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AFR

Reserved

Writ Petition No. 9416 (M/B) of 2010

Mohd. Kausar Jah vs. Union of India and others

AND

Writ Petition No.10025 of 2010 (M/B)

Shyam Bahadur Sakhya

Vs.

Union of India & Ors.

****

Appearance:

For the petitioner: Mr. R.N. Trivedi, Sr. Advocate assisted by

Mr. Akhilesh Kalra, Advocate.

Mr. Mohd. Arif Khan, Sr. Advocate assisted by

Mr. Gaurav Mehrotra, Advocate.

For the respondents: Mr. S.P. Singh, Sr. Advocate assisted by

Ms. Pushpila Bisht, Advocate.

Mr. J.N. Mathur, Addl. Advocate General &

Dr. Ashok Nigam, Addl. Solicitor General of India.

Hon’ble Ferdino I. Rebello, Chief Justice.

Hon’ble Devi Prasad Singh, J.

(Delivered by: Justice Ferdino I. Rebello, CJ)

Both the writ petitions are being disposed of by a common

judgment as the relief and challenges are inter-connected. 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

]eutral&zitation&]ow&g&4W9957;zgQYX59((/Cg“H

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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 27

th

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.

2.It is the petitioner’s grievance that the authorities of the State of

U.P., in abuse of their statutory powers, are permitting and encouraging

illegal mining activity by grant of mining leases without any conditions

for obtaining prior environmental clearance before commencement of

mining operations, in contravention of Central as well as the State Acts

and the Rules. Thus, it is submitted that the continuation of illegal mining

(mining without prior environmental clearance) is in teeth of the Hon’ble

Supreme Court’s judgments dated 18.3.2004 and 8.5.2009 in Writ

Petition (Civil) No. 4677 of 1985 (M.C. Mehta vs. Union of India and

others) wherein it has been held that no mining, including mining of

minor minerals under any lease, permit or grant, can be allowed without

prior environmental clearance.

3.A decision was taken for protection of environment and ecology

considering India’s participation and adoption of the Stockholm

Declaration, which was taken at the United Nation Conference on Human

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Environment, Stockholm in June, 1972. Pursuant to that, the

Environment Act had been enacted, so far as they relate to the protection

and improvement of environment and the prevention of hazards to human

beings, other living creatures, plants and property. Petitioner then refers

to various provisions of the Environment Act and the Rules. It is the

petitioner’s contention that Notification No. S.O. 1533 dated 14.9.2006 is

applicable also to mining of minor minerals and there can be no renewal

or grant of fresh licence after the Notification of 14.9.2006 without

having prior environmental clearance. In the State of U.P., it is set out,

that leases have been issued in utter disregard and violation of the

notification. Though, the petitioner had been representing the issue, no

action has been taken to protect the environmental degradation. The

petitioner has made one such representation on 27.8.2010.

4.Petitioner states that the concept of “Mining” within the Principle

of Sustainable Development comes within the concept of “Balancing”

whereas mining beyond the Principle of Sustainable Development comes

within the concept of “Banning”. It is a matter of degree. Balancing of

the mining activity with environment protection and banning such

activity are two sides of the same principle of sustainable development.

They are parts of precautionary principle.

5.The petitioner points out that in State of Uttar Pradesh in district

Saharanpur alone, a number of leases have been granted by the District

authorities after the issuance of notification dated 14.9.2006 without

adhering to the requirement of obtaining prior environmental clearance

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before commencement of mining operations from the statutory

authorities, such as, State Level Environment Impact Assessment

Authority (EIAA) or the Central Government, as the case may be. The

petitioner sought information from the district Administration,

Saharanpur to find out as to whether the clearance from the State Level

EIAA or the Central Government had been obtained. The petitioner was

given information about the grant of mining lease in respect of various

areas and that the same were granted for excavation of minor mineral

after 14.9.2006 for the period 2008-2012. So far as the Information

regarding environmental clearance is concerned, the petitioner was

informed that there is only one person who has obtained the

environmental clearance on 20.08.2007, and that about 29 other Mining

Projects located in Saharanpur district of U.P. have been in process in

MOEF. It is the case of the petitioner, therefore, that these Mining

Projects of minor minerals do not have environmental clearance as on

date, and thus, as these Projects do not have the requisite environmental

clearance, cannot be made operational, as the same is contrary to the

provisions of the Environment Act and the Rules and the Notification.

6.It is not necessary to refer to the other pleadings and the grounds

raised. The petitioner has prayed for the following reliefs:-

(i)“Issue a writ, order or direction in the nature of

Mandamus, directing the opposite party no. 2 to consider

and decide the representation dated 27.8.2010 made by

the petitioner and is contained in Annexure No. 2 to this

writ petition, at the earliest.

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(ii)Issue a writ, order or direction in the nature of

Mandamus, directing the opposite parties to immediately

stop the mining activities in all the Districts of Uttar

Pradesh and particularly Saharanpur, till the grant of

Environmental Clearance as per the Ministry of

Environment and Forest’s Notification No. S.O. 1533,

dated 14.09.2006; including the 36 minor mineral leases

operating in the District of Saharanpur without the

required environment clearance.”

7.On behalf of the State, a counter affidavit was filed by Sri Amar

Nath, Under Secretary, Government of Uttar Pradesh, Industrial

Development Department, Geology and Mining Section. It is set out

therein that mining leases for excavation of minor minerals, exclusively

found in river-beds, have been granted in favour of persons, whose

names have been mentioned in Annexure-19 to the petition, under the

provisions of the Mines and Minerals (Development & Regulation) Act,

1957 (hereinafter referred to as the Act, 1957) read with the Uttar

Pradesh Minor Minerals (Concession) Rules, 1963 (hereinafter referred

to as the Rules, 1963), after obtaining ‘No Objection Certificate’ from the

concerned Divisional Forest Officer of the Forest Division. It is next

stated that Notification No. 1533 dated 14.9.2006, issued by the

Government of India, Ministry of Environment and Forests is not

applicable to minor minerals especially in the areas, which are situated on

the river-beds. It is stated that the petitioner, though, has filed the P.I.L.,

has not impleaded the parties likely to be affected and as such, the P.I.L.

as filed is not maintainable. Such a petition, as set out, lies at the instance

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of the third party only when it is shown that the affected persons are

unable to approach the Hon'ble Court. Reference is made to a judgment

in Jayant Achyut Sathe vs. Joseph Bain D'Souza and others dated

04.09.2008 (MANU/SC/3966/2008).

An objection was also raised to the Lucknow Bench hearing the

petition by setting out that the formal orders have been issued by the

District Officer, Saharanpur, which has been challenged by the petitioner.

This objection, in our opinion, has no merit and hence rejected at the

threshold. The counter affidavit further sets out that mining leases of

minor minerals for areas measuring above 5 hectares have been granted

or renewed without getting clearance of the Environmental Authority.

Generally, the minor minerals, which are exclusively found on the river-

bed surface, the areas are 5 hectares or above; and in respect of other

mineral minerals, the mining lease areas are below the limit of 5 hectares.

Mining leases of the river bed for minor minerals are being granted for

the last 5 decades and all the areas, which have been granted on mining

leases are not covered by the definition of new areas, as required vide

notification dated 14.9.2006 for obtaining prior clearance from the

Environmental Authority. The difference between 'minerals' and 'minor

minerals', it is contended, has been explained by the Supreme Court in a

number of cases. Reliance is placed on the judgement of the Supreme

Court in D.K. Trivedi and others vs. State of Gujarat, 1986 (Supp)

SCC 20.

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8. In respect of the second query of the Court about the

implementation of the procedure, as laid down in the notification dated

14.6.2006, it is submitted that it is only applicable to mining leases of

minerals, which are granted under the provisions of The Mineral

Concession Rules, 1960. Reliance has been placed on a judgment in

Cochin Company vs. Commissioner of Income Tax, Kerala,

(MANU/SC/0098/1967) wherein the Supreme Court observed that the

word 'new' is not defined in the Income Tax Act. The word 'new' means

'not existing before, now made, or brought into existence, for the first

time'. The expression 'new' must, therefore, be construed in this sense and

in a contra distinction and antithesis to the word ‘used’. It is submitted

that in view of the aforesaid, the State Government granted the mining

leases of minor minerals in those areas, where the mining operations

were going on traditionally since a long time. Hence, the EIA notification

dated 14.9.2006 is not applicable. The respondent-State has otherwise

contested the contentions as raised on behalf of the petitioner and has

relied upon various authorities.

