Allahabad High Court
Pranav Kumar vs State Of U.P. And 4 Others on 2 August, 2013
Bench: Ashok Bhushan, Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 37 Case :- WRIT - C No. - 31529 of 2013 Petitioner :- Pranav Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Vivek Pandey,K.K. Roy Counsel for Respondent :- C.S.C.,Madan Lal Srivastava Hon'ble Ashok Bhushan,J.
Hon'ble Manoj Kumar Gupta,J.
(PER HON'BLE ASHOK BHUSHAN, J.) This writ petition raises an important issue i.e. as to whether a mining lease holder, who was granted mining lease of an area less than 5 hectares prior to the judgment of the apex Court in Deepak Kumar Etc. vs State Of Haryana & Ors.Etc. (2012) 4 SCC 629 (dated 27.2.2012) by which restriction of getting an environmental clearance has been imposed on lease for an area less than 5 hectares, is entitled to carry on his mining operation without obtaining any environmental clearance as required under the provisions of the Environment (Protection ) Act, 1986.
Brief facts giving rise to the writ petition are; a mining lease in accordance with the provisions of the U. P. Minor Minerals (Concession) Rules, 1963 for an area of 9 acres (3.64 hectares) of plot no. 3 Gha, village Manikpur was executed in favour of the respondent no. 5 for the period 23.7.2012 to 22.2.2022 on 23.2.2012 for sand stone (Imarati Patthar). The Apex Court delivered judgment in Deepak Kumar's case (supra) on 27.7.2012 directing that lease of minor minerals including renewal for an area of less than 5 hectares be granted only after getting the environmental clearance. The Government of India also issued an order on 18.5.2012 directing that in order to ensure compliance of the apex Court order in Deepak Kumar's case, it has now been decided that all mining projects of minor minerals irrespective of the size of the lease would henceforth require prior environment clearance. Mining projects with lease area up to less than 50 hectares would be treated as category 'B' as defined in the EIA Notification 2006.
Complaints were filed by the villagers of village Manikpur including the petitioner making complaints that carrying out mining operations by the respondent no. 5 of sand stone in plot No. 3 Kha is causing irreparable loss to the environment. The State Government has issued a Government order dated 10.9.2012 referring to the notification dated 14.9.2006 providing that mining operations which could not take place on account of non receipt of environmental clearance may obtain environmental clearance in accordance with the notification dated 14.9.2006 within two months. On 13.3.2013 Sub Divisional Magistrate Lalganj, Mirzapur referring to the application submitted by the petitioner in which complaint was made against the mining operation of the respondent no. 5 directed for stoppage of mining operations. The order further mentions a joint survey dated 13.3.2013 by which it was revealed that mining operation is increasing pollution. The respondent no. 5 filed a writ petition No. 18359 of 2013 challenging the order passed by the Sub Divisional Magistrate. This Court by interim order dated 11.4.2013 stayed the order of the Sub Divisional Magistrate. The District Collector was directed to review the order passed by the Sub Divisional Magistrate and was directed to pass an appropriate order afresh. The District Magistrate in pursuance of the order of this Court passed a detailed order dated 13.5.2013 taking into consideration the inspection and survey reports . He recorded his five conclusions on the basis of the report. One of the conclusions recorded by the District Magistrate was that for mining operation environmental clearance has not been obtained. By order dated 13.5.2013, the representation submitted by the respondent no. 5 was disposed of. The petitioner aggrieved by the order passed by the District Magistrate dated 13.5.2013 has come up in this writ petition. In this writ petition following prayers have been made by the petitioner :
"i) issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 13.05.2013 and 23.02.2012 passed by the District Magistrate, Mirzapur (Annexure No. 8&2 to this writ petition )
ii)issue a writ, order or direction in the nature of Mandamus commanding/directing the respondent -District Magistrate, Mirzapur to pass an order for immediate stopping of the mining of work done by the respondent no. 5 in Village-Manikpur, Tehsil-Lslganj, District Mirzapur in pursuance of the lease granted to her."
We have heard Sri K.K. Rai, learned Counsel for the petitioner, Sri Shashi Nandan, learned Senior Advocate assisted by Sri Madan Lal Srivastava, learned counsel appearing for the respondent no. 5 as well as learned Standing Counsel. A short counter affidavit has also been filed by the respondent no. 5. With the consent of learned counsel for the parties, the writ petition is being decided finally.
Learned Counsel for the petitioner in support of the writ petition submitted that in view of the judgment of the apex Court dated 27.2.2012 in Deepak Kumar's case (supra), no mining operation can be allowed to continue without obtaining environmental clearance as required by notification dated 14.9.2006 issued under environment (Protection) Act, 1986 even for an area of less than 5 hectares. He submits that the respondent no. 5 is continuing with her mining operation without obtaining environmental clearance certificate even after the judgment of the apex Court dated 27.2.2012. It is submitted that the District Magistrate in his order dated 13.5.2013 has categorically held that the respondent no. 5 has not obtained any environmental clearance but inspite of recording that finding, has not restrained the respondent no. 5 from carrying on her mining operation. It is submitted that in view of the judgment of the apex Court and the notification dated 14.9.2006, no mining operation can be allowed to be carried on even for an area of less than 5 hectares without obtaining prior environmental clearance. It is submitted that requirement of environmental clearance is a mandatory requirement to protect the environmental degradation and ecology. It is submitted that the petitioner is the resident of village where the mining operations are being carried out by the respondent no. 5 and by use of explosive by respondent no. 5, pollution is increasing and environment is being affected. Learned Counsel for the petitioner has placed reliance on the judgment of the apex Court in Deepak Kumar's case as well as judgment of this Court in Mohammad Kausar Jahan Vs. Union of India 2001 (5) ADJ 125.
Sri Shashi Nandan, learned Senior Advocate appearing for the respondent no. 5 refuting the submissions of learned Counsel for the petitioner submits that no environmental clearance is required to be obtained by the respondent no. 5 since the lease in favour of respondent no. 5 was executed on 23.2.2012 i.e. prior to the judgment of the apex Court in Deepak Kumar's case. He submits that the lease being for an area less than 5 hectares, the notification dated 14.9.2006 issued under the 1986 Act is not applicable. He further submits that the judgment of Kausar Jahan (supra) is not applicable since Kausar Jahan's judgment dealt with the lease which was covered by notification dated 14.9.2006 and the lease of respondent no. 5 being not covered by notification dated 14.9.2006, the said restriction has no application. It has been further submitted that the petitioner has no locus to file the present writ petition. It is submitted that one Satyendra Kumar Misra has already filed a Public Interest Litigation No. 57988 of 2012 against the respondent no. 5 on the same facts and circumstances in which this Court has issued notices to the respondent no. 5 and a counter affidavit has also been filed by the Mines Officer. It is submitted that public interest litigation having been entertained, this writ petition be thrown out. It is stated that petitioner is inimical to respondent no. 5 hence, has filed this writ petition. The petitioner having no locus to file the writ petition, the writ petition be dismissed on this ground alone.
