TaxTMI 
TaxTMI 
2009 (5) TMI 981
X X X X Extracts X X X X
X X X X Extracts X X X X
....amta, Bimal Roy Jad, Vijay Kumar, M.G. Diwan, Vishwajit Singh, Advs. in I.A. No. 2198, Piyush Sharma, Piyush Sharma, Dinesh C. Pandey, Advs. in I.A. Nos. 2377-80, K.K. Rai, Sr. Adv., S. K. Pandey, Bankey Bihari, Krishnand Pandey, Pawan Upadhyay, Anisha Upadhyay, Ankit Shah, Sharmila Upadhyay, Advs. in I.A. Nos. 2306-2307, A.K. Srivastava, Sr. Adv., Puneet Agrawal, Satish Jaglan, Advs. for Kailash Chand, Adv. in I.A. Nos. 873-874, 1700 and 2445 in I.A. 873 and 874, M.N. Krishnamani, Sr. Adv., S.L. Kumar, B.V.K. Ahluwalia, Advs. in I.A. Nos. 1612-13, Rajiv Dutta, Rakesh Dwivedi, Sr. Advs., Vijay Lakshmi Menon, Ekta Kapila, Vijay Kaurdel, Kuber Diwan, Preetika Dwivedi, T.K. Pradhan, Advs. in I.A. Nos. 2334-2335, Ashwarya Sinha, Amboj Kr. Sinha, Praveen Gupta, Chitralekha Sen, Advs. for Kailash Chand, Adv., Parag P. Tripathi, ASG, Manjeet Singh, Arti Gupta, Advs. for T.V. George, Adv., A.D.N. Rao, Adv. for Lawyers Knit, & Co., Kavita Wadia, Haris Beeran, Ashish Dholakia, Adarsh Priyadarshi, Sumita Hazarika, Advs. in I.A. Nos. 2377-2380 and I.A. No. D 58737, Kiran Bhardwaj, Adv. for Kailash Chand, Adv., Hemantika Wahi, Pinky, Somnath Padhan, Mamta Tushar, Advs. in I.A. Nos. 2355-2357, K....
X X X X Extracts X X X X
X X X X Extracts X X X X
....IA No. 1785 2. Issue notice. Mr Bharat Singh accepts. Reply be filed within four weeks. Rejoinder be filed within four weeks thereafter. In the meantime, within 48 hours from today the Chief Secretary, Government of Haryana is directed to stop all mining activities and pumping of groundwater in and from an area up to 5 km from the Delhi-Haryana border in the Haryana side of the ridge and also in the Aravalli hills. (emphasis supplied) (ii) On 29/30.10.2002 the following Order was passed: ILLEGAL MINING IN ARAVALLIS ...We, prohibit and ban all mining activity in the entire Aravalli hills. This ban is not limited only to the hills encircling Kote and Alampur villages but extends to the entire hill range of Aravalli from Dholpur to Rajasthan. The Chief Secretary, State of Haryana and Chief Secretary, State of Rajasthan are directed to ensure that no mining activity in the Aravalli hills is carried out, especially, in that part which has been regarded as forest area or protected under the Environment (Protection) Act. (emphasis supplied) (iii) On 31.10.2002 the following Order was passed: IA No. 1785 in IA No. 22 and in WP No.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Aravalli hills is carried out, especially in that part which has been regarded as Forest Area or protected under the Environment (Protection) Act. On consideration of the report of Central Empowered Committee dated December 14, 2002, we issue the following further directions: (1) Mining may be permitted in Forest Areas where specific prior approval under Section 2 of the Forest (Conservation) Act, 1980 has been accorded by the Ministry of Environment and Forest, Government of India. However, in view of this Court's order dated 14.2.2000 passed in I.A. No. 548 no mining activity is permitted within areas which are notified as Sanctuary, National Park under Sections 18, 35 of the Wild Life (Protection) Act, 1972 or any Sanctuary, National Part or Game Reserve declared under any other Act or Rules made thereunder even if prior approval have been obtained from the MOEF under the F.C. Act in such an area. (2) Under Notification dated 29th November, 1999 issued under Section 23 of the Environment (Protection) Act for certain Districts including Gurgaon District in the State of Haryana, the Ministry has delegated power to grant approval for mining purposes to t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Alampur District in the State of Haryana. List the matter on 7th February, 2003 at 2 O'Clock. (emphasis supplied) I. Reasons behind Order dated 29/30.10.2002 imposing total ban: 4. The question to be answered at the outset is why did this Court impose a complete ban on mining in the Aravalli range falling in the State of Haryana which broadly falls in District Gurgaon and District Faridabad including Mewat? The statistical data placed before this Court indicated that, in October, 2002, twenty six mines were inspected which indicated wide scale non-compliance of statutory Rules and Regulations applicable to mines. Broadly stated, most of these mines failed to obtain environmental clearances. Most of these mines failed to submit environmental management plan. In some cases, the status of mining indicated below groundwater table. Mining pits were turned into huge groundwater