9.On behalf of the Union of India, a counter affidavit was filed by

Ritu Raj Singh, Deputy Conservator of Forest, Regional Office of the

Ministry of Environment & Forests, Government of India, New Delhi

located at Lucknow. Dealing with the EIA Notification of 2006, it is

submitted that the Notification is applicable since 14.9.2006, which

requires that prior environmental clearance be obtained under the

provisions thereof as per the procedure prescribed for mining of minerals

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in respect of all new projects or activities irrespective of the nature of

minerals i.e., major or minor, with lease area of 5 hectare and above. The

Notification, 2006 categorized the mining projects in two categories

namely, Category 'A' and Category 'B' based on the lease area. It is

further set out that mining of minor minerals did not require

environmental clearance prior to 14.9.2006 and that Ministry of

Environment & Forests has issued a clarificatory Circular dated

02.07.2007 clarifying the applicability of EIA Notification, 2006 in

respect of mines operating prior to coming into force of the EIA

Notification. As such, the State Government can execute the mining

lease and only thereafter can any mining operations be carried out.

Continuation of mining without requisite environmental clearance as is

mandatory under the Notification, 2006 would amount to violation of

Environment Act, 1986.

The Ministry of Environment and Forests has prescribed Terms of

Reference (TORs) to 31 projects of Saharanpur District and one project

from Muzaffarnagar District of Uttar Pradesh relating to river bed sand

mining, as per the provisions of the EIA Notification, 2006. The

permission to operate the mine merely on the basis of TORs and / or

mine lease cannot be automatic unless the proposal has been appraised as

per the procedure prescribed under the Notification, 2006 and granted

environmental clearance. It is also set out that Ministry of Environment

and Forests has not received any application of river bed sand mining for

environmental clearance from the State of Uttar Pradesh for which TORs

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were prescribed. Thus, insofar as the Union of India is concerned, they

are clear that sand mining, though minor mineral, requires environmental

clearance under the Notification of 2006.

10.An application for intervention had also been made on behalf of

one Shyam Bahadur Sakhya of district Badaun, who also appears to have

applied for lease deed for an area namely, Survey No. 2 to 28 measuring

15.28 hectare situate in village Gangwas alias Jafrabad, Tehsil and

District Bulandshahr, which was opened for mining by the State

Government and thereafter the same has been leased out to others and

once again when the area became available for re-grant, the applicant

applied for the aforesaid area and the same was leased out in favour of

the applicant for a period of 3 years between 1.8.2008 upto 31.7.2011.

The intervener has been allowed to intervene and address the Court.

11.From the pleadings in this petition, the issues which arise for

consideration are: (i) Whether the notification of 14.9.2006 as amended by

notification dated 1

st

December, 2009 applies to minor minerals; (ii)

Whether it applies to renewal of leases in respect of minor minerals which

leases have been granted earlier to the issuance of the notification dated

14.9.2006.

12.At the outset, we may mention that strong reliance has been placed

on a judgment of the High Court of Madhya Pradesh, principal seat at

Jabalpur, in the case of Ajay Dubey vs. State of M.P. & others, Writ

Petition No. 1574 of 2008, and other petition decided on 29.9.2010. In

that case, in a Public Interest Petition, relief was sought to stop the

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operations of all such mines which were being run notwithstanding the

fact that closure orders had already been issued by the concerned

authorities and for constitution of a High Level Committee to enquire

into the matter pertaining to grant of permission for such mining

operations. Matters pertained to minor minerals. The learned Bench of

the Madhya Pradesh High Court noted Rule 49 of the Madhya Pradesh

Minor Mineral Rules, 1996, which contains a non-obstante clause and

provides that provisions of Rules 44 to 48 shall not apply to sand and

‘bajri’ quarrying. The question before the Court was whether, in those

circumstances, the notification dated 14.9.2006 issued by the Central

Government under Rule 5 (3) of Environmental Protection Rules was

applicable in respect of quarrying operation of sand and ‘bajri. After

considering the provisions of the MMRD Act and other laws, the Court

was pleased to hold that considering Section 15 of the MMRD Act, Rule

49 of the 1996 Rules is a validly enacted provision of law. Reference was

made to Rule 44 of the 1996 Rules which provides for protection of

environment and control of pollution while conducting quarrying

operation, as also Rule 46, which provides for precautions against

damage to public places, air pollution and noise pollution and Rule 49,

which provides for relaxation from protection of environment.

The Court noted that 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. The Court then proceeded to hold that

by sub-rule (1) of Rule 49 of the 1996 Rules, the provisions of Air

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(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. Considering Section 24

of the Environment Act, the Court was pleased to hold that non-obstante

clause contained in Section 24(1) of the Environment (Protection) Act,

1986 does not apply to Rule 49 of the 1996 Rules and, therefore, the

contention raised on behalf of the counsel for the petitioners that

notification dated 14.9.2006 issued under Rule 5(3) of Environment

(Protection) Rules, 1986 will prevail over Rule 49 (1) of the 1996 Rules

in view of Section 24 of the Environment (Protection) Act, cannot be

accepted.

The Court then observed that the Environment (Protection) Act,

1986, namely, Act No. 29 of 1986 came into force w.e.f. 19.11.1986

whereas Section 15(1A) of the MMRD Act was enacted vide Act No. 37

of 1986 subsequent to Act No. 29 of 1986 and came into force on

10.2.1987. In these circumstances, the Court was pleased to hold that the

legislative intent or mandate is that the rule framed by the State under

Section 15(1A) of MMRD Act should prevail over all previous

enactments on the subject and for this reason, was pleased to dismiss the

petition.

Learned counsel for the respondents informs us that the Special

Leave Petition against the said judgment has been dismissed.

13.Insofar as this judgment is concerned, we may point out that in the

State of Uttar Pradesh, there is no similar rule like Rule 49 as in force in

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the State of Madhya Pradesh. Secondly, the Environment (Protection)

Act, to that extent, is a special Act dealing with the protection of

environment and ecology. The MMRD Act, on the other hand, is in

respect of development and regulation of minerals. Though attention of

the Court was invited to the judgment in M.C. Mehta (supra), yet it did

not consider the paras 52 and 53 which directly dealt with the issue of

applicability of the provisions of the Environment Act of which Section

24 reads as under:-

“24. Effect of other laws.- (1) Subject to the provisions

of sub-section (2), the provisions of this Act and the rules

or orders made therein shall have effect notwithstanding

anything inconsistent therewith contained in any

enactment other than this Act.

(2)Where any act or omission constitutes an offence

punishable under this Act and also under any other Act

then the offender found guilty of such offence shall be

liable to be punished under the other Act and not under

this Act.”

The State Government acts as delegate under the MMRD Act. The

provision of the Rules are to be read into the Act, but yet it is subordinate

legislation. Both are Central Legislations. In our opinion, however, these

are two special legislations, which may both be general legislations in

their respective fields. Section 24 would have to be given its due

meaning. It will have overriding effect. If under the Environment Act,

provisions have been made for environmental clearance, it will not be

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open to a delegate under the provisions of MMRD Act to exclude the

applicability of such provision by making subordinate legislation to the

same or similar effects. The provisions made under the Environment Act

and the rules framed thereunder will have to prevail over the provisions

of the MMRD Act.

14.On the other hand in Vijay Bansal and others vs. State of

Haryana and others, CWP No. 20134 of 2004, decided on May, 15,

2009, the petitioner had approached the Punjab and Haryana High Court

at Chandigarh in the matter of indiscriminate and callous mining

operations in the lower Shivalik hills in District Panchkula. In the various

counter affidavit filed by the State, it was set out that all the minor

minerals vest with the State Government, who is empowered to make

rules for regulating the quarries or other concessions in respect of minor

minerals and for the purposes connected therewith. The Environment

Department has filed an affidavit setting out that mining contractors are

required to get environmental clearance from competent authority prior

to the commencement of mining activities. Reference was to notification

dated 14.9.2006. The petitioner therein contended that notification has no

applicability in the case of minor minerals. Issue no. 3 was whether the

mining activities fall within the ambit of notification dated 14.9.2006.