From the facts brought on record and submissions raised by learned counsel for the parties, following are the issues which arise for consideration in this writ petition.
(1)Whether the writ petition is liable to be dismissed on the ground that the petitioner has no locus to file this writ petition ?
(2)Whether the respondent no. 5 was obliged to obtain environmental clearance for carrying on her mining operation in accordance with the provisions of 1986 Act and the notification dated 14.9.2006, issued therein and the judgment of the apex Court in Deepak Kumar's case?
(3)Whether for mining lease granted prior to the judgment of the apex Court in Deepak Kumar's case, there is no requirement of obtaining environmental clearance and such mining lease holders are entitled to carry on their mining operation without obtaining any environmental clearance?
The first issue to be considered is as to whether the petitioner has locus to file this writ petition. The petitioner's case in the writ petition is that around 172 villagers of village Manikpur has submitted a memorandum to the authorities to stop the mining operation of respondent no. 5. The petitioner submitted further complaint on 13.3.2013 before the Sub Divisional Magistrate for stopping the mining operation of the respondent no. 5. The Sub Divisional Magistrate being satisfied on the complaint of the petitioner directed for inquiry . It was found that the blasts carried out for mining purpose is creating serious pollution. The averments to the aforesaid effect have been mentioned in paragraphs 15 to 17, which are quoted below:
15.That since the respondent no. 5 was violating all the norms of the lease deed, the petitioner made a complaint on 13.03.2013 before the Sub Divisional Magistrate, Lalganj, Mirzapur for stopping the mining operation and take suitable steps for its cancellation through proper channel.
16.That on being satisfied on the complain of the petitioner dated 13.03.2013, an order was passed by the Sub Divisional Magistrate, Lalganj directing the surveyor/revenue team to enquiry into the matter and after the enquiry it was found that the blast done for the mining purpose is creating serious pollution and the vibration created by this is damaging the house of the nearby village.
17.That on being satisfied with the report, the Sub Divisional Magistrate passed an order on 13.03.2013 directing the respondent no. 5 to stop the use of the explosive and transportation of the minerals in the lease area. The Sub Divisional Magistrate, Lalganj forwarded the order to the Incharge, Mining Officer, Mirzapur for information. A photocopy of the order dated 13.03.2013 passed by the Sub Divisional Magistrate, Lalganj, Mirzapur is being filed herewith and marked as Annexure No. 6 to this writ petition."
As noted above, the respondent no. 5 has filed the writ petition No. 18359 of 2013 challenging the order dated 13.3.2013 in which writ petition, the order dated 13.3.2013 was stayed and the District Magistrate was directed to review the order and take decision afresh. The District Magistrate has passed an order on 13.5.2013 where it was found that no environmental clearance has been obtained by the respondent no. 5. The petitioner's case in support of his claim of having locus standi is that he is resident of village where the mining operation is going on affecting the environment and further it is on the petitioner's complaint that mining operation of respondent no. 5 was stopped and subsequently, the order has been passed by the District Magistrate on 13.5.2013. The apex Court in M.C. Mehta Vs. Union of India (2004) 12 SCC 118 had noted that right to life is a fundamental right under Article 21 of the Constitution of India and it includes the right of pollution free water and air for full enjoyment of life. Noticing Article 51A of the Constitution of India it was further observed that it is the duty of the every citizen of India to protect and improve the natural environment. It was noted that mining operation is hazardous in, nature, it impairs ecology and people's right of natural resources. Following observations were made in paragraph 45,46 and 47 which are quoted below:
"45. The-natural sources of air, water and soil cannot be utilized if the utilization results in irreversible damage to environments. There has been accelerated degradation of environment primarily on account of lack of effective enforcement of environmental laws and non-compliance of the statutory norms. This Court has repeatedly said that the right to live is a fundamental right under Article 21 of the Constitution and it includes the right to of enjoyment of pollution-free water and air for full enjoyment of life. (See Subhash Kumar v. State of Bihar MANU/SC/0106/1991 : [1991]1SCR5 ).
46. Further, by 42nd Constitutional Amendment. Article 48A was inserted in the Constitution in Part IV stipulating that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Article 51A, inter alia, provides that it shall be the duty of every citizen of India to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creatures. Article 47 which provides that it shall be the duty of the State to raise the level of nutrition and the standard of living and to improve pubic health is also relevant in this connection. The most vital necessities, namely, air, water and soil, having regard to right of life under Article 21 cannot be permitted to be misused and polluted so as to reduce the quality of life of others. Having regard to the right of the community at large it is permissible to encourage the participation of Amicus Curiae, the appointment of experts and the appointments of monitory committees. The approach of the Court has to be liberal towards ensuring social justice and protection of human rights. In M.C. Mehta v. Union of India MANU/SC/0396/1987 : [1988]1SCR279 , this Court held that life, public health and ecology has priority over unemployment and loss of revenue. The definition of 'sustainable development' which Brandt land gave more than 3 decades back still holds good. The phrase covers the development that meets the needs of the present without compromising the ability of the future generation to meet their own needs. In Narmada Bachao Andolan v. Union of India and Ors.: (2002)10SCC408 this Court observed that sustainable development means the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation, in these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. (See Chairman Barton : The Status of the Precautionary Principle in Australia : (Vol. 22) (1998) (Harv. Envtt. Law Review, p. 509 at p.549-A) as in AP Pollution Control Board v. Prof. M.V. Nayuder (Retd) and Ors. : [1999]1SCR235 ).
47.The mining operation is hazardous in, nature, it impairs ecology and people's right of natural resources. The entire process of setting up and functioning of mining operation require utmost good faith and honesty on the part of the intending entrepreneur. For carrying on any mining activity close to township which has tendency to degrade environment and are likely to effect air water and soil and impair the qualify of life or inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. The fullest disclosures including the potential for increased burdens on the environment consequent upon possible increase in the quantum and degree of pollution, has to be made at the outset so that public and all those concerned including authorities may decide whether the permission can at all be granted for carrying on mining activity. The regulatory authorities have to act with utmost care in ensuring compliance of safeguards, norms and standards to be observed by such entrepreneurs. When questioned, the regulatory authorities have to show that the said authorities acted in the manner enjoined upon them. Where the regulatory authorities, either connive or act negligently by not taking prompt action to prevent, avoid or control the damage to environment, natural resources and peoples' life, health and property, the principles of accountability for restoration and compensation have to be applied."