lakes. No efforts were made to create plantation. Broadly, these were silica sand mines. In some cases, even groundwater stood extracted. Deep mining pits with large water bodies were detected. Huge amounts of overburden were also seen in the area. These are some of the defects which were ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....agencies. That, mining was permitted in a manner which was destroying the groundwater table as also causing irreparable damage to the critical groundwater reserves. That, there was no effective mechanism to ensure compliance of various conditions stipulated while giving approvals and, lastly, no deterrent action was taken against mines for serious violations and non-compliance of conditions were found. III. Consequences of Continuous Violation of the Rules: 7. As stated above, Notification dated 7.5.1992 was passed with a view to strictly implement the measures to protect the ecology of the Aravallis range. It was followed more in its breach. The Aravallis, the most distinctive and ancient mountain chain of Peninsular India, mark the site of one of the oldest geological formations in the world. Due to its geological location, desertification is stopped and it prevents expansion of the desert into Delhi. On account of extensive mining on a disproportionate scale without taking remedial measures has resulted irreversible changes in the environment at Aravalli. It is in the aforestated background that any mining activity came to be banned under Order dated 29/30.10.2002. Even as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(supra) decided on 18.3.2004, a window was left open for this Court to impose complete ban on mining operations if emergent situation arises. The decision to ban/suspend mining in the above area has been taken by State of Haryana (see Minutes of the Meeting dated 7.1.2009 annexed as Exhibit R/4 to the Second Report dated 15.1.2009 of CEC). In the said meeting held on 7.1.2009, a consensus has been reached between CEC and the State of Haryana to declare the entire Aravalli Hill Range falling in the Districts of Faridabad and Gurgaon including Mewat as a "Prohibited Zone" so far as mining of major mineral is concerned. The decision of State of Haryana is also supported by MoEF, as submitted by Shri Parag Tripathi, learned Additional Solicitor General. IV. Breach of Relevant Rules and Consequences thereof: (a) Mining Projects: 8. Nature has endowed India with a wide variety of temperate and tropical forests. The Earth has not only provided ridges, fauna, flora to India but immense mineral treasures with great potential for economic exploitation. At the same time, our economy is facing problems on account of rising population, indiscriminate industrialization, unsustainable ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....andatory document comprising information about leasehold area showing nature and extent of mineral body, prospecting data, details of geology including mineral reserves, method of mining, manual mining, mechanised mining, nature and extent of water bodies, forest areas, density of the trees, protective areas, environment impact assessment of mining activity on forest, land surface, details of ecological restoration of area, land reclamation, use of pollution control devices and plans for excavation from year to year for 5 years and such matters and measures as may be directed by the Central Government or the State Government (see Handbook of Environment & Forest Legislations, Guidelines and Procedures in India by Ravindra N. Saxena and Sangita Saxena at p. 1529). The concept of mining plan applies to cases of mining of major minerals. (c) Environmental Management Plan: 10. Rule 22(5) of Mineral Concession Rules, 1960 provides for various components of a mining plan. Every mining plan has to indicate limits of reserves, density of trees, assessment of impact of mining activity on forests, land surface and scheme for restoration of the area by afforestation, land reclamation an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on. As stated above, in 2004 this Court detected many cases where operations were done without proper environment management plan, mining plan etc. In this Order we are not examining faults of individual user agencies. Suffice it to state that when these mines operated without proper clearances in the past they have left pits/quarries without reclamation and without compliance of the provisions of the mining plan. Today, it is too late in the day to say that leases granted subsequently complies with various clearances because these lessees which operated