The learned Division Bench held that every new contract, lease or

licence of a mining area or renewal thereof shall amount to the start of a

new project or activity, attracting the regulatory measures enumerated by

the notification dated 14.9.2006. Issue no. 4 was whether these mining

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activities should be banned or allowed to continue till the prior

environmental clearance is granted by the Central Government in the

Ministry of Environment and Forests. The Court also observed that if the

total area where the mining activities are permitted or which can be

mined in future, is more than 50 hectares, the mandatory requirement of

prior environmental clearance cannot be defeated through artificial means

like division of the mining area into different quarries or zones of smaller

sizes. The Court further held in Issue no. 5, whether the prior

environmental clearance is to be obtained by the State of Haryana or by

the contractor/lessee? The Court held that that apart, whenever the State

ventures into commercial activities like the conditional sale of its

monopolistic proprietary rights over the minerals to improve its fiscal

conditions, it shall have to abide by the consequential legal obligations,

rather with stricter parameters. The Court, then proceeded to hold that the

State Government shall itself incur the entire expenditure in the discharge

of its afore-stated legal duties but it shall be entitled to apportion the said

expenditure amongst the successful bidders. Thus, the Punjab and

Haryana High Court has taken a view that prior environmental clearance

is required under notification dated 14.9.2006.

15.In T.N. Godavarman Thirumulpad vs. Union of India (UOI)

and others (MANU/SC/1726/2009), the Supreme Court was dealing

with the issue of mining in the Aravalli Hill Range. The Court was

informed that the mines were for excavating major minerals but what was

actually being done by the mining operators was extracting minor

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minerals from the leased area. The question before the Court was,

whether it would be feasible or in the larger interest to allow those

mining operators to carry out any mining activities on the basis of the

earlier licenses? After considering various contentions, the Court was

pleased to observe in paragraph 6, which reads as under:-

“6. Before any mining operations commence, the

leaseholders shall obtain all statutory clearances

including environmental clearance in terms of MOEF

Notification dated 14.9.2006 and also the approval under

the Forest Conservation Act.”

Thus, though the issue was directly in question, the Hon’ble

Supreme Court even in case of minor minerals, has directed

environmental clearance in terms of Notification dated 14.9.2006.

16.The notification dated 14.9.2006 has been issued in exercise of

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 27

th

January,

1994, except in respect of things done or omitted to be done before such

supersession. The Notification further 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

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Government or, as the case may be, by the State Level Environment

Impact Assessment Authority.

In terms of paragraph 2 of the notification, the projects or

activities, which were required prior environmental clearance, have been

categorized in group ‘A’ and ‘B’.

Insofar as mines are concerned in respect of area less than 5

hectares and more than 50 hectares, has been categorized in ‘B’. In other

words, environmental clearance at the State Level by the State

Environment Impact Assessment Authority (SEIAA). That notification

has been amended by notification dated 1.12.2009.

17.There was some doubt whether the notification would apply to

'renewal'. It appears that the federation of Mining Association of

Rajasthan and others had raised concerned regarding applicability of EIA

Notification dated 14.9.2006 to mining leases of 5 hectares of major

minerals and mining leases of minor minerals which have been in

operation before the said notification came into force. It was clarified that

mining projects which did not require environmental clearance under

EIA notification 1994, would continue to operate without obtaining

environmental clearance till the mining lease falls due for renewal, if

there is no increase in lease area and or there is no enhancement of

products.

18.The matter of renewal under the Forest (Conservation) Act, had

come up for consideration in the case of Ambica Quarry Words etc. vs.

State of Gujarat and others, AIR 1987 Supreme Court 1073. The issue

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before the Court was whether the leases for quarrying purposes granted

before coming into operation of the Act, would be affected. Renewals

were sought thereof. Reference was made to Gujarat Minor Mineral

Rules, 1966, which provides for renewals. The said Rule was considered

viz-a-viz the Rajasthan Minor and Mineral Concession Rules, 1958. The

construction there was of the word ‘may’. The Court observed that

‘whether the power is one coupled with a duty must depend upon the facts

and circumstances of each case and must be so decided by the Courts in

each case. Lord Blackburn observed in the said decision that enabling

words were always compulsory where the words were to effectuate a legal

right’.

Coming to issue of renewal, the Court observed that the rules dealt

with a situation prior to the coming into operation of 1980 Act and

considering the concept that power coupled with the duty enjoined upon

the respondents to renew the lease stood eroded by the mandate of the

legislation as manifest in 1980 Act in the facts and circumstances of these

cases. The Court then observed that ‘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.’

The Court further observed that all interpretation must subserve

and help implementation of the intention of the Act and prior permission

was required before the lease was renewed.

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19.We may now consider the judgment in M.C. Mehta Vs. Union of

India & Ors., AIR 2004 S.C. 4016. The Supreme Court was considering

the issue of mining activity in an area upto 5 kilometers from the Delhi

Haryana border on the Haryana side of the ridge and also in the Aravalli

hills and whether it causes environment degradation and what directions

are required. Under consideration was the notification dated 27.1.1994,

the earlier notification. The contention sought to be urged was that a

holder of a mining lease does not require clearance under the

Environmental Laws. To answer the issue, we may reproduce para 52 of

the judgement, which reads as under:-

“52. The grant of permission for mining and approving

mining plan and the scheme by the Ministry of Mines,

Government of India by itself does not mean that mining

operation can commence. It cannot be accepted that by

approving Mining Plan and Scheme by Ministry of

Mines, Central Government is deemed to have approved

mining and it can commence forthwith on such approval.

Section 13 of the MMRD Act and the Rules made in

exercise of powers under the said section, deal, inter alia,

with the aspect of grant of mining of lease and not

commencement of mining operations. Rules made under

Section 18, however, deal with commencement of mining

operations and steps required to be taken for protection of

environment by preventing or controlling any pollution

which may be caused by mining operation. A mining

lease holder is also required to comply with other

statutory provisions such as Environment (Protection)

Act, 1986, Air (Prevention and Control of Pollution) Act,

1981, The Water (Prevention and Control of Pollution)

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Act, 1974, Forest (Conservation) Act, 1980. Mere

approval of the mining plan by Government of India,

Ministry of Mines would not absolve the lease holder

from complying with the other provisions.”

Thus, it would be clear that the holder of a mining lease by merely

holding a lease cannot commence operations. He has also to comply with

the other salutatory provisions including the Environmental Laws.

Paragraph 53 of the said judgment is also relevant, which reads as under:-

“53. Rule 31 to 41 contained in Chapter V of the Mineral

Conservation and Development Rules, 1988 framed

under Section 18 of MMRD Act deal with the measures

required to be taken by the lessee for the protection of

environment from any adverse effect of mining or

irreversible consequences thereof. These Rules, inter alia,

provide that every holder of a mining lease shall take all

possible precautions for the protection of environment

and control of pollution while conducting mining

operations in the area, shall, wherever top soil exists and

is to be excavated for mining operations, remove it

separately and utilize for restoration or rehabilitation of

the land which is no longer required for mining

operations. The holder is also required to take steps so

that the overburden, waste rock, rejects and fines

generated during prospecting and mining operations or

tailings, slims and fines produced during sizing salting

and benefication or metallurgical operations shall be

stored in separate dumps which shall be properly secured

to prevent escape of material therefrom in harmful

quantities which may cause degradation of environment.

Wherever possible, the waste rock, overburden etc. shall

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be back-filled into the mines excavation with a view to

restoring the land for its original use as far as possible

and wherever it is not feasible during mining operation,

the waste dumps shall be suitably terraced and stabilized

through vegetation or otherwise. It is also required that

the phased restoration, reclamation and rehabilitation of

lands affected by mining operation shall be undertaken

which work shall be completed before the conclusion of

mining operations and the abandonment of mine. Air

pollution due to fines, dust and smoke or gaseous

emissions during mining operations and related activities

shall be controlled and kept within ‘permissible limits’

specified under various environmental laws of the

country including the Air (Prevention and Control of

Pollution) Act, 1981 and the Environment (Protection)

Act, 1986 by the holder of mining lease. Further, noise

arising out of such operations shall be abated or

controlled by the lessee at the source so as to keep it

within the permissible limit. The mining operations shall

be carried out in such a manner so as to cause least

damage to the flora of the area and nearby areas. Every

holder of mining lease shall take immediate measures for

planting in the same area or any other area as selected by

the authorized officer and not less than twice the number

of threes destroyed by reason of any mining operation

and look after them during the subsistence of the

licence/lease and restore, to the extent possible, other

flora destroyed by mining operations.”

The Court then in para 73 of the judgment addressed itself with the

issue that the notification is prospective, but whether it would be

applicable when the aspect of renewal comes up for consideration after

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the issue of notification. The Court held that the grant of renewal is a

fresh grant and must be consistent with law and consequently held that

the leases, which come up for renewal after the notification dated

27.1.1994 would also have to have environmental clearance.

