National Green Tribunal
All India Kaimur Peoples Front Through ... vs Ministry Of Environment Forest And ... on 21 October, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 07 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No.231/2022
All India Kaimur Peoples Front Applicant
Versus
Ministry of Environment Forest &
Climate Change & Ors. Respondent(s)
Date of hearing: 21.10.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. Vikas Kumar Singh, Advocate
Respondent: Mr. Pradeep Misra & Mr. Daleep Dhyani, Advocate for UPPCB
Dr. Vidyottma Jha, Advocate for R - 12 & 14
Ms. Samridhi Jain & Mr. Riwaj Rai, Advocates for R - 15
ORDER
1. Grievance in this application is against illegal mining in Villages Bhagwa, Agorikhas, Khewandha and Rediaya, Tehsil Obra, and Villages Korgi, Tehsil Dudhi, District Sonbhadra, UP.
2. According to the applicant, Poclain Machines are used for mining by Respondent Nos. 11 to 20 - Kewal son of Ram Khelawan, Ramnath Tiwari son of Shabhu Nath Tiwari, Shankar son of Khannu, Somaru son of Budhhu, Tapeshi son of Sadan, Shiv Prasad son of Dadai, Soni Devi wife of Rajkumar, Lalmani son of Dangar, Jamuna Prasad son of Viran and Ram Pyare son of Sarju. Requisite District Survey Report (DSR) has 1 not been prepared nor Environmental Clearance (EC) granted as required under the Sand Mining Guidelines, 2020 read with the EIA Notification, 2006 as well as judgment of Hon'ble Supreme Court of India in Deepak Kumar Vs. State of Haryana (2012) 4 SCC 629 and State of Bihar vs. Pawan Kumar & Ors., (2022) 2 SCC 348. It is further stated that the area where mining is undertaken is within the periphery of 1 Km of forest area and also within the periphery of Son River.
3. Vide order dated 30.03.2022, the Tribunal sought a factual and action taken report from a joint Committee comprising of SEIAA, UP, State PCB and District Magistrate, Sonbhadra. It was further directed that if any violations are found, the statutory regulators may take remedial action and inform the affected parties about the proceedings before this Tribunal.
4. Report was filed by the State PCB on 13.06.2022, finding the violations as mentioned in the report. The report is reproduced below:
"1. Shri Kewal S/o Shri Ramkhelawan- at Gata No. 161, 162 Ka, Area-1.1240 hectare Village-Khebhandha, Tehsil-Obra, District-Sonbhadra.
a) As per records available in Mining Department, Sonbhadra, mining permit was issued for mining of sand/morrum for 03 months i.e. (06.01.22- 05.04.2022).
b) At the time of inspection milling was being conducted at the site because the mining validity period was lapsed.
c) No mining tools such as poclain, J.C.B machines etc. were present at the site.
d) As per records available in the Mining Department, it has been reported that during inspection on dated 21.01.2022, a poclain machine was being used for mining of sand/morrum and accordingly Rs. 50,000/-
penalty was imposed against permit holder and accordingly deposited the penalty by the concerned permit holder.
e) As per record, the mines permit was issued in compliance of Rule-52 of Uttar Pradesh Minor Mineral (Concession) Rule-2021.
f) At the time of inspection of the team, soil overburden of average thickness of 1 meter from top soil was found.
2g) Milling pits were left abandoned without reclaiming which may harm living creatures including human, in rainy season.
As per facts mentioned above, Environmental Compensation should be imposed against mine permit holder for using mechanised tools for mining of sand/morrum.
(All documents related mining lease annexed as Annexure no. 1A & 1B)
2. Shri Ramanth Tiwari S/o Sambhu Nath Tiwari- at Gata No. 15 Yian , Area-2.365 hectares, Village-Bhagwa, Tehsil- Obra, District-Sonbhadra.
a) As per records available in Mining Department, Sonbhadra, mining permit was issued for mining of sand/morrum for 03 months i.e. (06.01.2022- 05.04.2022).
b) At the time of inspection mining was not being conducted at the site because the mining validity period was lapsed.
c) No mining tools such as poclain, J.C.B machines etc. were present at the site.
d) As per record the mines permit was issued in compliance of Rule-52 of Uttar Pradesh Minor Mineral (Concession) Rule-2021.
e) Mining pits were left abandoned without reclaiming which may harm living creatures including human, in rainy season.
f) Abandoned mines pits were partially filled with ground water when inspected, which reflects that mining was done bellow the ground water level.