It cannot be said that the petitioner who is resident of same village where mining operations are going on, affecting the pollution and environment, has no right to raise any voice. As noted above, the petitioner has made a complaint and on his complaint, the mining operation of respondent no. 5 was stopped. The order stopping the mining operation was challenged by the respondent no. 5 in which writ petition there was an interim order with a direction to the District Magistrate to review the matter and pass a fresh order. The District Magistrate although passed an order on 13.5.2013 finding that there are no environmental clearance but did not pass any order for stopping the mining.
Learned Counsel for the respondent no. 5 has relied on two judgements of this Court in support of his submission that the petitioner has no locus. Reliance has been placed on 2007 (6) ADJ 474 Awadhesh Kumar Vs. State of U.P. and others as well as on Division Bench judgment 2009 (2) ADJ 409 Tejender Malik Vs. State of U.P. In Awadesh Kumar's case (supra), the petitioner has filed a writ petition challenging the notice issued by the District Magistrate on the ground that it contravenes the provisions of U.P. Minor Minerals (Concessions) Rules, 1963. The petitioner claimed to be a prospective applicant. In the above context, the Division Bench considered the concept of locus standi. Following was laid down in paragraphs 12,13 and 14:
"12. The meaning of the words "a person aggrieved" is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establishing that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved if a legal burden is imposed on him.
13. Supreme Court has laid down in a number of decisions that in order to have the locus-standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is released or modified. In other words, as a general rule infringement of some legal interest in hearing in the petitioner is necessary to give him a locus standi in the matter. (See AIR 1952 SC 12, State of Orissa V. Madan Gopal; and AIR 1973 SC 2720, Dr. Satyanarayana Sinha Vs. S. Lal and Company).
14. The expression "ordinarily" indicates that this is not a cast iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject-matter of the proceedings will be covered by this rule. In the context of locus-standi the applicant aggrieved through a procrustean approach should be avoided, as a rule, the Court should not interfere at the instance of a stranger unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact of public interests. On the contrary, the result of the exercise of these discretionary powers in favour of the applicant will, on balance, be against public policy."
In Tejender Malik's case, the petitioner had challenged the order passed for renewal of mining lease. It was pleaded in the said case that the petitioner was resident of different district and he had not disclosed as to how he was aggrieved by the grant of renewal lease in favour of respondent no. 4. In context of the facts of the above case, the Division Bench laid down following in paragraphs 146 and 147:
"146. We are of the opinion that for a person to have locus standi to question any action of an authority in regard to any subject-matter or transaction, he must show his material or substantial interest in such subject-matter or transaction, and further, as to how such interest has been adversely affected by the action of such authority giving rise to grievance of the petitioner. Mere academic possibility that the petitioner may get an interest in any subject-matter or transaction on account of his qualification/eligibility will not entitle such a person to question any action taken with regard to such subject-matter or transaction. It is only when he, in fact, gets locus standi to question any action in regard to such subject-matter or transaction.
147. In the present case, except for the assertion that the petitioner is a citizen of India, nothing has been shown as to how the petitioner has any material or substantial interest in the subject-matter, namely; grant of mining lease in respect of the areas in question. There is no averment to show that the petitioner ever made any effort for grant of mining lease in respect of the areas in question. There is no averment by the petitioner regarding any step having been taken by him for grant of mining lease in his favour in respect of the areas in question while the matter regarding grant of renewal of lease in favour of the respondent No. 4 was under consideration. No averment has been made by the petitioner regarding any step having been taken by him to oppose grant of renewal of lease of the areas I question in favour of the respondent No. 4 before such renewal was done. No averment has been made by the petitioner regarding any step having been taken by him to oppose grant of renewal of lease of the areas in question in favour of the respondent No. 4 before such renewal was done. No averment has been made by the petitioner that he was at all in picture till the grant of renewal of the lease in favour of the respondent No. 4. In the circumstances, the petitioner has failed to show any material or substantial interest which might have been adversely affected by the grant of renewal of lease in favour of the respondent no. 4. Mere possibility that the petitioner could have participated in case the auction was held in accordance with Chapter IV of the 1963 Rules does not give him any interest, much less, any material or substantial interest to question the grant of renewal of lease in favour of the respondent No. 4. Hence, the petitioner has no locus standi to file the present writ petition challenging the grant of renewal of lease in favour of the respondent No. 4"
The two Division Bench judgements relied by learned Counsel for the petitioner were on its own facts and the proposition laid down was that for a person to have locus standi to question an action of any authority he must show his material and substantial interest in subject matter. As noted above, the present is a case where operation by the respondent no. 5 in the village where the petitioner is residing has a direct impact on the environment and pollution. The petitioner who is affected by environmental degradation and increases in pollution cannot be said to be a person who has no interest in the subject matter. Further as noted above, it was on the complaint of the petitioner that mining operation of respondent no. 5 was stopped by the Sub Divisional Magistrate and subsequently, the District Magistrate decided the matter in pursuance of the order of this Court where inspite of he having found that respondent no. 5 has not obtained environmental clearance did not advert to the question of effect of non obtaining environmental clearance.
The submission of respondent no. 5 that a Public Interest Litigation has already been filed by one Satyendra Kumar Misra being writ petition No. 57988 of 2012 on same facts, cannot be a factor which may deny the petitioner to file this writ petition praying for stopping the respondent no. 5 from carrying on her mining operation more so; when on a complaint submitted by the petitioner, the Sub Divisional Magistrate passed an order on 13.3.2013 for stopping the mining operation. The writ petition of Satyendra Kumar Misra was filed in the year 2012 and the order dated 13.3.2013 stopping the mining operation of respondent no. 5 was not even available at the time when that writ petition was filed. The filing of Public Interest Litigation thus, does not disentitle the petitioner to file the present writ petition. We are, thus, of the view that the petitioner has locus to file the present writ petition and the writ petition cannot be thrown out on the ground of locus.
The Issue Nos.2 and 3 being interconnected, are considered together. Before we note the statutory provisions covering the field, it is relevant to note the factors and object with which the various legislations were made.
