation to obtain the Environmental Clearance Certificate. The relevant paragraph of the Government order, being in Hindi, is produced as:-
"6. 'kklukns'k fnukWd 31 ebZ] 2012 ds izLrj&3 esa mfYyf[kr fcUnq la[;k&7 tks Ik;kZoj.k LoPNrk izek.k i= izkIr dj izLrqr djus ls lacaf/kr gS dks ek0 mPp U;k;ky; us vius fu.kZ; fnukWd 29 tuojh] 2013 ds }kjk vkSfpR;iw.kZ vo/kkfjr ugh fd;k gSA vr% ek0 mPp U;k;ky; ds mijksDr vo/kkj.k ds izdk'k esa mDr 'krZ dks 'kklukns'k fnukWd 31 ebZ] 2012 ls foyksfir le>k tk;s rFkk vc fufonknkrk dk ;g mRrjnkf;Ro gksxk fd og vkSicaf/kd Lohd`fr izkIr djus ds mijkUr 'kh?kzrj Ik;kZoj.k LoPNrk izek.k i= izkIr dj izLrqr djs rFkk Ik;kZoj.k LoPNrk izek.k i= izkIr gksus ds mijkUr gh [kuu iV~Vk foys[k fu"ikfnr fd;k tk;sxkA Learned Additional Advocate General also contends that in the gazette notification dated 6.4.2011 issued by the Government of India, Ministry of Environment and Forest, it has been provided as:
"(I) In para 6, for the existing words "An application seeking prior environmental clearance in all cases shall be made", the following words shall be substituted, namely:-
"An application seeking prior environmental clearance in all cases shall be made by the project proponent".
However, by this notification, the earlier notification dated 14th September 2006 has been amended. The unamended Section 6 of this notification is reproduced as
6. Application for Prior Environmental Clearance (EC):-
An application seeking prior environmental clearance in all cases shall be made in the prescribed Form 1 annexed herewith and Supplementary Form 1A, if applicable, as given in Appendix II, after the identification of prospective site(s) for the project and/or activities to which the application relates, before commencing any construction activity, or preparation of land, at the site by the applicant. The applicant shall furnish, alongwith the application, a copy of the pre-feasibility project report except that, in case of construction projects or activities (item 8 of the Schedule) in addition to Form 1 and the Supplementary Form 1A, a copy of the conceptual plan shall be provided, instead of the pre-feasibility report.(B to B).
Thus, the clearance has to be obtained only by the project proponent. However, according to her, this notification was probably not placed before Hon'ble the Apex Court, during the course of hearing, in the case of Deepak Kumar (supra).
On a careful analysis of rival submissions, we are of considered view that the arguments raised by learned counsel for petitioner, deserve consideration, for, the Division Bench at Allahabad in its judgment in the case of Nar Narayan Mishra as referred to hereinabove has clearly provided that a person applying for environmental clearance has no control over the authorities who are empowered to grant it. It appears that at this stage, learned Advocate General Shri S.P.Gupta, informed the Court that the Rules to be framed by the State Government in terms of the judgment of Hon'ble the Apex Court in Deepak Kumar's case (supra) was in the process. It may also be relevant to point out that in the pending Writ Petition No.8849 of 2012 (MB) (Ved Pal Singh Vs State of U.P. and others) the learned State Counsel vide order dated 18.10.2012 had given a statement that the draft Rules dealing with the Environmental clearance was pending with the Administrative Department and had prayed for placing the same after notification on the record of the Court.
Ir appears that during the period when the case of Nar Narayan Mishra was reserved awaiting verdict a copy of Rules was placed before the Allahabad Bench but the Court did not take notice thereof for the reason that it was not under challenge in the writ petition.
However, irrespective of observations of the Allahabad Bench and the statement before this Court to frame and place the Rules on record, this important aspect relating to Environmental Clearance Certificate was not touched upon.