(All documents related mining lease annexed as Annexure no. 2)
3. Shri Shankar S/o Khannu, Gata No. 302 Ka, 303, 304, 305 Ka, 306 Ka & 307, Village-Aghori Khas, Area-0.8900 hectare, Tehsil-Obra, District- Sonbhadra.
a) As per records available in Mining Department, Sonbhadra, mining permit was issued for mining of sand/morrum for 03 months i.e. (08.01.2022- 07.04.2022).
b) At the time of inspection mining was being conducted at the site because the mining validity period was lapsed and mining area was partially reclaimed.
c) No mining tools such as poclain, J.C.B machines etc. were present at the site.
d) As per records, available in the Mining Department, Sonbhadra, it has been reported that illegal mining of sand/morrum has been done by permit holder beyond the sanctioned permit area and accordingly on dated 26.02.2022 & 25.03.2022-Rs.17,12,000/- & Rs. 16,58,000/- respectively penalty was imposed against permit holder and also penalty imposed of Rs.17,12,000/- deposited by the concerned permit holder.
3e) Recovery Certificate has been issued by the District Magistrate dated 28.05.2022 for due payment of Rs.16,58,000/- against concerned permit holder but Rs. 1658000.00 has not been deposited yet.
f) As per record, the mines permit was issued in compliance of Rule-52 of Uttar Pradesh Minor Mineral (Concession) Rule- 2021.
g) Mining pits were left abandoned without reclaiming which may harm living creatures including human, in rainy season As per facts mentioned above, Environmental Compensation should be imposed against mine permit holder for using mechanized tools for mining of sand/morrurn and mining beyond sanctioned permit area.
(All documents related mining lease annexed as Annexure no. 3A, 3B & 3C)
4. Shri Somaru S/o Shri Buddhu , Gata No. 16, 17 Kha & 17 Ga, Village Bhagawa, Area-0.948 hectare, Tehsil-Obra, District-Sonbhadra.
a) As per records available in Mining Department, Sonbhadra, mining permit was issued for mining of sand/morrum for 03 months i.e. (06.01.2022- 05.04.2022).
b) At the time of inspection mining was not being conducted at the site because the mining validity period was lapsed.
c) No mining tools such as poclain, J.C.B machines etc. were present at the site.
d) As per record the mines permit was issued in compliance of Rule-52 of Uttar Pradesh Minor Mineral (Concession) Rule- 2021.
e) Mining pits were left abandoned without reclaiming which may harm living creatures including human, in rainy season.
f) Abandoned mines pits were partially filled with ground water when inspected, which reflects that mining was done bellow the ground water level.
(All documents related mining lease annexed as Annexure no. 4)
5. Shri Tapeshi S/o Shri Sadan, Gata No. 291, 292 & 294, Village-Aghori Khas, Area-1.2 hectare, Tehsil- Obra, District-Sonbhadra.
a) As per records available in Mining Department, Sonbhadra, mining permit was issued for mining of sand/morrum for 03 months i.e. (08.01.2022- 07.04.2022).
b) At the time of inspection mining was being conducted at the site because the mining validity period was lapsed and mining area was partially reclaimed.
c) No mining tools such as poclain, J.C.B machines etc. were present at the site.
4d) As per records available in the Mining Department, Sonbhadra, it has been reported that illegal mining of sand/morrum has been done by permit holder beyond the sanctioned permit area and accordingly on dated 26.02.2022 & 25.03.2022 Rs.3,68,740/- & Rs. 21,44,000/- respectively penalty was imposed against permit holder and also penalty imposed of Rs.3,68,740/- deposited by the concerned permit holder.
e) Recovery Certificate is issued by the District Magistrate dated 28.05.2022 for due payment of Rs. 21,44,000/- against concerned permit holder.
f) As per record, the mines permit was issued in compliance of Rule-52 of Uttar Pradesh Minor Mineral (Concession) Rule-2021.
g) Mining pits were left abandoned without reclaiming which may harm living creatures including human, in rainy season.