Due to unabated exploitation of natural resources, deforestation, digging of hills, industrialization and other man made devices severe adverse impact on environment and ecology was felt by all international communities, national organisations as well as nations. Unanimity grew between the nations to find out measures to control the adverse impact on environment and ecology. The Stockholm Declaration of 1972 was a major step towards achieving the object which declaration is described as 'Magna Carta of our environment'. In the Stockholm Declaration India was also one of the participating countries which also expressed its deep concern. Several important principles were enunciated in the Stockholm Declaration for sustaining humanity and its environment. The Apex Court had occasion to note the important declarations of the Stockholm in the case of Essar Oil Limited vs. Halar Utkarsh Samiti and others reported in 2004(2) SCC 392. It is useful to refer to paragraphs 26 and 27 of the said judgment to have a clear view of the principles which were enunciated in the Stockholm Declaration which are as under:-
"26. Certain principles were enunciated in the Stockholm Declaration giving broad parameters and guidelines for the purposes of sustaining humanity and its environment. Of these parameters, a few principles are extracted which are of relevance to the present debate. Principle 2 provides that the natural resources of the earth including the air, water, land, flora and fauna especially representative samples of natural eco-systems must be safeguarded for the benefit of present and future generations through careful planning and management as appropriate. In the same vein, the 4th principle says "man has special responsibility to safeguard and wisely manage the heritage of wild life and its habitat which are now gravely imperiled by a combination of adverse factors. Nature conservation including wild life must, therefore, receive importance in planning for economic developments".
These two principles highlight the need to factor in considerations of the environment while providing for economic development. The need for economic development has been dealt with in Principle 8 where it is said that "economic and social development is essential for ensuring a favourable living and working environment for man and for creating conditions on earth that are necessary for improvement of the quality of life". The importance of maintaining a balance between economic development on the one hand and environment protection on the other is again emphasized in Principle 11 which says:
"The environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries nor should they hamper the attainment of better living conditions for all;"
27. This, therefore, is the aim - namely to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other. This view was also taken by this Court in Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281, 296 where it was said:
"while economic development should not be allowed to take place at the cost of ecology or by causing wide spread environment destruction and violation, at the same time the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa but there should be development while taking due care and ensuring the protection of environment".
The Parliament, to give effect to its commitment to the protection of environment has made amendment in the Constitution of India by 42nd Amendment Act, 1976. Article 48A was inserted by the said Amendment Act which is to the following effect:-
"48A. Protection and improvement of environment and safeguarding of forests and wild life.- The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country."
Part-IVA to the Constitution i.e. fundamental duties was also inserted in the constitution by the said amendment. One of the fundamental duties mentioned in Article 51-A is to the following effect:-
"51A. Fundamental duties.- It shall be the duty of every citizen of India-
(a) .........;
(b) .........;
(c) .........;
(d) .........;
(e) .........;
(f) .........;
(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;
(h) .......;
(i) .......;
(j) ........"
Then there came an Act to provide for protection and improvement of environment and for matters connected thereto, namely, The Environment (Protection) Act, 1986 (hereinafter referred to as the 1986 Act to fulfill its commitment to the Stockholm Declaration of 1972. Section 3 of the 1986 Act provided for power of the Central Government to take measures to protect and improve the environment. Section 3(1) of the 1986 Act provides as under:-
"3. Power of Central Government to take measures to protect and improve environment.- (1) Subject to the provisions of this Act, the Central Government, shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution.
........"
Section 3(2) of the 1986 Act enumerates several measures which Central Government may take for the purposes of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. Section 3(2)(v), which is relevant for the present case, is quoted below:-
"3. Power of Central Government to take measures to protect and improve environment.- (1) .......
(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:--
(i) ........
(a) ......
(b) ......;
(ii) .......;
(iii) .......;
(iv) .......:
(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;
........"
Under the 1986 Act, rules have been framed, namely, The Environment (Protection) Rules, 1986 (hereinafter referred to as the 1986 Rules). Rule 5 of the 1986 Rules provides prohibition and restriction on the location of industries and the carrying on processes and operations in different areas. Rule 5(3) of the 1986 Rules, which is relevant for the present case, is quoted below:-
"5. Prohibitions and restrictions on the location of industries and the carrying on processes and operations in different areas.-(1) .......
(2) ......
(3) (a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the locations Of an industry or the carrying on of processes and operations in an area, it may by notification in the Official Gazette and in such other manner as the Central government may deem necessary from time to time, give notice of its intention to do so.
(b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the locations of the industries and carrying on of process or operations in that area.
(c) Any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette.
(d) The Central Government shall within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette consider all the objections received against such notification and may within one hundred and eighty days from such day of publication] impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area.
......."
A notification dated 14th September, 2006 was issued in exercise of the power under Section 3 of the 1986 Act read with Clause (d) of Rule 5(3) of the 1986 Rules in supercession of earlier notification dated 27th January, 1994. It is useful to quote the relevant extract of the notification including paragraphs 2 and 4 which are as under:-
"Ministry of Environment and Forest, Noti. No.S.O.1533(E), dated September 14, 2006, published in the Gazette of India, Extra, Part II, Section 3(ii), dated 14th September, 2006, pp.36-72, No.1067.
Whereas, a draft notification under sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 for imposing certain restrictions and prohibitions on new projects or activities, or on the expansion or modernization of existing projects or activities based on their potential environmental impacts as indicated in the Schedule to the notification, being undertaken in any part of India1, unless prior environmental clearance has been accorded in accordance with the objectives of National Environment Policy as approved by the Union Cabinet on 18th May, 2006 and the procedure specified in the notification, by the Central Government or the State or Union territory Level Environment Impact Assessment Authority (SEIAA), to be constituted by the Central Government in consultation with the State Government or the Union territory Administration concerned under sub-section (3) of section 3 of the Environment (Protection) Act, 1986 for the purpose of this notification, was published in the Gazette of India ,Extraordinary, Part II, section 3, sub-section (ii) vide number S.O. 1324 (E) dated the 15th September ,2005 inviting objections and suggestions from all persons likely to be affected thereby within a period of sixty days from the date on which copies of Gazette containing the said notification were made available to the public;
And whereas, copies of the said notification were made available to the public on 15th September, 2005;
And whereas, all objections and suggestions received in response to the above mentioned draft notification have been duly considered by the Central Government;
Now, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986, read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986 and in supersession of the notification number S.O. 60 (E) dated the 27th January, 1994, except in respect of things done or omitted to be done before such supersession, the Central Government hereby directs that on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Government under sub-section (3) of section 3 of the said Act, in accordance with the procedure specified hereinafter in this notification.
2. Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category ''A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category ''B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:
(i) All new projects or activities listed in the Schedule to this notification;
(ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;
(iii) Any change in product - mix in an existing manufacturing unit included in Schedule beyond the specified range.
3. State Level Environment Impact Assessment Authority:- ......
4. Categorization of projects and activities:- (i) All projects and activities are broadly categorized in to two categories - Category A and Category B, based on the spatial extent of potential impacts and potential impacts on human health and natural and man made resources.