20.We may also refer to some other material on the effect of sand

mining. An inspection report on mining of minor minerals in areas of

district Saharanpur in the State of Uttar Pradesh, was carried out pursuant

to the directions by this Court dated 6.3.2009 in Writ Petition No. 1580

(M/B) of 2009 (Noor Mohammad vs. State of U.P. and others). The

following are the conclusions and recommendations of the said report:-

“1.The locations mentioned in areas fall in parts of

Yamuna river basin.

2.Mining activities in all the working areas as

indicated to the extent given report have been carried out

in irregular, uneven, sporadic pits in unsystematic

manner.

3.The mining activity was not going on within the

lease area during the inspection in most of the cases but it

is observed outside the granted areas. The use of JVC etc.

are not seen for mining but the JVC Machines are

observed at the crushing sites. Mining is carried out by

manual means using simple hand tools like spades,

pickaxe, pans and screens.

4.Mining activities in the gaps between the two

consecutive leases and beyond their respective legally

granted mining lease areas have been observed in all the

areas covered under inspection on 24

th

& 25

th

November

2009.

-22-

5.Irregular, uneven and unsystematic mining

operations which are spread over the large area in

number of pits of varied dimensions may cause the

damage to the river course and near by agricultural land.

6.In all the inspected lease areas boundary pillars

have not been observed. The permanent boundary pillars

need to be erected and maintained as per the demarcation

of leased areas done by the State Govt.

7.Mining leases should be granted over the

continuous stretch in blocks to one particular lessee so

that unsystematic mining activities in the form of several

small size, sporadic pits will be ruled out.

8.Mining should be carried out from one and in

systematic manner with depth restriction upto 3 meters.

Mining work should be strictly kept at safer distance

from the riverbank. Mining leases where the river course

has not sufficient width should not be granted. Mined out

areas after the completion of the mining activities should

be restored back to its original shape and use. Wherever

river banks have already been damaged due to mining

activities should be identified and corrective measures to

minimize further damage may be taken by constructing

of wire created retaining walls.

9.Deployment of heavy machinery for extraction,

loading and transportation of mineral should not be

allowed without the prior permission of DGMS/DM.

10.Restoration, reclamation or rehabilitation of the

mined out area may be carried out.

11.The condition of the village approach roads

indicated over loading of mineral in vehicles which ply

over the kutcha road is also causing air pollutions.

-23-

12.The mining in the private land particularly

agricultural level should only be allowed after obtaining

the NOC from the respective land owners.

13.There is need for revision of cadastral (Khasra)

maps which are very old hence the land use and

topography of area has changed.

14.Modern scientific tools should be used for

demarcation of lease area.

15.There is need for granting the lease as per Survey

of India map and leased area should be demarcated by

coordinates (latitude and longitude).

16.In order to ensure systematic mining by forming

regular faces, the lessee may be allowed to win all type

of material including soil/sand.

17.Assessment of quantity of mineral proposed to be

dispatched from leased area should be done scientifically

and accordingly the lessee may be given MM-11.

18.The manpower needs to be enhanced for effective

control of illegal mining.

19.There is possibility that illegal mining is being

done not only by the authorized lessee but also by

persons whom leases have not been granted. Therefore,

all the mineralized area needs to be kept under strict

surveillance by the concerned Executive authorities.

20.However, subletting of leases cannot be ruled out.

21.Involvement of local authorities at village level for

providing information to the district authorities regarding

illegal mining should be considered.

22.The mining leases of 5 hectares and more are

operating without obtaining environment clearance from

the MOEF. It is violation of Environment Act which calls

closure of these mines.

-24-

The inspection indicates violation of statutory

provisions before granting lease and during the mining

operation as observed by the committee.”

21.The Government of India, Ministry of Environment & Forests,

New Delhi has issued the report of the Group on Environmental Aspects

of Quarrying of Minor Minerals. This was in the context of report

regarding adverse impacts on lakes, river beds and groundwater due to

quarrying / mining of minerals. The Group considered the various aspects

as also the definition of minor minerals and submitted its report.

Based upon the Report and Recommendations, the Ministry of

State (Independent Charge) Environment & Forests, Government of India

addressed through letter dated 1

st

June 2010 to all the Chief Ministers

setting out some key recommendations of the group, requesting that these

recommendations be incorporated in the Mineral Concession Rules for

mining of minor minerals, which reads as under:-

· Minimum size of mine lease should be 5 ha.

· Minimum period of mine lease should be 5 years.

· A cluster approach to mines should be taken in

case of smaller mine leases operating currently.

· Mine plans should be made mandatory for minor

minerals as well.

· A separate corpus should be created for

reclamation and rehabilitation of mined out areas.

· Hydro-geological reports should be prepared for

mining proposed below groundwater table.

· For river bed mining, leases should be granted

stretch wise, depth may be restricted to 3m

-25-

/ water level, whichever is less, and safety zones

should be worked out.

· The present classification of minerals into major

and minor categories should be re-examined by the

Ministry of Mines in consultation with the States.

I would request you to examine the report and issue

necessary instructions for incorporating the

recommendations made in the report in the Mineral

Concession Rules for mining of minor minerals, framed

by your Government under Section 15 of the Mines and

Minerals (Development and Regulation) Act, 1957.”

22.Parliament enacted The Mines Act, 1952 with an object to regulate

the mining operations of natural resources. “Minerals” has been defined

under Section 2 (jj) to mean all substances which can be obtained from

the earth by mining, digging, drilling, dredging, hydraulicing, quarrying

or by any other operation and includes mineral oils (which in turn

include natural gas and petroleum;). It will thus be clear that all

substances, which can be obtained from the earth by various process of

mining, digging etc. are defined as “Minerals”. Section 3 then sets out

that Sections 7, 8, 9, 40, 45 and 46 shall not apply to any mine engaged

of various substances as set out therein. Sections 7, 8 and 9 are excluded,

which pertain to inspections by the authorities as set out therein. Section

40 pertains to employment of persons below eighteen years of age.

Section 45 pertains to prohibition of the presence of persons below

-26-

eighteen years of age in a mine and Section 46 pertains to employment of

women in a mine. Apart from that, all the other provisions are applicable.

Power has been conferred in the Central Government to make

regulations and rules. Rules have been framed, which are known as the

Mines Rules, 1955 (hereinafter referred to as the Mines Rules). The said

Rules are not necessary for consideration of the controversy, which is the

subject matter of the present petition.

23.The Mines and Minerals (Regulation & Development) Act, 1957

(hereinafter referred to as the ‘MMRD Act’) is the other legislation

which we have to consider. Entry 54 of the List I-Union List speaks of

regulation of mines and mineral development to the extent to which such

regulation and development under the control of Union is declared by

Parliament by law to be expedient in the public interest. There is another

entry being Entry 23 of List II, which provides for regulation of mines

and mineral development subject to the provisions of List I with respect

to regulation and development under the control of the Union. Thus, this

List confers powers to the State Legislature to legislate as regards

regulating of mines and mineral development, subject to legislation made

by the Parliament under Entry 54, List I. Parliament, under List I Entry

54 has enacted the MMRD Act.

24.Under Section 3 (a) of MMRD Act, minerals have been defined to

include all minerals except mineral oils. Mining lease has been defined

under Section 3 (c) to mean a lease granted for the purpose of

undertaking mining operations, and includes a sub-lease granted for such

-27-

purpose and mining operations have been defined under Section 3 (d) to

mean any operations undertaken for the purpose of winning any mineral.

Next relevant provision is Section 3 (e), which defines Minor

Minerals, reads as under:-

“(e) “minor minerals” means building stones, gravel,

ordinary clay, ordinary sand other than sand used for

prescribed purposes, and any other mineral which the

Central Government may, by notification in the Official

Gazette, declare to be a minor mineral;”

Section 18 then confers a duty to the Central Government to take

steps for the conservation and systematic development of minerals in

India and for the protection of environment by preventing or controlling

any pollution which may be caused by prospecting or mining operations

and for that purpose to make rules.

25.Under the MMRD Act, Rules have been framed known as the

Mineral Concession Rules, 1960. Rule 22 sets out that an application for

the grant of a mining lease in respect of land in which the minerals vest

in the Government shall be made to the State Government in Form I.

Rules then provide for various procedural steps. Rule 24A provides

for renewal of mining lease.