As per facts mentioned above, Environmental Compensation should be imposed against mine permit holder for using mechanised tools for mining of sand/morrum and mining beyond the sanctioned permit area.
(All documents related mining lease annexed as Annexure no. 5A, 5B & 5C)
6. Shri Shiv Prasad S/o Shri Dadai, Gata No. 470, 471, 471/1, 472/2, 473, 474 & 475, Village-Redhiya, Area-1.8900 hectare, Tehsil-Obra, District-Sonbhadra.
a) As per records available in Mining Department, Sonbhadra, mining permit was issued for mining of sand/morrum for 03 months i.e. (08.01.2022- 07.04.2022).
b) At the time of inspection mining was being conducted at the site because the mining validity period was lapsed.
c) No mining tools such as poclain, J.C.B machines etc. were present at the site.
d) As per records available in the Mining Department, Sonbhadra, it has been reported that during inspection on dated 19.01.2022, 12 Nos. of poclain machine was being used for mining of sand/morrum and accordingly Rs.6,00,000/- penalty was imposed against the mine permit holder and also penalty Rs.6,00,000/- imposed deposited by the concerned permit holder.
e) As per records available in the Mining Department, Sonbhadra, it has been reported that illegal mining of sand/morrum has been done by permit holder beyond the sanctioned area and accordingly on dated 31.01.2022, Rs.14,15,000/- penalty was imposed against permit holder and according it Rs.14,15,000/- it was deposited by the permit holder.
f) As per record, the mining permit was issued in compliance of Rule-52 of Uttar Pradesh Minor Mineral (Concession) Rule-2021.
g) At the time of inspection of the team, soil overburden of average thickness of 1.5 meter from top soil was found.
5h) Mining pits were left abandoned without reclaiming which may harm living creatures including human, in rainy season.
As per facts mentioned above, Environmental Compensation should be imposed against mine permit holder for using mechanised tools for mining of sand/morrum.
(All documents related mining lease annexed as Annexure no. 6A, 6B & 6C)
7. Shri Soni Devi W/o Shri Raj Kumar, Gata No. 313, Village-Aghori Khas, Area-1.1800 hectare, Tehsil - Obra, District-Sonbhadra.
a) As per records available in Mining Department, Sonbhadra, mining permit was issued for mining of sand/morrum for 03 months i.e. (06.01.2022- 05.04.2022).
b) At the time of inspection mining was being conducted at the site because the mining validity period was lapsed and mining area was partially reclaimed.
c) No mining tools such as poclain, J.C.B machines etc. were present at the site.
d) As per records available in the Mining Department, it has been reported that during inspection on dated 20.01.2022, 04 Nos. of poclain machine was being used for mining of sand/morrum and accordingly Rs.2,00,000/- penalty was imposed against the mine permit holder and also penalty Rs.2,00,000/- imposed, deposited by the concerned permit holder.
e) As per records available in the Mining Department, Sonbhadra, it has been reported that illegal mining of sand/morrum has been done by permit holder beyond the sanctioned permit area and accordingly on dated 22.02.2022 Rs.7,56,000/- penalty was imposed against permit holder and also penalty Rs.7,56,000/- imposed deposited by the concerned permit holder.
f) As per record the mines permit was issued in compliance of Rule-52 of Uttar Pradesh Minor Mineral (Concession) Rule-2021.
g) Mining pits were left abandoned without reclaiming which may harm living creatures including human, in rainy season.
h) At the time of inspection of the team, soil overburden of average thickness of 1.5 meter from top soil was found.
i) Abandoned mines pits were partially filled with ground water when inspected.
As per facts mentioned above, Environmental Compensation should be imposed against mine permit holder for using mechanised tools for mining of sand/morrum and mining beyond sanctioned mining area.