(ii) All projects or activities included as Category ''A' in the Schedule, including expansion and modernization of existing projects or activities and change in product mix, shall require prior environmental clearance from the Central Government in the Ministry of Environment and Forests (MoEF) on the recommendations of an Expert Appraisal Committee (EAC) to be constituted by the Central Government for the purposes of this notification;
(iii)All projects or activities included as Category ''B' in the Schedule, including expansion and modernization of existing projects or activities as specified in sub paragraph (ii) of paragraph 2, or change in product mix as specified in sub paragraph (iii) of paragraph 2, but excluding those which fulfill the General Conditions (GC) stipulated in the Schedule, will require prior environmental clearance from the State/Union territory Environment Impact Assessment Authority (SEIAA). The SEIAA shall base its decision on the recommendations of a State or Union territory level Expert Appraisal Committee (SEAC) as to be constituted for in this notification. In the absence of a duly constituted SEIAA or SEAC, a Category ''B' project shall be treated as a Category ''A' project;"
The Schedule to the notification contains a list of projects or activities requiring prior environmental clearance. The Schedule to the notification is as follows:-
"SCHEDULE (See paragraph 2 and 7) LIST OF PROJECTS OR ACTIVITIES REQUIRING PRIOR ENVIRONMENTAL CLEARANCE Project or Activity Category with threshold limit Conditions if any A B 1 Mining, extraction of natural resources and power generation (for a specified production capacity)
(a) ( (1) (2) (3) (4) (5) 1 1(a) Mining of minerals > 50 ha. of mining lease area Asbestos mining irrespective of mining area <50 ha.
>5 ha. of mining lease area.
General Condition shall apply Note Mineral prospecting (not involving drilling) are exempted provided the concession areas have got previous clearance for physical survey"
Paragraph 1(a) of the said Schedule has further been amended by notification dated 1st December, 2009, however, in column No.(4) the requirement of environmental clearance remained for an area of mining lease of 5 hectare or more.
From the above statutory provisions, it is clear that for a mining lease of 5 hectares or more, environmental clearance is mandatory and no mining operation could have been carried on without obtaining environmental clearance for an area of less than 50 hectares and more than 5 hectares as mentioned in Category-B to the Schedule for which environmental clearance is required to be obtained from the State Environment Impact Assessment Authority.
Then came the judgment of the Apex Court in the case of Deepak Kumar and others vs. State of Haryana and others reported in (2012)4 SCC 629, decided on 27th February, 2012. The Government of Haryana issued auction notice proposing to auction the extraction of minor minerals, boulders, gravel and sand quarries of an area not exceeding 4.5 hectares and area exceeding 5 hectares in the year 2011. The Apex Court directed the Ministry of Environment and Forest to examine whether there has been an attempt to flout EIA notification dated 14th September, 2006 by breaking the homogeneous area into pieces of less than 5 hectares. Before the Apex Court it was contended that excessive mining has caused serious environmental degradation and ecological impact and no environmental impact assessment has ever taken place. The Apex Court in paragraph 8 of the judgment has held that removal of minor minerals, boulders, gravel, sand quarries etc. covered by auction notices would cause environmental degradation. Following was observed in paragraphs 8, 11 and 15 of the judgment which are quoted below:-
"8. We have no materials before us to come to the conclusion that the removal of minor mineral boulder, gravel, sand quarries etc. covered by the auction notices dated 3.6.2011 and 8.8.2011, in the places notified therein and also in the river beds of Yamuna, Ghaggar, Tangri, Markanda, Krishnavati river basin, Dohan river basin etc. would not cause environmental degradation or threat to the biodiversity, destroy riverine vegetation, cause erosion, pollute water sources etc. Sand mining on either side of the rivers, upstream and in-stream, is one of the causes for environmental degradation and also a threat to the biodiversity. Over the years, India's rivers and Riparian ecology have been badly affected by the alarming rate of unrestricted sand mining which damage the ecosystem of rivers and the safety of bridges, weakening of river beds, destruction of natural habitats of organisms living on the river beds, affects fish breeding and migration, spells disaster for the conservation of many bird species, increases saline water in the rivers etc.
11. We find that it is without conducting any study on the possible environmental impact on/in the river beds and else- where the auction notices have been issued. We are of the considered view that when we are faced with a situation where extraction of alluvial material within or near a river bed has an impact on the rivers physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity, it is not an answer to say that the extraction is in blocks of less than 5 hectares, separated by 1 kilometre, because their collective impact may be significant, hence the necessity of a proper environmental assessment plan.
15. MoEF's attention was drawn to several instances across the country regarding damage to lakes, riverbeds and groundwater leading to drying up of water beds and causing water scarcity on account of quarry/mining leases and mineral concessions granted under the Mineral Concession Rules framed by the State Governments under Section 15 of the Mines and Minerals (Development and Regulation) Act 1957. MoEF noticed that less attention was given on environmental aspects of mining of minor minerals since the area was small, but it was noticed that the collective impact in a particular area over a period of time might be significant. Taking note of those aspects, MoEF constituted a Core Group under the Chairmanship of the Secretary (E&F) to look into the environmental aspects associated with mining of minor minerals, vide its order dated 24.03.2009."
The Apex Court further in the said judgment took into consideration the recommendations made by Ministry of Environment and Forest. In paragraph 19 of the judgment, the Apex Court extracted the recommendations. The conclusion of the report were recorded in paragraph 5.0 of the report. Part of paragraph 19 and paragraph 20 of the judgment is quoted below:-
"19. For an easy reference, we may extract the issues and recommendations made by the MoEF, which are as follows:
4.0 Issues and recommendations 4.1...........
...........
..........
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.
20. The report clearly indicates that operation of mines of minor minerals needs to be subjected to strict regulatory parameters as that of mines of major minerals. It was also felt necessary to have a re-look to the definition of "minor" minerals per se. The necessity of the preparation of "comprehensive mines plan" for contiguous stretches of mineral deposits by the respective State Governments may also be encouraged and the same be suitably incorporated in the Mineral Concession Rules, 1960 by the Ministry of Mines."
The Apex Court in the said judgment ultimately issued directions in paragraph 29 which were to the following effect:-
"19. We, in the meanwhile, order that leases of minor mineral including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from the MoEF. Ordered accordingly."
Thus by judgment of the Apex Court in Deepak Kumar's case (supra), the leases of minor mineral for an area of less than 5 hectares were also taken into fold of the same regulatory provisions as was enforced by notification dated 14th September, 2006.
There is no dispute between the parties that respondent No.5 has been granted mining lease of 9 acres (3.64 hectares) on 22nd of February, 2012. The respondent No.5 had not obtained any environmental clearance from the State Level Environment Impact Assessment Authority. The District Magistrate in his order dated 13th May, 2013 (Annexure-8 to the writ petition) has categorically found that respondent No.5 has not obtained environmental clearance and permission for mining.