We may also mention that in the case of Deepak Kumar (supra), Hon'ble the Apex Court has discussed the requirement of environmental clearance in great detail while extracting the relevant parts of the recommendations made by the Ministry of Environment and Forests as:
"19. For an easy reference, we may extract the issues and recommendations made by MoEF, which are as follows:
"4.0 Issues and recommendations 4.1 Definition of Minor Mineral:
The term 'minor mineral' is defined in clause (e) of Section 3 of MMDR Act, 1957 as '3. (e) 'minor mineral' means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by Notification in the official Gazette declare to be a minor mineral;
The term `ordinary sand' used in clause (e) of Section 3 of the MMDR Act, 1957 has been further clarified in rule 70 of the MCR, 1960 as '70. Sand shall not be treated as minor mineral when used for certain purpose:-Sand shall not be treated as minor mineral when used for any of the following purposes namely:
(i) purposes of refractory and manufacture of ceramic,
(ii) metallurgical purposes,
(iii) optical purposes,
(iv) purposes of stowing in coal mines,
(v) for manufacture of silvicrete cement,
(vi) manufacture of sodium silicate and
(vii) manufacture of pottery and glass.
Additionally, the Central Government has declared the following minerals as minor minerals: (i) boulder, (ii) shingle, (iii) chalcedony pebbles used for ball mill purposes only, (iv) limeshell, kankar and limestone used in kilns for manufacture of lime used as building material, (v) murrum, (vi) brick-earth, (vii) fuller's earth, (viii) bentonite, (ix) road metal, (x) reh-matti, (xi) slate and shale when used for building material, (xii) marble, (xiii) stone used for making household utensils, (xiv) quartzite and sandstone when used for purposes of building or for making road metal and household utensils, (xv) saltpeter and (xvi) ordinary earth (used or filling or levelling purposes in construction or embankments, roads, railways building).
It may thus be observed that minerals have been classified into major and minor minerals based on their end use rather than level of production, level of mechanization, export and import etc. There do exist some minor mineral mines of silica sand and limestone where the scale of mechanization and level of production is much higher than those of industrial mineral mines. Further, in terms of the economic cost and revenue, it has been estimated that the total value of minor minerals constitutes about 10% of the total value of mineral production whereas the value of non metallic minerals comprises only 3%. It is, therefore, evident that the operation of mines of minor minerals need to be subject to some regulatory parameters as that of mines of major minerals.
Further, unlike India there does not exist any such system based on end usage in other countries for classifying minerals into major and minor categories. Thus, there is a need to re-look at the definition of 'minor minerals' per se.
It is, therefore, recommended that Ministry of Mines along with Indian Bureau of Mines, in consultation with the State Governments may re-examine the classification of minerals into major and minor categories so that the regulatory aspects and environment mitigation measures are appropriately integrated for ensuring sustainable and scientific mining with least impacts on environment.
4.2 Size of the Mine Lease:
Area for grant of mine lease varies from State to State. Maximum area which can be held under one or more mine lease is 2590 ha or 25.90 sq.miles in Jammu & Kashmir. Rajasthan prescribed a minimum limit of 1 ha for a lease. Maximum area prescribed for permit is 50x50 m. In most of the States area of permit is not specified in the rules. It has recently been observed by the Punjab and Haryana High Court in its order dated 15.5.2009 that State the Government apparently granting short term permits by dividing the mining area into small zones in effect avoids environmental norms.
There is, thus a need to bring uniformity in the extent of area to be granted for mine lease so as to ensure that eco friendly scientific mining practices can be adopted. It is recommended that the minimum size of mine lease should be 5 ha. Further, preparation of comprehensive mine plan for contiguous stretches of mineral deposits by the respective State Governments may also be encouraged. This may suitably be incorporated in the Mineral Concession Rules, 1960 by Ministry of Mines.