(All documents related mining lease annexed as Annexure no. 7A, 7B & 7C) 6
8. Shri Lal Mani S/o Shri Dangar, Gata No. 370, 371, 374, 375, 376, 377 & 378, Village-Agori Khas, Area- 1.479 hectare, Tehsil-Obra, District-Sonbhadra.
a) As per records available in Mining Department, Sonbhadra, mining permit was issued for mining of sand/morrum for 03 months i.e. (06.01.2022- 05.04.2022).
b) At the time of inspection mining was being conducted at the site because the mining validity period was lapsed and mining area was partially reclaimed.
c) No mining tools such as poclain, J.C.B machines etc. were present at the site.
d) As per records available in the Mining Department, Sonbhadra, it has been reported that during inspection on dated 20.01.2022, 04 Nos. of poclain machine was being used for mining of sand/morrum and accordingly Rs.2,00,0001- penalty was imposed against the mine permit holder and also penalty Rs.2,00,000/- imposed deposited by the concerned permit holder.
e) As per records available in the Mining Department, Sonbhadra, it has been reported that illegal mining of sandlmorrum has been done by permit holder beyond the sanctioned permit area and accordingly on dated 26.02.2022 & 21.03.2022 Rs.14,96,000/- & Rs.9,93,800/- respectively penalty was imposed against permit holder and also penalty Rs.14,96,00/- and Rs.9,93,800/-imposed, deposited by the concerned permit holder.
f) As per record the mines permit was issued in compliance of Rule-52 of Uttar Pradesh Minor Mineral (Concession) Rule-2021.
g) Mining pits were left abandoned without reclaiming which may harm living creatures including human, in rainy season.
As per facts mentioned above, Environmental Compensation should be imposed against mine permit holder for using mechanised tools for mining of sand/morrum and mining beyond sanctioned mining permit area.
(All documents related mining lease annexed as Annexure no. 8A, 8B, 8C & 8D)
9. Shri Ram Pyare S/o Shri Sarju, Village-Khebandha, Gata No. 164, 169 & 170, Area-0.7720 hectare, Tehsil- Obra, District-Sonbhadra.
a) As per records available in Mining Department, Sonbhadra, mining permit was issued for mining of sand/morrum for 03 months i.e. (08.01.2022- 07.04.2022).
b) At the time of inspection mining was being conducted at the site because the mining validity period was lapsed.
c) No mining tools such as poclain, J.C.B machines etc. were present at the site.
7d) As per record, the mines permit was issued in compliance of Rule-52 of Uttar Pradesh Minor Mineral (Concession) Rule-2021.
e) Mining pits were left abandoned without reclaiming which may harm living creatures including human, in rainy season.
(All documents related mining lease annexed as Annexure no. 9) Recommendatio ns:
Considering the facts mentioned above, the committee recommends the following against the defaulting mines lease holders:-
I. Environmental compensation for using mechanised tools for mining of minerals and excess mining as well mining beyond the permitted area, having soil overburden as per scale of compensation for violations on polluter pays principal for responded no. 11 Shri Kewal S/o Shri Ram Khelawan, responded no. 13 Shri Shankar S/o Shri Khannu, responded no. 15 Shri Tapeshi S/o Shri Sadan, responded no. 16 Shri Shiv Prasad S/o Shri Dadai, responded no. 17 Shrimati Soni Devi W/o Shri Raj Kumar, responded no. 18 Shri Lalmani S/o Shri Dangar of the writ petition.
II. Mining Department can be asked to direct the mines lease holder to reclaim the mines pit by using over burden dumped near the lease area."
5. Vide order dated 13.07.2022, the Tribunal considered the matter and found that report of the Committee was incomplete in terms of status of the District Survey Report, EIA, EMP, replenishment study and grant of EC in favour of the PPs. The report also did not mention the remedial action in respect of the violations and whether the PPs were served notice in terms of earlier directions of this Tribunal to enable them to file their response, if any.