Learned Senior Advocate appearing for the respondents, has submitted that lease granted to respondent No.5 being prior to judgment in Deepak Kumar's case (supra) i.e. prior to 27th February, 2012, the directions in the said judgment are not applicable on respondent No.5. He further submits that direction of the Apex Court shall prospectively apply and shall apply to the leases or renewal granted after 27th February, 2012 and since lease granted in favour of respondent No.5 was prior to the said date, the respondent No.5 is not obliged to obtain environmental clearance.
After the judgment of the Apex Court in Deepak Kumar's case (supra), the Ministry of Environment and Forest has issued an order on 18th May, 2012 which has been filed as Annexure-3 to the writ petition. It is useful to extract the Government order dated 18th May, 2012 which is to the following effect:-
"No. L-llOll/47/2011-IA.II(M) Government of India Ministry of Environment I. Forests Paryavaran Bhavan, C.G.D. Complex, Lodi Road, New Delhi-ll0003.
Telefax: 24362434 Dated the 18th May, 2012 OFFICE MEMORANDUM Sub: Order of Hon'ble Supreme Court dated 27.2.2012 in I.A. no. 12-13 of 2011 in SLP (C) no. 19628-19629 of 2009 in the matter of Deepak Kumar etc. Vs State of Haryana and Ors. - Implementation thereof - Regarding.
Reference is invited to the above mentioned order of the Hon'ble Supreme Court directing inter-alia as under:
"We in the meanwhile, order that leases of minor mineral including their renewal for an area of less than 5 ha be granted by the States/UTs only after getting environmental clearance from the MoEF.
2. The Environment Impact Assessment (EIA) Notification, 2006, as amended, requires mining projects (new projects, expansion or modernization of existing projects as also at the stage of renewal of mine lease) with lease area of 5 ha and above, irrespective of the mineral (major or minor} to obtain prior environment clearance under the provisions thereof. Mining projects with lease area of 5 ha and above and less than 50 ha are categorized as category 'B' whereas projects with lease area of 50 ha and above are categorized as category 'A'. The category 'A' projects are considered at the central level in the Ministry of Environment & Forests while category 'B' projects are considered by the respective State/UT Level Environment Impact Assessment Authority, notified by MoEF under the EIA Notification, 2006.
3. In order to ensure compliance of the above referred order of the Hon'ble Supreme Court dated 27.2.2012, it has now been decided that all mining projects of minor minerals including their renewal, irrespective of the size of the lease would henceforth require prior environment clearance. Mining projects with lease area up to less than 50 ha including projects of minor mineral with lease area less than 5 ha would be treated as category 'B' as defined in the EIA Notification, 2006 and will be considered by the respective SEIAAs notified by MoEF and following the procedure prescribed under EIA Notification, 2006.
4. Further, the Hon'ble Supreme Court in its order dated 16.4.2012 in the above mentioned matter and the linked applications has observed as under:
"All the same, liberty is granted to the applicants before us to approach the Ministry of Environment and Forests for permission to carry on mining below five hectares and in the event of which Ministry will dispose of all the applications within ten days from the date of receipt of the applications in accordance with law,"
Accordingly, the respective SEIAAs in dealing with the applications of the applicants referred to in the above mentioned order shall ensure that the directions of the Hon'ble Supreme Court are effectively complied with and the applications of such applicants are disposed of within the time limit prescribed by the Hon'ble Court in accordance with law.
This issues with the approval of the Competent Authority.
Sd/- illegible (Dr. S.K. Aggarwal) Director"
The order of the Central Government dated 18th May, 2012 is clearly referable to the direction issued under Section 5 of the 1986 Act. Thus now for leases of less than 5 hectares area, the EIA notification dated 14th September, 2006 has also been made applicable and they will be treated as in Category-B as defined in the schedule to the notification dated 14th September, 2006.
For answering the above issues, it is relevant to note the statutory scheme of the 1986 Act, 1986 Rules and the notification dated 14th September, 2006. Whether for mining leases of more than 5 hectares area which were granted prior to issuance of the notification dated 14th September, 2006 environmental clearance was necessary, has to be looked into to find out as to whether for leases granted for an area of less than 5 hectares prior to the judgment in Deepak Kumar's case (supra) environmental clearance is necessary.
Rule 5(3)(a) of the 1986 Rules provides that whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the location of an industry or the carrying on of processes and operations in an area, it may, by notification in the official gazette give notice of intention to do so. Rule 5(3)(d) of the 1986 Rules provides that the Central Government, after considering the objections received, may impose prohibition or restrictions on the location of such industries and the carrying on of any process or operation in an area. The notification dated 14th September, 2006, as extracted above, provides ".... the Central Government hereby directs that on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority...". In the Schedule, list of project or activities has been incorporated. Mining of mineral is an activity within the meaning of Schedule to the notification dated 14th September, 2006. It has been provided that activities listed in the Schedule to the notification shall be undertaken in any part of India only after prior environmental clearance. The object of notification is clear that all activities mentioned in the Schedule are prohibited without prior environmental clearance. The notification does not contain any saving to the effect that activities going on prior to issue of notification shall continue and the prohibition or restrictions in the notification shall not effect the activities which are going since before. In case the argument of learned counsel appearing for respondent No.5 is accepted that the notification dated 14th September, 2006 or the judgment in Deepak Kumar's case (supra) is only prospective and shall not effect the mining leases which were granted prior to either the notification or the judgment in Deepak Kumar's cases, the whole purpose and object of prohibition shall be frustrated.
The activities are prohibited to protect the environment. If the activities of one category of entrepreneurs i.e. those entrepreneurs who were granted lease or permission prior to issue of notification is allowed to continue, the purpose and object of checking the environment degradation shall be frustrated. Obtaining environmental clearance is mandatory to carry on activities after the issue of notification dated 14th September, 2006 even though at an earlier point of time such activity was going on. The submission of learned counsel appearing for respondent No.5 that since the lease was granted prior to 27th February, 2012 i.e. prior to judgment of the Apex Court in Deepak Kumar's case (supra), he can continue activity of mining without obtaining environmental clearance is clearly against the object and purpose of the restriction imposed by notification dated 14th September, 2006. As noted above, by direction issued under Section 5 of the 1986 Act dated 18th May, 2012, the Central Government has already applied the notification dated 14th September, 2006 for leases having an area of less than 5 hectares. In this context, it is relevant to notice a Division Bench judgment of this Court in the case of Mohd. Kausar Jah vs. Union of India and others reported in 2011(5) ADJ 125. Two writ petitions were filed before the Lucknow Bench of this Court being Writ Petition No.9416 (M/B) of 2010 and Writ Petition No.10025 (M/B) of 2010. Facts and relief claimed in above two writ petitions were noted in paragraph 1 and 39 of the judgment, which are quoted below:-
"1. Both the writ petitions are being disposed of by a common judgment as the relief and challenges are interconnected. We may first set out and deal with the facts and issues of Writ Petition No.9416 (M/B) of 2010.