4.3 Period of Mine Lease:
The period of lease varies from State to State depending on type of concessions, minerals and its end use. The minimum lease period is one year and maximum 30 years. Minerals like granite where huge investments are required, a period of 20 years is generally given with the provisions of renewal. Permits are generally granting for short periods which vary from one month to a maximum of one year. In States like Haryana, minor mineral leases are auctioned for a particular time period. Mining is considered to be capital intensive industry and considerable time is lost for developing the mine before it attains the status of fully developed mine. If the tenure of the mine lease is short, it would encourage the lessee to concentrate more on rapid exploitation of mineral without really undertaking adequate measures for reclamation and rehabilitation of mined out area, posing thereby a serious threat to the environment and health of the workers and public at large.
There is thus, a need to bring uniformity in the period of lease. It is recommended that a minimum period of mine lease should be 5 years, so that eco friendly, scientific and sustainable mining practices are adopted. However, under exceptional circumstances arising due to judicial interventions, short term mining leases/ contracts could be granted to the State Agencies to meet the situation arising there from.
4.4 Cluster of Mine Approach for Small Sized Mines:
Considering the nature of occurrence of minor mineral, economic condition of the lessee and the likely difficulties to be faced by Regulatory Authorities in monitoring the environmental impacts and implementation of necessary mitigation measures, it may be desirable to adopt cluster approach in case of smaller mine leases being operated presently. Further, these clusters need be provided with processing/crusher zones for forward integration and minimizing excessive pressure on road infrastructure. The respective State Governments/Mine Owners Associations may facilitate implementation of Environment Management Plans in such cluster of mines.
4.5 Requirement of Mine Plan for Minor Minerals:
At present, most of the State Governments have not made it mandatory for preparation of mining plan in respect of minor minerals. In some States like Rajasthan, eco friendly mining plans are prepared, which are approved by the State Mining Department. The eco friendly mining plans so prepared, though conceptually welcome, are observed to be deficient and need to be made comprehensive in a manner as is being done for major minerals. Besides, the aspects of reclamation and rehabilitation of mined out areas, progressive mine closure plan, as in vogue for major minerals could be introduced for minor minerals as well.
It is recommended that provision for preparation and approval of mine plan, as in the case of major minerals may appropriately be provided in the Rules governing the mining of minor minerals by the respective State Governments. These should specifically include the provision for reclamation and rehabilitation of mined out area, progressive mine closure plan and post mine land use.
4.6 Creation of Separate Corpus for Reclamation/ Rehabilitation of Mines of Minor Minerals:
Mining of minor minerals, in our country, is by and large unorganized sector and is practiced in haphazard and unscientific manner. At times, the size of the leasehold is also too small to address the issue of reclamation and rehabilitation of mined outs areas. It may, therefore, be desirable that before the concept of mine closure plan for minor minerals is adopted, the existing abandoned mines may be reclaimed and rehabilitated with the involvement of the State Government. There is thus, a need to create a separate corpus, which may be utilized for reclamation and rehabilitation of mined out areas. The respective State Governments may work out a suitable mechanism for creation of such corpus on the `polluter pays' principle. An organizational structure may also need to be created for undertaking and monitoring these activities.
4.7 Depth of Mining:
Mining of minerals, whether major or minor have a direct bearing on the hydrological regime of the area. Besides, affecting the availability of water as a resource, it also affects the quality of water through direct run of going into the surface water bodies and infiltration/leaching into groundwater. Further, groundwater withdrawal, dewatering of water from mine pit and diversion of surface water may cause surface and sub surface hydrologic systems to dry up. An ideal situation would require that quarrying should be restricted to unsaturated zone only above the phreatic water table and should not intersect the groundwater table at any point of time. However, from the point of view of mineral conservation, it may not be desirable to impose blanket ban on mining operation below groundwater table.
It is, therefore, recommended that detailed hydro-geological report should be prepared in respect of any mining operation for minor minerals to be undertaken below groundwater table. Based on the findings of the study so undertaken and the comments/ recommendations of Central Ground Water Authority / State Ground Water Board, a decision regarding restriction on depth of mining for any area should be taken on case to case basis.