6. Accordingly, further report has been filed by the Committee on 12.09.2022 and response has been filed by one of the PPs - respondent No.15. The report of the Committee is that compensation has been assessed for illegal mining and recommendations made to competent authority to issue show-cause notice against the defaulting PPs as follows:-8
"As per calculation mentioned above recommendation to issue Show Cause notices was sent to the competent authority of the State Board UP vide refe. No. G002173(A)/O.A. No. 231/2022 dated 06.09.2022, which has been annexed as Annexure No. 2.
The competent authority of the Board has issued Show cause notice against the following defaulting project proponents as described in the table below:
S. Project Proponents Letter No. of the Amount (Rs.) No. Board 1 M/s. Shri Shankar S/o H80921/C-2/NGT Rs. 67,65,000.00 Khannu, Gata No. 302, Ka Samanya-57/22 303, 304, 305 Ka. 306 Ka & dated 09.09.2022 307, Village Aghori Khas, Area-08900 hectare, Tehsil-
Obra, District Sonbhadra 2 Shri Tapesh S/o Shri Sadan, H80920/C-2/NGT Rs. 8,12,375.00 Gata No. 291, 292 & 294, Samanya-57/22 Village-Aghori Khas, Area 1.2 dated 09.09.2022 hectare, Tehsil-Obra 3 Shri Shiv Prasad S/o Shri H80918/C-2/NGT Rs. 32,01,600.00 Dadar, Gata No. 470, 471/1, Samanya-57/22 472/2, 473, 474 & 475, dated 09.09.2022 Village Redhiya, Area-1.8900 hectare, Tehsil-Obra, District Sonbhadra 4 Smt Soni Devi W/o Shri Raj H80917/C-2/NGT Rs. 17,22,000.00 Kumar, Gata No. 313, Samanya-57/22 Village-Aghori Khas, Area- dated 09.09.2022 1.1800 hectare, Tehsil-Obra, District Sonbhadra 5 Shri Lal Mani S/o Shri H80919/C-2/NGT Rs. 47,60,100.00 "
Dangar, Gata No. 370, 371, Samanya-57/22 374, 376, 377 & 378, Village- dated 09.09.2022 Aghori Khas, Area 1.479 hectare, Tehsil-Obra, District Sonbhadra
7. It is further stated that the compensation has been assessed as per methodology evolved by the expert Committee and approved by this 9 Tribunal vide order dated 29.01.2020 in O.A No. 360 of 2015, National Green Tribunal Bar Association v. Virender Singh.
8. We have considered the matter further and heard learned Counsel for the appearing parties.
9. We find that even the present report does not make any specific mention of preparation of DSR, EIA, EMP or undertaking of replenishment study for grant of EC, as required in terms of earlier order. On being asked, learned counsel for the PP - Respondent No.15 fairly stated that no such processes have been undertaken as the same are not required when mining is in pursuance of short term permits as per Rule 52 of the Uttar Pradesh Minor Mineral (Concession) Rules, 2021. Learned counsel for the PP has relied upon judgement of Bombay High Court, Nagpur Bench dated 14.10.2022 in W.P No. 2153 of 2022, Orange City Stone Crusher Owners Association, Napur v. State of Maharashtra & Ors. and other connected matters, holding that short term permits for mining did not require any environmental clearance as per rule applicable in Maharashtra.
10. This contention is opposed by learned Counsel for the applicant. It is submitted that UP Rule is different from Maharashtra and thus the judgement relied upon is not applicable. Under the said rules, there is no difference in mining being under the permit or lease. Every mining adversely affects the environment and no distinction is made in respect of period of mining by the Hon'ble Supreme Court in Deepak Kumar (supra). This is also the law laid down in Goa Foundation v. Union of India & Ors. (2014) 6 SCC 590.
11. We have given due consideration to rival submission on this aspect.
We may reproduce the Rule applicable to UP and the one applicable to 10 Maharashtra which was subject matter of consideration in the judgment of the Bombay High Court:
UP Rule "52(1) Notwithstanding anything contained in rule 74, the bhumidhar of agricultural land may apply for grant of mining permit for removal of sand or morrum or Bajri or Boulder or any of these in mixed state deposited on his land in Form MM-8, in triplicate to the District Officer, accompanied by a non refundable fee of Rs. 2,000/-(Rupees two thousand) Only, and two copies of a cadastral Survey map on which the area, applied for, is clearly marked. The District Officer shall cause an enquiry, if deemed necessary, through Revenue and Geology & Mining Departments regarding the title of the land and availability of minor mineral on the applied area.