The petitioner has moved this Court complaining of violation of Notification No. S.O.1533, dated 14.09.2006 issued by the Ministry of Environment and Forest, Government of India, in exercise of powers under Sub-Section 1 and Clause (v) of Sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 (hereinafter referred to as 'Environment Act') read with Clause (d) of Sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 (hereinafter referred to as 'Environment Rules), which was issued in supersession of the earlier Notification No. S.O. 60(E) dated 27th January, 1994. The allegation is that the State of U.P. and its authorities have failed to carry out the directions as contained in the notification.
39. We may now set out a few facts from Writ Petition No.10025 of 2010 (M/B). The petitioner is holder of mining lease in respect of Survey Nos.2 to 28 measuring 15.28 hectare in village Gangwas alias Jafrabad, Tehsil and District Bulandshahr for the period 01.08.2008 to 31.07.2011. Pursuant to that, he has been carrying on the mining operations. The petitioner states that the officers from the Directorate of Geology and Mining and office of the District Magistrate, Bulandshahr have been verbally asking him to obtain clearance from the competent authority under the notification dated 14.09.2006. The petitioner apprehends that the mining operations in respect of his mining lease would be stayed and, hence, the present petition.
The relief prayed for by the petitioner in Writ Petition No.10025 of 2010 (M/B), to the extent necessary, are being reproduced as under:
1. Issue a writ, order or direction declaring the Environment Protection Act, 1986 and Rules framed thereunder as ultra vires to the Constitution of India, so far as it envisages within itself the power to be made applicable on land and water, as it is beyond the competence of Parliament to legislate in respect of land and water.
2. Issue a writ, order or direction in the nature of certiorari quashing the notification dated 14.09.2006 as contained in Annexure No.1 to the writ petition.
3. Issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to implement the notification dated 14.09.2006 upon the mining lease granted to the petitioner on 1.8.2008 in respect of area namely Survey No.2 to 28 measuring 15.28 hectare situate in Village Gangwas alias Jafrabad, Tehsil and District Bulandshahr."
The Writ Petition No.9416 (M/B) of 2010 was filed complaining violation of notification dated 14th September, 2006 and second writ petition was filed by a lease holder who was granted lease for a period 01.08.2008 to 31.07.2011 seeking a direction to the respondents not to implement the notification dated 14.9.2006 upon mining lease granted to the petitioner. The Division Bench allowed the first writ petition and dismissed the second writ petition. The need for protection of environment was highlighted by the Division Bench and after considering relevant facts and circumstances, following was laid down in paragraphs 32, 33 and 56 of the said judgment:-
"32. The need for environmental protection and sustainable development is now reflected both in our constitutional philosophy as well as municipal legislations. The protection and improvement of human environment are major issues which affect the well-being of peoples and economic development throughout the world. In the State of Uttar Pradesh, inflow the two most important rivers, the the Yamuna and the Ganga, arteries for sustenance of life in this heart land. These rivers, which have been nourishing and sustaining life along its embankment, are now facing environmental degradation. Sand mining on the river beds and embankment is one such activity, the consequence of which has not yet been fully realized. The report of the Committee appointed by this Court pursuant to its order dated 06.03.2009 in Noor Mohammad v. State of U.P. and the report of the Board constituted by the Ministry of Environment and Forest and its recommendations, which have subsequently been forwarded to the various State Governments, is itself an acknowledgement of what thoughtless mining on the river beds and embankments can do. At this point, in our history, we must shape our actions with more prudent care for environmental consequences. Our ignorance and indifference should not result in irreversible harm and damage to the environment and ecology, which sustain life on this planet. We must use nature to build and create a better environment rather than destroy it and endanger the future of human race on this planet.
33. The India has shown its concern for environmental protection by participating in all major Conferences on human environment. Indian participated in the Stockholm Conference in June, 1972 and thereafter has taken steps to implement decisions insofar as they relate to protection and improvement of environment and the prevention of hazard to human beings and other living creatures. India also participated in the Conference held at Rio de Janeiro on environment and development in June 1992, which reaffirmed the Declaration of the United Nations Conference on Human Environment adopted at Stockholm. Principle 11 of the Rio de Janeiro Declaration reads as under:
States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries.
56. Having said so, the question that comes for our consideration is whether we should forthwith ban total mining in respect of mining leases who do not have the necessary clearances under the notification dated 14.09.2006. In our opinion, though prior clearance is mandatory, the approach of this Court on the present facts and circumstances while granting reliefs under Articles 226 and 227, must be to sub serve the larger public interest. Public interest also would mean availability of raw material to the public in general at reasonable rates and also not to deprive the workers, who are working, their right to life, guaranteed under Article 21 of the Constitution. Considering these two aspects, we pass the following directions in Writ Petition No.9416 (M/B) of 2010:
(A) In respect of mining leases whose period expired after coming into force of the notification dated 14.09.2006, as also in respect of new mining leases granted subsequent to 14.09.2006, it is mandatory to obtain environmental clearance under the Notification dated 14.09.2006. Many holders of mining leases from the district Saharanpur have applied for environmental clearance and their applications are pending and as there was some dispute as to whether minor minerals, include sand/silica falling within the definition of mining minerals, we grant time till 30.06.2011 to carry on the mining operations.
(B) The State Government to ensure as on 1.7.2011 that no person anywhere in the State will carry out any mining activity of minor minerals including sand/silica based on the mining leases, which do not have the environmental clearance under the notification dated 14.09.2006.
(C) The State to take steps to implement the report of the Committee appointed in Noor Mohammad vs. State of U.P. pursuant to direction dated 6.3.2009 as referred in para 20 of the judgment and the letter dated 1st June, 2010 from the Ministry of Environment and Forest, Government of India.
The Division Bench issued directions in the said judgment to the State Government on 29th April, 2011 that no person anywhere in the State will carry out any mining activity of minor minerals including sand/slice based on the mining leases, which do not have the environmental clearance under the notification dated 14.9.2006 with effect from 1st July, 2011. Thus the Division Bench clearly held that environmental clearance is mandatory for carrying on any mining activity. The notification dated 14th September, 2006 now being also applicable to leases of less than 5 hectares after the judgment of the Apex Court in Deepak Kumar's case, the same restrictions and prohibition shall also apply to the mining leases of less than 5 hectares area.
In above context, it is also relevant to note the order of the Apex Court in Deepak Kumar's case which was passed on 16th April, 2012. After the judgment in Deepak Kumar's case dated 27th February, 2012, several applications were filed for modification to order dated 27th February, 2012. The applications were also filed seeking clarification of the order. The Apex Court vide its order dated 16th April, 2012 held that no clarification or modification is warranted, however, liberty was granted for permission to carry on mining below 5 hectares and the Ministry was directed to dispose of the application within ten days. It is useful to quote the order of the Apex Court dated 16th April, 2012 which is to the following effect:-
"Heard learned Attorney General who appeared for the applicants and also the learned counsel appearing for the Ministry of Environment & Forests.