26.It may be pointed out that minerals under the MMRD Act have

been categorized into various groups. The application for a mining lease

and or renewal has to be made to the State Government then after

following certain procedural steps, the decision taken by the State

Government for grant of mining lease of the area of mining lease has to

-28-

be forwarded to the Central Government. Rule 27 sets out the conditions

which every mining lease shall be subject to.

27.Under the MMRD Act, Rules have also been framed, namely, the

Mineral Conservation and Development Rules, 1988 (hereinafter referred

to as the Conservation Rules, 1988). Chapter-V deals with the

Environment. Rule 31 sets out that every holder of prospecting licence or

a mining lease shall take all possible precautions for the protection of

environment and control of pollution while conducting prospecting,

mining, beneficiation or metallurgical operations in the area.

28.With this background is sand a minor mineral? In Som Datt

Builders Ltd. vs. Union of India (UOI) and others, (2010) 1 SCC 311,

the issue before the Supreme Court was whether “ordinary earth” used

for filling or levelling purposes in the construction of embankments, etc.

is a “minor mineral”. After noting the definition of Mineral most

specifically Section 3 (e) of the MMRD Act, the Supreme Court was

pleased to consider various judicial pronouncements as to what is a

mineral. Reliance was placed on an earlier judgment in the case of

Bhagwan Das vs. State of U.P. and others, (1976) 3 SCC, 784, where

the issue was whether the brick-clay is a minor mineral within the

meaning of MMRD Act. We may quote the following passage from the

judgment:-

“...In the context of the Mines and Minerals (Regulation

& Development) Act, we have no doubt that the word

'mineral' is of sufficient amplitude to include, 'brick-

earth'. As already observed by us, if the expression

-29-

'minor mineral' as defined in the Act includes 'ordinary

clay' and 'ordinary sand', there is no earthly reason why

'brick-earth' should not be held to be 'any other mineral'

which may be declared as a 'minor mineral'. We do not

think it necessary to pursue the matter further except to

say that this was the view taken in Laddu Mal v. State of

Bihar, Amar Singh Modilal v. State of Haryana and

Sharma & Co. v. State of U.P. We do not agree with the

view of the Calcutta High Court in State of West Bengal

v. Jagdamba Prasad, that because nobody speaks of

'ordinary earth' as a mineral it is not a minor mineral as

defined in the Mines and Minerals (Regulation &

Development) Act.”

The Court then held that 'ordinary earth' was a 'minor mineral'.

Reference was also made to Black's Law Dictionary (Eighth Edition),

which reads as under:-

“mineral, n. 1. Any natural inorganic matter that has a

definite chemical composition and specific physical

properties that give it value “most minerals are

crystalline solids”. [Cases: Mines and Minerals 48. C.J.S.

Mines and Minerals “4, 140-142.] 2. A subsurface

material that is explored for, mined, and exploited for its

useful properties and commercial value. 3. Any natural

material that is defined as a mineral by statute or

caselaw.”

It will, thus, be clear that even 'ordinary earth' for the purposes of

the MMRD Act is a 'mineral'.

-30-

29.In D.K. Trivedi & Sons and others vs. State of Gujarat and

others, 1986 (Supp) Supreme Court Cases, 20, the expression 'mineral'

had come up for consideration. We may gainfully reproduce the

following observation from paragraph 29 of the judgment, which reads as

under:-

“29. The term “minerals” is defined by clause (a) of

Section 3 as including “all minerals except mineral oils”.

This definition would thus include minerals which are

minor minerals as also minerals other than minor

minerals. The term “minor minerals” is, however,

separately defined by clause (e) because the power to

make rules in respect thereof is vested by Section 15(1)

in the State Governments while the power to make rules

with respect to minerals other than minor minerals is

vested in the Central Government. The word “minerals”

in different sections of the 1957 Act is used with the

meaning assigned to it by clause (a) of Section 3, that is,

as denoting “all minerals except mineral oils”, unless the

contest requires otherwise, and where the Act wishes to

make a distinction between minor minerals and minerals

other than minor minerals, it does so expressly.”

We may also refer to the following observation from paragraph 33

of the judgment, which reads as under:-

“33. ...The particular matters in respect of which the

Central Government can make rules under sub-section

(2) of Section 13 are, therefore, also matters with respect

to which under sub-section (1) of Section 15 the State

Governments can make rules for “regulating the grant of

-31-

quarry leases, mining leases or other mineral concessions

in respect of minor minerals and for purposes connected

therewith”. When Section 14 directs that “The provisions

of Sections 4 to 13 (inclusive) shall not apply to quarry

leases, mining leases or other mineral concessions in

respect of minor minerals”, what is intended is that the

matters contained in those sections, so far as they

concern minor minerals, will not be controlled by the

Central Government but by the concerned State

Government by exercising its rule-making power as a

delegate of the Central Government. Sections 4 to 12

form a group of sections under the heading “General

restrictions on undertaking prospecting and mining

operations”. The exclusion of the application of these

sections to minor minerals means that these restrictions

will not apply to minor minerals but that it is left to the

State Governments to prescribe such restrictions as they

think fit by rules made under Section 15(1). The reason

for treating minor minerals differently from minerals

other than minor minerals is obvious. As seen from the

definition of minor minerals given in clause (e) of

Section 3, they are minerals which are mostly used in

local areas and for local purposes while minerals other

than minor minerals are those which are necessary for

industrial development on a national scale and for the

economy of the country. That is why matters relating to

minor minerals have been left by Parliament to the State

Governments while reserving matters relating to minerals

other than minor minerals to the Central Government.”

30.In M/s S.S. & Company vs. Orissa Mining Corporation

Limited, AIR 2009 Supreme Court, 461, the issue was in the matter of

-32-

notice inviting tenders (NIT). The issue was pertaining to experience

required as an eligibility criteria in the operation of mines. In that

context, the Court considering a contention that distinction between

minor and major minerals was illusory and hence, the exclusion of any

past experience of working any minor minerals was quite unreasonable

and arbitrary and it had no relation to the object that was claimed to be

achieved. After noting the contentions and the reply on behalf of the

respondents, a contention was raised that there is difference between

minor and major minerals placing reliance of a judgment in the case of

D.K. Trivedi (supra) where it was observed that the term “minor

minerals” came to be defined in a statute for the first time by clause (e) of

Section 3 of the 1957 Act. Then considering the definition of minor

minerals, the Court observed that they are minerals which are mostly

used in local areas and for local purposes while minerals other than minor

minerals are those which are necessary for industrial development on a

national scale and for the economy of the country and that is why matters

relating to minor minerals have been left by Parliament to the State

Governments while reserving matters relating to minerals other than

minor minerals to the Central Government.

31.From this discussion, it would be clear that 'sand / silica' is a minor

mineral, both within the meaning of the Mines Act and the MMRD Act.

32.The need for environmental protection and sustainable

development is now reflected both in our constitutional philosophy as

-33-

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 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 Vs.

State of U.P. (supra) 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 acknowledgment 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

-34-

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.”

34.Learned counsel Sri Singh appearing for the respondents, also

brought to our attention the judgment in Cochin Co. vs. Commissioner

of Income Tax, (1968) 67 ITR 199 for the purpose of making a

distinction between the new and renewal. In the matter of pertaining to

depreciation, the issue was whether the assessee was entitled to

depreciation on certain machines. It is in that context that the expression

“new” was considered. On facts, the machinery purchased was to

recondition “Jackstone Junior Frosters Mark II” and it was sought to be

contended that they are new machines. In our opinion, it is not necessary

for us to consider that judgement considering that was considered in the

-35-

context of the I.T. Act. Considering the judgment in M.C. Mehta (supra),

we need not address ourselves to that issue.

35.Having considered the various aspects, the notification of

14.9.2006 would be applicable insofar as mining of sand is concerned.

Considering the judgment in Som Datt Builders Ltd. (supra), we are

clearly of the opinion that both under the provisions of the Mines Act and

MMRD Act, silica/sand are ‘minerals’ for which purpose, a mining lease

would be required.