(2) In the light of the report submitted by the concerned Officer, the District Officer, may grant the mining permit for a period not exceeding three months in favour of the bhumidhar, after realizing double the amount of royalty in advance.
(3) Except above mentioned provisions, the other provisions of these rules will apply mutatis mutandis to the mining permit granted under this rule."
Maharashtra Rule "Rule 59: Grant of Short term permits for minor minerals:
(1) Not-withstanding anything contained in the foregoing rules, the Competent Officer, on an application made to him may grant a quarry permit to any person to extract or remove from any specified land within the limits of his jurisdiction any minor mineral not exceeding in quantity as mentioned under any one permit on payment of advance royalities * [at the rate specified in Schedule I] and on such rents and fees accessable for such extraction;
Provided that, no permits shall be granted in case of any specified minor mineral without prior approval of the Director.
(2) The Competent Officer shall grant permit for specific time and specific volume (3) The Competent Officer may refuse to grant such permit for reasons to be recorded in writing.
Substituted for the words "calculated at the rate specified by the Government, from time to time, by Notification No.Gaukhani.10/1012/C.R.603/kh, dated 11.05.2015"
1112. We may now quote the observations in the judgment of the Bombay High Court which shows that consideration therein is language of the rule validity of which was not challenged:
"24. It can be seen from the above referred Rules that there is no stipulation made therein regarding prior submission of environmental clearance certificate issued by the competent authority. They also show that the permit granted for extraction and removal of minor minerals is of short term and is restricted to the specified land with ceiling put on the quantity of minerals to be extracted and removed and is also confined to specific time and volume. It can be further seen that unlike Rule 11 (5), Rule 61, which is about the manner in which the application for quarry permit is to be made and the documents to be submitted along with the application, does not specify the requirement of submission of environmental clearance certificate along with application made in terms of Rule 61.
25. Thus, the discussion so far made would show that the rule making authority has made a distinction between "quarry lease'' and "quarry permit" and the distinction shows that while "quarry lease" is for a longer period time, with wider scope of operations, the "quarry permit" is for a very short and temporary period of time, is confined to limited operations and is intended to achieve the object of urgent and immediate need of minor minerals for various developmental works by striking a balance between the need of protection of environment and the need for undertaking developmental works which are in larger public interest. For grant of "quarry permit" under Rule 59, there is another distinguishing feature from that of "quarry lease" granted under Chapter II of the Rules, 2013, and it is that there is no requirement of prior submission of environmental clearance certificate. This distinguishing feature of "quarry permit" in particular, we must say, has rational and proximate relation with the purpose for which a "quarry permit" is granted, the purpose of obtaining an already mined mineral and serves the object of meeting an urgent and immediate need of the minor mineral for various developmental works. When an already mined mineral is to be extracted and removed from a limited area and in specific volume and for specific time, the rationale behind no requirement of prior submission of environmental clearance certificate would be one of sustainable development where environment and development both go hand in hand. This conclusion answers the main question involved here and, we do answer accordingly.
