Indian Kanoon - Search engine for Indian Law

14. On the other hand, Shri Naman Nagrath, learned Additional Advocate General appearing for the State respondents in W.P. No.13329/2009 while refuting the contentions advanced on behalf of the petitioner submitted that in Schedules I & II appended to the 1996 Rules several minor minerals have been mentioned. However, only sand and 'bajri' have been exempted from the requirement of obtaining environmental clearance. It has been submitted that sand and 'bajri' constitute altogether different class of minor minerals for which neither any mining nor any quarrying is required. Sand and 'bajri' are mere surface deposits and thus are accumulated on account of natural flow of river water. Though sand and 'bajri' are minor minerals but no mining whatsoever or even quarrying operations are required to be carried out and therefore Rule 49 of the 1996 Rules exempts sand and 'bajri' from environment clearance because quarrying of sand and ''bajri'' does not cause any environmental pollution. While referring to Rule 2(xxix) it has been submitted that expressions "Mines" and "Owner"

for the purpose of M.P. Minor Rules, have the same meanings respectively assigned to them in the Mines Act, 1952. Section 3(b) provides that Mines Act shall not apply to any mines engaged in the extraction of kankar, murram, laterite, boulder, gravel, minor sand, etc. Rule 5 of the 1996 Rules deals with restrictions on the grant of trade quarry or quarry lease. Rule 5(2)(d) of the 1996 Rules provides that no quarry lease or trade quarry shall be granted in respect of an area except for the mineral sand or 'bajri', within the distance of 100 meters from river banks, nalas, canal, reservoir, dam, any natural water course or any water impounding structure. Thus, for extraction of sand and 'bajri' no mining activity is involved. It has further been contended that in exercise of powers under Section 18 of Mines and Minerals (Development and Regulation) Act, 1957 the Central Government has framed Mineral Conservation and Development Rules, 1988. Chapter V of the said Rules deals with environment clearance which contains Rules 31 to 41. However, Rule 2(iv) of the 1988 Rules provides that rules shall not apply to minor minerals. It has further been contended that MMDR Act as well as Mines Act and the 1988 Rules exempt all the minor minerals from the requirement of obtaining environmental clearance. The State Government has only exempted sand and 'bajri' quarry from the requirement of obtaining environmental clearance. It has further been contended that no limits or standards of emission or discharge of environmental pollutants have been prescribed either by the Act or the Rules in respect of quarrying of sand and 'bajri', therefore, the provisions of the Act and the Rules as well as the notification do not apply to the quarrying operations of sand and 'bajri'. In support of the aforesaid propositions learned counsel has placed reliance on the decisions of the Supreme Court in M.V.Krishnan Nambissan v. State of Kerala, AIR 1966 SC 1676 and Hindustan Lever Ltd. vs. Food Inspector and another, (2004) 13 SCC 83. It has further been contended that notification dated 14.9.2006 does not apply to quarrying of sand and 'bajri' as the notification only applies to activity of mining. While referring to definition of "mining operation" and "quarrying operation" in Rule 2(xxii) of the 1996 Rules, it has been contended that "mining operations" and "quarrying operations" mean any operation undertaken for the purpose of mining any minor mineral and shall include erection of Machinery, construction of roads and other preliminary operations for the purpose of quarrying and concomitant of handling and transport of minerals up to the point of dispatch. Since no machinery is required to be erected for quarrying sand and 'bajri', therefore, quarrying of sand and 'bajri' does not amount to mining operations and consequently the notification dated 14.9.2006 does not apply to the activity of quarrying of sand and 'bajri'.

17. Shri V. Bhide, learned counsel for respondent No.6 while adopting the submissions made by the learned counsel for respondent No.5 has submitted that for quarrying of sand and 'bajri', the requirement of prior environmental clearance is necessary. Learned counsel has placed reliance on the decisions of Supreme Court in M.C. Mehta vs. Union of India, (2009) 6 SCC 142 in support of his submissions.

18. Shri Viplav Sharma, learned counsel for the petitioner in W.P.No.13118/2009, has submitted that MMDR Act was enacted by the Parliament in 1957 whereas Water Act, Air Act and Environment (Protection) Act were respectively enacted in the years 1974, 1981 and 1986. After the enactment of environment laws, Section 15(1A) was incorporated in the MMDR Act with effect from 10.2.1987 which empowers the State Government to frame rules in respect of minor minerals in respect of the matter specified in sub-section (1A) of Section 15. In exercise of powers conferred under sub-section (1-A) of Section 15 of the MMDR Act, the State Government has framed Madhya Pradesh Minor Mineral Rules, 1996. Rule 49(1) of the 1996 Rules contains a non-obstante clause and provides that provisions of Rules 44 to 48 shall not apply to sand and 'bajri' quarrying. Though the notification dated 14.9.2006 does not apply to sand and 'bajri' quarrying yet even if it assumed that it applies to sand and 'bajri' quarrying then it runs foul to Rule 49(1) of the 1996 Rules. It is submitted that it is trite law that provisions of Rules have to prevail over the notification.

"49. Relaxation from protection of Environment. - (1) Notwithstanding anything contained in these rules the provisions of Rules 44, 45, 46, 47 and 48 shall not apply to sand and 'bajri' quarrying.

(2) Relaxations may be granted by the Director, to a quarry lease holder from all or some of the provisions of environmental protection on special considerations."

25. Thus, sub-rule (1) of Rule 49 of the 1996 Rules provides that provisions of Rules 44 to 48 of the 1996 Rules shall not apply to sand and 'bajri' quarry. Thus, by sub-rule (1) of Rule 49 of the 1996 Rules, the provisions of Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986 and the Rules made thereunder have been made inapplicable in respect of sand and 'bajri' quarry.