36.Consequent thereupon, the next question would be whether the

notification is applicable to a renewal of a mining lease for minor

mineral. We have already referred to the judgment in M.C. Mehta

(supra) and the order dated 8.10.2009 in T.N. Godavarman

Thirumulpad (supra), which sets out that apart from the necessary

permissions under the Mines / MMRD Act, the provisions of the

Environment (Protection) Act, 1986 and other legislations setting out

there under is required. Once that be the case, the notification issued by

the Central Government in exercise of its power under Section 3 of the

Environment Act and other provisions, the notification of 14.9.2006

would also be applicable to mining leases in respect of sand / silica. The

settled law is that a grant of renewal is a fresh grant and must be

consistent with law. [See M.C. Mehta (supra), para 76]. When there is a

renewal, in fact, what is being done is to grant a fresh mining lease in

respect of the same subject matter to be give to the same person, who had

-36-

earlier held the lease. In Ambica Quarry Works (supra), and M.C.

Mehta (supra), which we have earlier referred, leaves no manner of

doubt that the notification will not apply only if the lease is subsisting at

the time the notification of 14.9.2006 was issued. If subsequent to the

notification a fresh lease or a lease is renewed, then in the matter of

renewal also, the notification would apply.

37.In M. I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu and others,

(1999) 6 S.C.C. 464, the Supreme Court was considering the applicability

of the public trust doctrine. We may gainfully reproduce the following

observations from paragraph 50 and 51, which reads as under:-

“...When the true nature of the park, as it existed,

is destroyed it would be violative of the doctrine of

public trust as expounded by this Court in Span Resort

case. Public trust doctrine is part of Indian law. In that

case the respondent who had constructed a motel located

at the bank of River Beas interfered with the natural flow

of the river. This Court said (at SCC p. 413, para 35) that

the issue presented in that case illustrated.

“the classic struggle between those members of the

public who would preserve our rivers, forests, parks

and open lands in their pristine purity and those

charged with administrative responsibilities who,

under the pressures of the changing needs of an

increasingly complex society, find it necessary to

encroach to some extent upon open lands heretofore

considered in violate to change”.

-37-

51. In the treatise Environmental Law and Policy; Nature,

Law, and Society by Plater Abrams Goldfarb (American

Casebook Series, 1992) under the Chapter on

Fundamental Environmental Rights, in Section 1 (The

Modern Rediscovery of the Public Trust Doctrine) it has

been noticed that “long ago there developed in the law of

the Roman Empire a legal theory known as the 'doctrine

of the public trust' ”. In America public trust doctrine was

applied to public properties, such as shore lands and

parks. As to how that doctrine works it was stated:

“The scattered evidence, taken together, suggests that

the idea of a public trusteeship rests upon three related

principles. First, that certain interests 'like the air and

the sea' have such importance to the citizenry as a

whole that it would be unwise to make them the

subject of private ownership. Second, that they

partake so much of the bounty of nature, rather than of

individual enterprise, that they should be made freely

available to the entire citizenry without regard to

economic status. And, finally, that it is the principal

purpose of a Government to promote the interests of

the general public rather than to redistribute public

goods from broad public uses to restricted private

benefit...”

With reference to a decision in Illinois Central Railroad

Co. v. Illinois it was stated that

“the Court articulated in that case the principle that

has become the central substantive thought in public

trust litigation. When a State holds a resource which is

available for the free use of the general public, a court

will look with considerable scepticism upon any

-38-

governmental conduct which is calculated either to

reallocate the resource to more restricted uses or to

subject public uses to the self-interest of private

parties”.

This public trust doctrine in our country, it would appear,

has grown from Article 21 of the Constitution.”

38.Thus, it flows that in America the public trust doctrine has been

applied to shore lands and parks. This doctrine has been accepted in our

country as flowing from Article 21 of the Constitution. It is in

furtherance of this public trust doctrine considering environmental and

ecological aspects that the Parliament enacted several legislations to

protect environment and ecology. Courts thus as protector of the

Constitution have enforced the public trust doctrine, which is a part of the

principle of sustainable development, which is also a part of the right to

life.

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 been carrying on the mining operations. The

petitioner states that the officers from the Directorate of Geology &

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

-39-

the mining operations in respect of his mining lease would be stayed and,

hence, the present petition.

The reliefs 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.”

40.In support of the first prayer clause, it is contended that Parliament

did not have the competence to make the law, namely, the Environment

(Protection) Act, 1986 (hereinafter referred to as the 'Environment Act'),

as it is the State Assembly, which has the competence to legislate in

respect of land and water under Entry 17 and Entry 18 of List-II of the

Seventh Schedule.

-40-

41.In support of the second prayer clause, it is contended that the

process operation of an industry can be restricted in an area, and in order

to restrict the same, an area has to be identified, and reasons have to be

assigned for imposing such restrictions. The word 'an area' cannot mean

the entire country, but 'an area within the Union of India'. The

notification dated 14.09.2006 does not indicate an area or areas on which

it is applicable and no reason for imposing restrictions has been assigned.

It appears that the Central Government has notified the entire country to

be covered under the notification dated 14.09.2006 and, as such, it

suffers from manifest illegality, as it presumes the entire country to be an

area and no reason has been assigned for presuming so, which is

mandatory in order to impose restrictions in respect of certain industries,

projects, operations processes etc. in an area. It is also contended that in

the impugned notification, the word 'mining project' has been mentioned,

whereas the lease granted to minor minerals cannot be said to be a

'project', as the mining lease of river beds is granted for a period of three

years and the word 'project' in the impugned Environment Impact

Assessment Notification is referable to 30 years' period. Further, the

impugned notification refers to new projects, whereas the word 'new'

relates to new areas, which cannot be said to be in respect of those areas

for which leases had already been granted or have been renewed. The

notification dated 14.09.2006 is applicable only to new projects or

activities or expansion or modernisation of existing projects or activities

listed in the Schedule to the notification.

-41-

42.It is next set out that the notification dated 14.09.2006 has been

amended vide amendment dated 01.12.2009, and a clarification has been

given for expansion and modernisation of existing projects, wherein it

has been specifically provided that the expansion and modernisation of

existing projects would only require clearance if there is change in

technology or process of manufacture and not otherwise. The petitioner's

project, it is submitted, is not a new project, as mining had started for the

first time prior to notification dated 14.09.2006. This aspect has been

dealt with earlier while discussing the issue of renewal of mining lease.

43.At this stage, it may also be pointed out that the petitioner has

contended that, after the Mines and Minerals (Regulation &

Development) Amendment Act, 1986, the Central Government, in

exercise of its power under Section 18 of the Mines and Minerals

(Regulation & Development) Act, 1957 (hereinafter referred to as the

'MMRD Act'), has framed the Mineral Conservation and Development

Rules, 1988 (hereinafter referred to as the 'Rules 1988'), in respect of all

minerals other than minor minerals.

44.Thus, the MMRD Act and the Rules made thereunder have also

provided for the protection of the environment and ecology. The relevant

provisions of Rules 1988 is reproduced as under:-

“Environment

31. Protection of environment:

Every holder of a prospecting licence or a mining

lease shall take all possible precautions for the

protection of environment and control of pollution

-42-

while conducting prospecting, mining, beneficiation

or metallurgical operations in the area.

32. Removal and utilisation of top soil:

(1) Every holder of a prospecting licence or a mining

lease shall, wherever top soil exists and is to be

excavated for prospecting or mining operations,

remove it separately.

(2) The top soil so removed shall be utilized for

restoration or rehabilitation of the land which is no

longer required for prospecting or mining operations

or for stabilising or landscaping the external dumps.

(3) Whenever the top soil cannot be utilized

concurrently, it shall be stored separately for future

use.

33. Storage of overburden, waste rock, etc.:

(1) Every holder of a prospecting licence or a mining

lease shall take steps so that the overburden, waste

rock, rejects and fines generated during prospecting

and mining operations or tailings, slimes and fines

produced during sizing, sorting and beneficiation or

metallurgical operations shall be stored in separate

dumps.

(2) The dumps shall be properly secured to prevent

escape of material therefrom in harmful quantities

which may cause degradation of environment and to

prevent causation of floods.

(3) The site for dumps, tailings or slimes shall be

selected as for as possible on impervious ground to

-43-

ensure minimum leaching effects due to

precipitations.

(4) Wherever possible, the waste rock, overburden etc.

shall be back-filled into the mine excavations with a

view to restoring the land to its original use as far as

possible.

(5) Wherever back-filling of waste rock in the area

excavated during mining operations is not feasible, the

waste dumps shall be suitably terraced and stablised

though vegetation or otherwise.

(6) The fines, rejects or tailings from mine,

beneficiation or metallurgical plants shall be deposited

and disposed in a specially prepared tailings disposal

area such that they are not allowed to flow away and

cause land degradation or damage to agricultural field,

pollution of surface water bodies and ground water or

cause floods.