26. Coming back to the Rules, 2013, we may add here that the Rules, 2013 which have been framed in compliance with the directions of the Apex Court in the case of Deepak Kumar (supra) have not been questioned for their vires and validity so far. That means, the Rules, 2013 govern the subject of exploitation, extraction and removal of minor minerals by providing a detailed regulatory mechanism. These Rules being in the nature of subordinate legislation have the force of law and would prevail upon any executive instruction, which is contrary to any of the provisions made in the Rules. It also means that by an executive diktat, the State 12 Government or any of its officers cannot make any attempt to supersede these Rules. The only permissible act that can be done by the State Government is that of filling up of the gaps left in the subordinate Legislation by issuing necessary executive instructions. A coordinate bench of this Court in the case of Rashtriya Shikshan Sangh (supra) has held that the power of the State Government to issue executive directions is confined to filling up of the gaps or covering the area which otherwise has not been covered by existing statutory Rules and such instructions or orders must be subservient to the statutory Rules. The view so expressed follows the law settled in this regard by the Supreme Court in the cases of R.N. Nagarajan Vs. State of Mysore, AIR 1966 SC 1942 and Ram Javya Kapoor Vs. State of Punjab, AIR 1955 SC 549. The relevant observations made in the case of Rashtriya Shikshan Sangh (supra), as they appear in paragraph 14, are reproduced thus:
"14. The power of the State Government to issue executive directions is confined to filling up the gaps or covering the area which otherwise has not been covered by the existing statutory Rules, and such instructions or orders must be subservient to the statutory Rules. The executive power of the State under Article 162 of the Constitution of India is co- extensive with the legislative power, and when the field of law is occupied by a Legislative Act, the exercise of executive power is not available. The Government cannot supersede statutory Rules by administrative instructions. Still, if the Rules are silent on any particular point, the Government can fill the gaps by framing Rules and issuing instructions not inconsistent with the already - framed Rules. In R.N.Nagarajan v. State of Mysore, AIR 1966 SC 1942 the Supreme Court has observed that it is necessary to mention that if there is a statutory rule or an Act on the matter, the executive must abide by that Act or Rule and it cannot in exercise of the executive power under Article 162 the Constitution ignore or act contrary to that Rule. A Constitution Bench of the Supreme Court in Ram Javya Kapoor v. State of Punjab, AIR 1955 SC 549, held :
"The State in exercise of its executive powers is charged with the responsibility and duty of carrying on the general administration of the State so long as the State Government does not go against the provisions of the Constitution or any law the width and amplitude of its executive powers cannot be circumscribed. If there is no enactment covering a particular aspect certainly the Government can carry on the administration by issuing administrative directions or instructions until the Legislature makes a law in that behalf".
27. In the cases before us, there was a communication issued by the State of Maharashtra on 12.12.2013 which stated that in case of grant of short term quarry permits under Chapter IV of Rules, 2013, there would be no need for prior submission of environmental clearance certificate. This communication was not inconsistent with or contrary to Rules 59 and 61 of the Rules, 2013, rather, it was clarificatory in nature. However, this is not so in case of communication dated 24th March, 2022, which is impugned in all 13 these petitions. By this communication issued by respondent no.6, it is directed that no quarry permit referred to in the communication dated 12.12.2013 be issued without prior submission of environmental clearance certificate in view of the directions given by the National Green Tribunal in the case of Shri Rajiv Babasaheb Waman and others Vs. Ministry of Environment, Forest and Climate Change and others in OA 68/2020. The direction so given afresh by an executive instruction contained in this communication, in our considered view, cannot and would not prevail over the Rules 59 and 61 of the Rules, 2013, for the reasons stated in the ensuing paragraphs.