We have made it clear in our judgment at paragraph 19 that leases of minor mineral including their renewal of an area less than five hectares can be granted by the States/Union Territories only after getting environmental clearance from the Ministry of Environment and Forests. Hence no clarification or modification of order dated 27th February, 2012 is warranted.
All the same, liberty is granted to the applicants before us to approach the Ministry of Environment & Forests for permission to carry on mining below five hectares and in the event of which Ministry will dispose of all the applications within ten days from the date of receipt of the application in accordance with law."
Some other judgments of the Apex Court which has bearing on the issues involved needs to be noted. In the case of Ambica Quarry Works vs. State of Gujarat and others reported in (1987)1 SCC 213, challenge was made to an order refusing renewal of mining lease on the ground that land fell under reserve forest, hence the permission under the Forest (Conservation) Act, 1980 is required. The said order was challenged by the applicant in the High Court which was dismissed. Thereafter matter was taken to the Apex Court. In the said case the Apex Court observed that obligation to the society must predominate over the obligation to the individuals. Following was laid down in paragraphs 14 and 15 of the said judgment:-
14. Here the case of the appellants is that they have in- vested large sums of money in mining operations. Therefore, it was the duty of the authorities that the power of granting permission should have been so exercised that the appellants had the full benefits of their investments. It was emphasized that none of the appellants had committed any breach of the terms of grant nor were there any other factors disentitling them to such renewal. While there was power to grant renewal, and in these cases there were clauses permitting renewals, it might have cast a duty to grant such renewal in the facts and circumstances of the cases specially in view of the investments made by the appellants in the areas covered by the quarrying leases, but renewals cannot be claimed as a matter of right for the following reasons.
15. The rules dealt with a situation prior to the coming into operation of 1980 Act. ' 1980 Act' was an Act in recog- nition of the awareness that deforestation and ecological imbalances as a result of deforestation have become social menaces and further deforestation and ecological imbalances should be prevented. That was the primary purpose writ large in the Act of 1980. Therefore the concept that power coupled with the duty enjoined upon the respondents to renew the lease stands eroded by the mandate of the legislation as manifest in 1980 Act in the facts and circumstances of these cases. The primary duty was to the community and that duty took precedence, in our opinion, in these cases. The obligation to the society must predominate over the obligation to the individuals.
In the case of M.C. Mehta vs. Union of India and others reported in (2004)12 SCC 118, the State of Haryana has stopped the mining operation on Badkal lake and Surajkund. In public interest litigation various applications were filed including the application by Delhi Ridge Management Board, The notification under Section 3(1) read with Rule 5(3) dated 27th January, 1994 was issued imposing restrictions. The applicability of the notification dated 27th January, 1994 was also considered by the Apex Court. The argument that notification dated 27th January, 1994 would not apply to leases which come up for consideration for renewal after issue of the notification was rejected. The Apex Court held that no mining operation can commence without obtaining environmental impact assessment in terms of the notification. Following was laid down in paragraph 77 of the judgment:-
"77. We are unable to accept the contention that the notification dated 27th January, 1994 would not apply to leases which come up for consideration for renewal after issue of the notification. The notification mandates that the mining operation shall not be undertaken in any part of India unless environmental clearance by the Central Government has been accorded. The clearance under the notification is valid for a period of five years. In none of the leases the requirement of notification was complied with either at the stage of initial grant of the mining lease or at the stage of renewal. Some of the leases were fresh leases granted after issue of the notification. Some were cases of renewal. No mining operation can commence without obtaining environmental impact assessment in terms of the notification."
Thus the submission of learned counsel for respondent No.5 that respondent can carry on mining operation without obtaining environmental clearance since his leases were granted prior to judgment in Deepak Kumar's case (supra) dated 27th February, 2012 cannot be accepted. The prohibition of carrying on mining operation without there being environmental clearance is very much applicable on the mining lease of respondent No.5. To perming mining leases granted prior to the judgment in Deepak Kumar's case (supra) having area of less than 5 hectares to continue to carry on mining operation will frustrate the very purpose and object of various measures taken by the Central Government under the 1986 Act, 1986 Rules and notification dated 14th September, 2006. We are of the view that mining leases even of an area of less than 5 hectares require environmental clearance in view of the judgment of the Apex Court in Deepak Kumar's case (supra) and no lessee of mining lease shall be allowed to carry on mining operation without obtaining environmental clearance.
As noted above, the District Magistrate in its order dated 13th May, 2013 has noted that respondent No.5 has not obtained environmental clearance. The State Government by Government order dated 10th September, 2012 which has been filed by the petitioner as Annexure-5 to the writ petition, has directed that for mining of minor minerals, environmental clearance certificate be obtained and the order further provided that in next two months' period environmental clearance be obtained as per the notification dated 14th September, 2006. The said order also refers to earlier Government order dated 22nd March, 2012 of the State Government where the State Government had directed for obtaining environmental clearance certificate prior to execution of deed or start of mining operation in accordance with the notification dated 14th September, 2006 and as per the judgment of the Apex Court in Deepak Kumar's case (supra). The aforesaid Government orders clearly indicates that State Government itself has issued direction that no mining operation be carried on without obtaining environmental clearance certificate under the notification dated 14th September, 2006. The District Magistrate committed error in not taking any measure to stop the mining operation of respondent No.5 he having found in his order dated 13th May, 2013 that no environmental clearance has been obtained by respondent No.5. It was the duty of the District Magistrate to have stopped mining operation which was being carried on without obtaining environmental clearance certificate by respondent No.5 as per notification dated 14th September, 2006.
In view of foregoing discussions, we answer Issue No.2 and 3 in following manner:-
(2)The respondent No.5 was obliged to obtain environmental clearance in accordance with the provisions of the 1986 Act , notification dated 14th September, 2006 and as per the judgment of the Apex Court in Deepak Kumar's case (supra).
(3)For mining leases granted prior to judgment in Deepak Kumar's case (supra) for area of less than 5 hectares also there is requirement of obtaining environmental clearance and lessee are prohibited from carrying on there mining operation without obtaining environmental clearance.
In result, the writ petition deserves to be and is hereby allowed. The order dated 13th May, 2013 is set-aside. The District Magistrate is directed to pass an order for stopping the mining work by respondent No.5 which is being carried on in pursuance of the lease dated 23rd February, 2012 till respondent No.5 obtains environmental clearance certificate in accordance with law.
Parties shall bear their own costs.
Date: 02.8.2013.
LA/Rakesh