4.8 Uniform Minor Mineral Concession Rules:
The economic value of the minor minerals excavated in the country is estimated to contribute to about 9% of the total value of the minerals whereas the non metallic minerals contribute to about 2.8%. Keeping in view the large extent of mining of minor minerals and its significant potential to adversely affect the environment, it is recommended that Model Mineral Concession rules may be framed for minor minerals as well and the minor minerals may be subjected to a simpler regulatory regime, which is, however, similar to major minerals regime.
4.9 River Bed Mining:
4.9.1 Environment damage being caused by unregulated river bed mining of sand, bazari and boulders is attracting considerable attention including in the courts. The following recommendations are therefore made for the river bed mining.
(a)In the case of mining leases for riverbed sand mining, specific river stretches should be identified and mining permits/lease should be granted stretch wise, so that the requisite safeguard measures are duly implemented and are effectively monitored by the respective Regulatory Authorities.
(b)The depth of mining may be restricted to 3m/water level, whichever is less.
(c) For carrying out mining in proximity to any bridge and/or embankment, appropriate safety zone should be worked out on case to case basis, taking into account the structural parameters, locational aspects, flow rate etc. and no mining should be carried out in the safety zone so worked out.
5.0 Conclusion:
Mining of minor minerals, though individually, because of smaller size of mine leases is perceived to have lesser impact as compared to mining of major minerals. However, the activity as a whole is seen to have significant adverse impacts on environment. It is, therefore, necessary that the mining of minor minerals is subjected to simpler but strict regulatory regime and carried out only under an approved framework of mining plan, which should provide for reclamation and rehabilitation of the mined out areas. Further, while granting mining leases by the respective State Governments & location of any eco-fragile zone(s) within the impact zone of the proposed mining area, the linked Rules/Notifications governing such zones and the judicial pronouncements, if any, need be duly noted. The Union Ministry of Mines along with Indian Bureau of Mines and respective State Governments should therefore make necessary provisions in this regard under the Mines and Minerals (Development and Regulation) Act, 1957, Mineral Concession Rules, 1960 and adopt model guidelines to be followed by all States."
(emphasis supplied) Thereafter in paragraph nos. 24 and 28 of the judgment, the Hon'ble Court emphasized the need for framing of proper rules.
"24. We are of the view that all State Governments / Union Territories have to give due weight to the above mentioned recommendations of the MoEF which are made in consultation with all the State Governments and Union Territories. The Model Rules of 2010 issued by the Ministry of Mines are very vital from the environmental, ecological and bio-diversity point of view and therefore the State Governments have to frame proper rules in accordance with the recommendations, under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957."
"28. Central Government also should take steps to bring into force the Minor Minerals Conservation and Development Rules 2010 at the earliest. State Governments and UTs also should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its Report of March 2010 and model guidelines framed by the Ministry of Mines, Govt. of India. Communicate the copy of this order to the MoEF, Secretary, Ministry of Mines, New Delhi, Ministry of Water Resources, Central Government Water Authority, the Chief Secretaries of the respective States and Union Territories, who would circulate this order to the Departments concerned."
Thus, in the teeth of mandate of judgment of Hon'ble the apex court; the statement given before this Court in the case of Vedpal Singh (supra) and the detailed judgment of the Allahabad Bench in the matter of Nar Narayan Mishra(supra) (as to why the obligation to seek environmental clearance not be cast upon the applicants), the State Government has shifted the obligation on to the applicant on the basis of the notification of 2011 issued by the Ministry of Environment and Forest as referred to hereinabove where in the term 'project proponent' who has been held liable to seek the environmental clearance has not been defined. Thus, such Government order neither appears to be logical nor is it in accordance with the observations made by the Allahabad Bench. Therefore, the tender notice dated 08th/11th March 2013 making it obligatory for the applicant to seek Environmental Clearance Certificate is hereby quashed with the direction that the State Government shall frame supplementary Rules in line with the observations made by the Allahabad Bench as referred to hereinabove, within a period of four weeks from the date of receiving a copy of this order.
The, writ petition, thus, succeeds in part in the aforesaid terms.
Order Date :- 17.4.2013 Vijay.