28. We have already seen that there is no requirement of Rules 59 and 61 that environmental clearance certificate be submitted along with the application made for grant of a quarry permit and, therefore, the direction given through an executive order that for grant of a quarry permit, environmental clearance certificate be submitted, clearly runs contrary to the provisions made in Rules 59 and 61. Further, we have already seen that Rules, 2013 govern the subject of "quarry leases" and "quarry permits" prescribing different requirements for their grants. When these provisions of Rules, 2013 govern the field, there can be no executive clarification or communication issued, which is inconsistent with or contrary to these Rules, as noted in the case of Rashtriya Shikshan Sangh (supra). Then, in the case of Shri Rajiv Babasaheb Waman (supra), it appears, the application of the Rules, 2013 to the subject of "quarry leases" and "quarry permits" was not brought to the notice of the National Green Tribunal and what was brought to its notice was only the office communication dated 12.12.2013. This communication being in the nature of executive instruction and not having any force of law was found foul of the directions contained in the case of Deepak Kumar (supra), by the NGT, and not without any reasons. The NGT was not aware of Rules, 2013 having been framed and governing the field. Had the fact of framing of Rules, 2013 been brought to the notice of the NGT, perhaps the things would have been different. Anyway, the judgment of the NGT has now been stayed in relation to appellants therein by the Supreme Court. But, the fact remains that what was not considered by National Green Tribunal was that there was in place a new regulatory mechanism governing the subjects of quarry leases and quarry permits, which did not require, for, granting a quarry permit, any environmental clearance certificate though it required one for granting a quarry lease under the Rules, 2013. The office communication dated 12.12.2013, we must say, only clarifies what is already prescribed in Rules 59 and 61 of the Rules, 2013 governing the subject of grant of quarry permits and, therefore, it continues to hold the field. These facts were not noticed by the National Green Tribunal and that was the reason why following observations came in paragraph 8 of its judgment in the case of Shri Rajiv Babasaheb Waman (supra) which read thus:
"8..........It is duty of the State of Maharashtra to issue clarification in view of the fact that its circular is rusting in defiance of judgment of the Hon'ble Supreme Court to the detriment of environment and rule of law. The Chief Secretary, Maharashtra may ensure further remedial action in this regard"
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29. It is obvious that the direction so given by the National Green Tribunal was only in the context of the office communication dated 12.12.2013 and not upon consideration of the requirements of relevant Rules i.e. Rules 59 and 61 governing the subject of quarry permits. This direction, therefore, would not come in the way of authorities considering the issue of grant of quarry permits in terms of Rule 59 read with Rule 61 of the Rules, 2013. Even otherwise, if the direction given by the National Green Tribunal was to be implemented by the Chief Secretary, he ought to have considered the real impact of the relevant words which required him to ensure "further remedial action in the matter". It would then mean that doing something which was in the nature of suitably amending the Rules 59 and 61 of Rules, 2013 was required, if thought fit, which was not done.
30. The above discussion would lead us to find that no executive instruction which is contrary to the requirements of Rules 59 and 61 of Rules, 2013 could have been issued by the State Government, as it has done vide its impugned communication dated 24th March, 2022, in the name of issuing of a clarification. If any clarification was to be issued, it must have been by following the well settled principles of law stated in the judgment of the coordinate Division Bench of this Court in the case of Rashtriya Shikshan Sangh (supra) and by suitably amending Rules 59 and 61 of Rules, 2013, if thought fit. The direction issued by National Green Tribunal appears to have been misconstrued by the State Government and the result is of issuance of the impugned communication in the name of clarification which is contrary to the Rules of 59 and 61 of Rules, 2013 and which violates the settled principles of law. Such a communication, therefore, cannot stand the scrutiny of law and is required to be quashed and set aside as being illegal.
31. Shri Bhandarkar, learned counsel has referred to the Notification dated 20th March, 2020 in order to support his contention that the short term permits for extraction of minor minerals have been exempted from the requirement of submission of environmental clearance certificate. He has placed reliance upon Item VIII in Appendix IV to the Notification dated 20th March, 2020. Item VIII relates to traditional occupational work of sand by Vanjara and Oads in Gujarat. It is, therefore, clear that this notification does not support the argument that even in the notification dated 20th March, 2020 issued by the Ministry of Environment of Forest and Climate Change, there is an exemption granted to a quarry permit from the requirement of submission of prior environmental clearance. Be that as it may, we have already found that the impugned communication dated 24th March, 2022 is bad in law, for the reasons stated earlier."
13. It is clear from the above that the judgement of the Bombay High Court is in respect of different set of rule and validity of such rules was not before the High Court. Thus, the same cannot apply to a situation 15 governed by different set of Rule which makes all requirements, which are applicable to mining leases, applicable to mining permits also.
14. We are thus unable to uphold the stand of the PP that no environmental clearance is required and uphold the stand of the joint Committee that accountability needs to be fixed for illegal mining.
15. The statutory authorities may proceed further and finalize the pending matter within three months in accordance with law.
The Application is disposed of.
A copy of this order be forwarded to the UPPCB, SEIAA, U.P and District Magistrate, Sonbhadra, U.P by email for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM October 21, 2022 Original Application No.231/2022 AB 16