34. Reclamation and rehabilitation of lands:

Every holder of prospecting licence or mining lease

shall undertake the phased restoration, reclamation

and rehabilitation of lands affected by prospecting or

mining operations and shall complete this work before

the conclusion of such operations and the

abandonment of prospect or mine.

35. Precaution against ground vibrations:

Whenever any damage to public buildings or

monuments is apprehended due to their proximity to

the mining lease area, scientific investigations shall be

carried out by the holder of mining lease so as to keep

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the ground vibrations caused by blasting operations

within safe limit.

36. Control of surface subsidence:

Stopping in underground mines shall be so carried out

as to keep surface subsidence under control.

37. Precaution against air pollution:

Air pollution due to fines, dust, smoke or gaseous

emissions during prospecting, mining, beneficiation or

metallurgical operations and related activities shall be

controlled and kept within ‘Permissible Limits’

specified under various environmental laws of the

country including the Air (Prevention and Control of

Pollution) Act, 1981 (14 of 1981) and the

Environment (Protection) Act, 1986 (29 of 1986) by

the holder of prospecting licence or a mining lease.

38. Discharge of toxic liquid:

Every holder of prospecting licence or a mining lease

shall take all possible precautions to prevent or reduce

the discharge of toxic and objectionable liquid

effluents from mine, workshop, beneficiation or

metallurgical plants., tailing ponds, into surface water

bodies, ground water aquifer and usable lands, to a

minimum. These effluents shall be suitably treated, if

required, to conform to the standards laid down in this

regard.

39. Precaution against noise :

Noise arising out of prospecting, mining, beneficiation

or metallurgical operations shall be abated or

controlled by the holder of prospecting licence or a

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mining lease at the source so as to keep it within the

permissible limit.

40. Permissible limits and standards:

The standards and permissible limits of all pollutants,

toxins and noise referred to in rules 37, 38 and 39

shall be those notified by the concerned authorities

under the provisions of the relevant statutes from time

to time.

41. Restoration of flora:

(1) Every holder of prospecting licence or a mining

lease shall carry out prospecting or mining operations,

as the case may be, in such a manner so as to cause

least damage to the flora of the area held under

prospecting licence or mining lease and the nearby

areas.

(2) Every holder of prospecting licence or a mining

lease shall

(a) take immediate measures for planting in the same

area or any other area selected by the Controller

General or the authorised officer not less than twice

the number of trees destroyed by reason of any

prospecting or mining operations;

(b) look after them during the subsistence of the

licence/lease after which these trees shall be handed

over to the State Forest Department or any other

authority as may be nominated by the Controller

General or the authorised officer and;

(c) restore to the extent possible, other flora destroyed

by prospecting or mining operations.

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45.The State Government, in its counter affidavit, has reiterated its

stand that the notification dated 14.09.2006 is applicable to mining of

minerals other than minor minerals and the minerals and minor minerals

have been defined in Section 2 of the MMRD Act. Reliance has been

placed on the judgment of the Madhya Pradesh High Court at Jabalpur, in

the case of Madhya Pradesh State Mining Corporation Ltd. (supra).

46.On behalf of the Union of India, a counter affidavit has been filed

by Dr. Amit Kumar Gupta, Deputy Director, in the Ministry of

Environment and Forest. In the said affidavit, it is set out that the primary

concern of the Ministry of Environment and Forest, is to implement the

policies and programmes relating to conservation of country's natural

resources, including lakes and rivers, its biodiversity, forest and wildlife,

ensuring the welfare of animals and prevention and abatement of

pollution. The notification 14.09.2066, it is set out, requires prior

environmental clearance in respect of all new projects or activities and

expansion and modernisation of existing projects or activities irrespective

of nature of minerals, i.e. major or minor, with lease area of 5 hectare and

above. The notification is uniformly applicable throughout the country

irrespective of the area. The Ministry, it is set out, issued a Circular on

02.07.2007 clarifying the position with regard to the mining of minor

minerals operating prior to 14.09.2006. Reference is made to an order of

the Supreme Court in the matter of M.C. Mehta Vs. Union of India &

Ors., AIR 2004 SC 4016, wherein it has been held that for renewal of

mining leases granted prior to notification, environmental clearance

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would be necessary. In view of the same, it is clear that for every grant of

mining lease and its subsequent renewal, environmental clearance would

be required and the procedure prescribed in the notification of 2006

would have to be followed. It is also set out that the MMRD Act and the

Environment Act are independent to each other. The notification of 2006

requires all mining projects covered under the provisions thereof to

obtain prior environmental clearance as per the procedure prescribed

thereunder. No relaxation is provided to minor minerals in this regard.

The notification applies to all mining projects, irrespective of nature of

mineral, i.e. major or minor including river bed sand mining. It is pointed

out that the High Court of Punjab and Haryana has upheld the

applicability of 2006 to river bed sand mining projects.

47.The challenges may be summed up as under:-

(i)Parliament had no competence to enact the

Environment (Protection) Act, 1986, as the land and

water fall under Entry 7 of List II of the Seventh

Schedule.

(ii)The word 'area' has to be given distinctive meaning

and must be an area within the Union of India and not the

entire geographical area of India.

(iii)The meaning of sand is not a project.

48.With that background, we may now consider the first contention,

i.e. the Parliament did not have the competence to enact the Environment

Act. The Environment Act starts with the following Preamble:-

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“An Act to provide for the protection and improvement

of environment and for matters connected there with.

Whereas decisions were taken at the United Nations

Conference on the Human Environment held at

Stockholm in June, 1972, in which India participated,

to take appropriate steps for the protection and

improvement of human environment;

And whereas it is considered necessary further to

implement the decisions aforesaid in so far as they

relate to the protection and improvement of

environment and the prevention of hazards to human

beings, other living creatures, plants and property;”

In the Statement of Objects and Reasons of the Environment Act,

it is set out that 'the world community's resolve to protect and enhance

the environmental quality found expression in the decisions taken at the

United Nations Conference on the Human Environment held in

Stockholm in June, 1972. The Government of India participated in the

Conference and strongly voiced the environmental concerns. While

several measures have been taken for environmental protection both

before and after the Conference, the need for a general legislation further

to implement the decisions of the Conference has become increasingly

evident. Although there are existing laws dealing directly or indirectly

with several environmental matters, it was necessary to have a general

legislation for environmental protection'. After setting out some other

aspects, it states that 'there is urgent need for the enactment of a general

legislation on environmental protection which, inter alia, should enable

co-ordination of activities of the various regulatory agencies, creation of

-49-

an authority or authorities with adequate powers for environmental

protection, regulation of discharge of environmental pollutants and

handling of hazardous substances, speedy response in the event of

accidents threatening environment and deterrent punishment to those

who endanger human environment, safety and health'.

49.Thus, the Preamble and the Statement of Objects and Reasons of

the Environment Act, indicate that the Act was enacted to give effect to

the Conference on the Human Environment held in Stockholm in June

1972, in which India was a party.

Article 253 of the Constitution of India sets out that,

notwithstanding anything in the foregoing provisions of Part XI of the

Constitution, the Parliament has power to make any law for the whole or

any part of the territory of India for implementing any treaty, agreement

or convention with any other country or countries or any decision made

at any international Conference, association or other body. Entry 13 of

List I of the Seventh Schedule, speaks about participation in international

conferences, associations and other bodies and implementation of

decisions made thereat. It would, thus, be clear that the Environment Act

is based on Entry 13 of List I of the Constitution of India. Once a

legislation is made under Entry 13 to implement any treaty, agreement or

convention, and considering that Article 253 of the Constitution starts

with a non-obstante clause which confers power on the Parliament to

make law for the whole or any part of the territory of India, the

arguments advanced on behalf of the petitioner that Parliament did not

-50-

have competence to enact the legislation, in our opinion, therefore, would

have to be rejected.

50.We may also refer to the Constitution (42

nd

Amendment) Act,

1976, whereby Part IVA was introduced in the Constitution under the

heading 'Fundamental Duties'. Clause (g) of Article 51A, reads as

under:-

“51A. It shall be the duty of every citizen of India -

(a) …. ….

(g) to protect and improve the natural environment

including forests, lakes, rivers and wild life, and to

have compassion for living creatures.”

The same Constitutional amendment, also introduced Article 48A

in Part IV of the Constitution, which reads as under:-

“48A. The State shall endeavour to protect and

improve the environment and to safeguard the forests

and wild life of the country.”

At this juncture, we may note that though various notifications

under the Environment Act have been challenged before the Hon'ble

Supreme Court and various High Courts, the competence of the

Parliament to enact the legislation has never been doubted considering

Article 253 and Entry 13 of List I. The competence of Parliament to

enact the law thus has to be rejected.

51.With that background, we come to the second contention that an

area has to be notified and that cannot include the whole of India but an

area within India? The notification itself sets out the requirement of prior

-51-

environmental clearance in any part of India. In other words, it is not

restricted to a part of the geographical area of India but includes the

whole of India. Considering that, we may now consider the argument

advanced on behalf of the petitioner, that it was not within the

competence of the Central Government to issue notification in respect of

a part of India or whole of the India. The argument seems to be based on

Section 3(2)(v) of the Environment Act, which speaks about the

measures to protect and improve environment, which include –

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.

52.We may reproduce Section 3 of the Environment Act, which reads

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.

(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) co-ordination of actions by the State Governments,

officers and other authorities--

(a) under this Act, or the rules made thereunder,

or

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(b) under any other law for the time being in force

which is relatable to the objects of this Act;

(ii) planning and execution of a nation-wide programme

for the prevention, control and abatement of

environmental pollution;

(iii) laying down standards for the quality of

environment in its various aspects;

(iv) laying down standards for emission or discharge of

environmental pollutants from various sources

whatsoever:

Provided that different standards for emission or

discharge may be laid down under this clause from

different sources having regard to the quality or

composition of the emission or discharge of

environmental pollutants from such sources;

(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;

(vi) laying down procedures and safeguards for the

prevention of accidents which may cause environmental

pollution and remedial measures for such accidents;

(vii) laying down procedures and safeguards for the

handling of hazardous substances;

(viii) examination of such manufacturing processes,

materials and substances as are likely to cause

environmental pollution;

(ix) carrying out and sponsoring investigations and

research relating to problems of environmental

pollution;

(x) inspection of any premises, plant, equipment,

machinery, manufacturing or other processes, materials

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or substances and giving, by order, of such directions to

such authorities, officers or persons as it may consider

necessary to take steps for the prevention, control and

abatement of environmental pollution;

(xi) establishment or recognition of environmental

laboratories and institutes to carry out the functions

entrusted to such environmental laboratories and

institutes under this Act;

(xii) collection and dissemination of information in

respect of matters relating to environmental pollution;

(xiii) preparation of manuals, codes or guides relating to

the prevention, control and abatement of environmental

pollution;

(xiv) such other matters as the Central Government

deems necessary or expedient for the purpose of

securing the effective implementation of the provisions

of this Act.

(3) The Central Government may, if it considers it

necessary or expedient so to do for the purpose of this

Act, by order, published in the Official Gazette,

constitute an authority or authorities by such name or

names as may be specified in the order for the purpose

of exercising and performing such of the powers and

functions (including the power to issue directions under

section 5) of the Central Government under this Act and

for taking measures with respect to such of the matters

referred to in sub-section (2) as may be mentioned in the

order and subject to the supervision and control of the

Central Government and the provisions of such order,

such authority or authorities may exercise and powers or

perform the functions or take the measures so mentioned

in the order as if such authority or authorities had been

-54-

empowered by this Act to exercise those powers or

perform those functions or take such measures.”

53.It would be clear from a reading of Section 3(1), that the Central

Government has 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. Sub-section (2) of Section (3) is very specific. It speaks that 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 matters which are set out therein. It is, thus, clear that

Section 3 (1) confers a general power, whereas under Section 3(2)

specific power has been conferred for the purpose of measures. The

language used is 'restriction of areas'. Merely, because the expression

used is 'of areas'', it does not mean that it has to be only a part of the

geographical area of India or of a State and not the entire country. In our

opinion, there may be issues relating to State-specific industries, projects,

operations processes or in specific areas of State or States. There may

also be need for a general measures in respect of whole of India. For that

purpose, it is not necessary for the Central Government to issue

notifications State-wise or area wise. It is open to the Central

Government to issue a notification covering the entire area. As an

illustration, the C.R.Z. notification covers the coastlines of India.

We may also refer to the judgment of the Supreme Court in Gopi

Aqua Farms & Ors. Vs. Union of India & Ors., AIR 1997 SC 3519,

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wherein the judgment in S. Jagannath Vs. Union of India & Ors.,

(1997) 2 SCC 87, was sought to be got rid of. A challenge was sought to

be made that the C.R.Z. notification dated 19.02.1991 was ultra vires of

the Environment Act and also violative of the fundamental rights

guaranteed under the Constitution of India. The Supreme Court noted

that there was no explanation why the validity of the notification was not

challenged at the time when Jagannath's case (supra) was heard, and held

that the said judgment is binding on all persons irrespective of the fact

whether they were parties in the said proceedings or not. Paragraph 2 of

the judgment is quoted herein below:-

“2. On behalf of the writ petitioners, Mr. K.K.

Venugopal has argued that the writ petitioners were

not parties to the proceedings before the Court in the

case of Jagannath (1997 AIR SCW 635) and the

decision is not binding upon them. This argument is

not acceptable for several reasons. The case of

Jagannath had received widest publicity. Various

investigations into facts relating to shrimp culture was

made, reports were obtained from various sources like

NEERI, Central Board for Prevention and Control of

Water Pollution and various other authorities. It is

difficult to believe that the petitioners were unaware

of all these events. A large number of shrimp farmers

and organisations representing them appeared in Court

and placed their points of view about the dispute.”

Considering the above observations, in our opinion, the second

contention will also have to be rejected. The ancillary contention that the

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MMRD Act provides for also environmental protection and, therefore,

the Environment Act would not be applicable has been rejected in M.C.

Mehta (supra).

54.The last contention sought to be raised is that the sand mining is

not a project and, therefore, would not fall within the notification dated

14.09.2006. We may note that Part II of the said notification uses the

expression 'project or activities'. Therefore, even if we accept, for the

sake of argument, that the mining of sand is not a project, there can be no

dispute that it would be an activity. We may briefly reproduce the

meaning of words 'project' and 'activity' as given in The Concise Oxford

Dictionary, 9

th

Edition:-

“Project – a plan; a scheme; a planned undertaking; plan or

contrive (a course of action, scheme, etc.).

Activity – the condition of being active or moving about, the

exertion of energy; vigorous action; a particular occupation

or pursuit (outdoor activities).”

The meaning of word 'Project' as given in Murray, J.A.M. Vol. 7,

Calarandon Press, is as under:

“Project- A plan, draft, scheme, or table of something; a

tabulated statement; a design or pattern according to which

something is made.

“Project- trans. To plan, contrive, devise, or design

(something to be done, or some action or proceeding to be

carried out); to form a project of.

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The meaning of word 'Enterprise' as given in Blacks Law

Dictionary Fifth Edition 1979, is as under:-

“Enterprise-A venture or undertaking especially one

involving financial commitment.

The meaning of word 'Enterprise' is also defined in Murray J.A.E.

Vol.3, Calarandon Press, which is as under:-

“Enterprise- trans. To take in hand (a work), take upon

oneself (a condition), attempt or undertake (a war, an

expedition, etc. ), run the risk of or venture upon (danger),

arch.”

Thus a project includes an enterprise. Activity in the context would

have wider meaning to include a profession or pursuit.

55.We have, therefore, no hesitation in holding that the notification

dated 14.09.2006 would cover mining which, if not project, will fall

within the expression 'activity'. The last contention, therefore, must also

to be rejected.

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

14.9.2006. 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

-58-

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

14.9.2006, as also in respect of new mining leases

granted subsequent to 14.9.2006, it is mandatory to

obtain environmental clearance under the Notification

dated 14.9.2006. 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 30.6.2011 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 of

14.9.2006.

(C) The State to take steps to implement the report of

the Committee appointed in Noor Mohammad vs.

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State of U.P. (supra) pursuant to direction dated

6.3.2009 as referred in para 20 of the judgment and the

letter dated 1

st

June, 2010 from the Ministry of

Environment & Forest, Government of India.

The Writ Petition No. 9416 (M/B) of 2010 is accordingly disposed

of.

We find no merit in Writ Petition No.10025 of 2010 (M/B) and the

same is, accordingly, dismissed. Rule discharged.

Date: 29

th

April, 2011

RK/- (F.I. Rebello, C.J.)

(Devi Prasad Singh, J.)