mines earlier have left the pits/quarries open to the sky without taking remedial measures including reclamation. In this Order what we are emphasising is extensive mining and not individual un-authorised mining because even in the case of former no steps to re-habilitate was ever taken. The result is that mining operations have been carried out on a disproportionate scale in the Aravalli Hill mainly in Gurgaon and Faridabad including Mewat in the State of Haryana. The satellite images indicate the devastation caused to the area by the extensive mining operations. Extraordinary situation demands extraordinary remedies. In the circu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... mining can take place after seeking permission under Section 2 of the Forest (Conservation) Act. (see para 89); (c) No mining can be carried on in areas where plantations have been undertaken under the Aravalli project (EU funded project); and (d) Environmental clearance is mandatory under the Environment Notification dated 27.1.1994. 15. It is true that, complete ban was imposed on mining Aravalli hills vide Order dated 29/30.10.2002, which came to be modified by Order dated 16.12.2002 and it is equally true that, vide judgment in M.C. Mehta case (supra), this Court observed that it was not suggesting a complete ban on mining operations so long as it is possible to undertake mining operations on the sustainable development principle (see para 57). At the same time, in paras 89 and 96(6) of the judgment dated 18.3.2004 this Court specifically suggested that if degradation of environment continues and reaches the stage of no return, this Court may consider closure of mining activities. In other words, a gateway was provided for this Court to impose the ban in future if degradation of environment becomes irreversible. VI. Contentions and Answers thereto: 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mposed ban of mining operations even after noticing non-compliance of the Rules. Therefore, according to the learned Counsel, in the present case, banning should be resorted to only if there are no other options left. Further, according to the learned Counsel, a ban can be placed only if material is brought on record to indicate so called devastation to the ecology as pleaded by the learned amicus curiae. According to the learned Counsel, in the present case, there is no such material justifying a complete ban on mining operations. It is also urged by the learned Counsel that in pursuance of the directions contained in para 96 of the judgment, MoEF considered applications submitted by Sethi Brothers for EIA and after extensive deliberations, MoEF granted environmental clearance to its two projects on the ground that the leases had not reached the water table, that the leases were not subject matter of Notifications under Section 4 and 5 of the Punjab Land Preservation Act, 1900 and that no mining has been carried out in areas where plantation has been undertaken. 17. We do not find merit in these arguments. As stated hereinabove, after taking a macro view based on the satellite ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....A postulates formation of an opinion by the Central Government, after consultation of the State Government, in the matter of cancellation of mining leases in cases of environmental degradation, the power needs to be exercised by the State Government upon receipt of request from the Central Government. According to the learned Counsel, therefore, this Court cannot cancel the mining leases if there is alleged environmental degradation as submitted by the learned amicus curiae. It was further submitted that measures under Section 3(2)(v) of EP Act, 1986 to restrict areas in which industries shall or shall not be carried out can only be undertaken by the Central Government where it deems expedient to protect and improve the quality of environment. In fact, according to the learned Counsel, when Aravalli's Notification was issued on 7.5.1992 it was issued under Section 3(2)(v) by the Central Government. At that time, the Central Government thought it fit not to place a complete ban but to permit the industries in the mining sector to carry on its business/operations subject to restrictions enumerated in the said Notification. It was lastly submitted that the recommendations of CEC t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....controlling pollution caused by prospecting or mining operations which also form part of Mineral Concession Rules, 1960 and Mineral Conservation and Development Rules, 1988. Under Rule 27(1)(s)(i) of Mineral Concession Rules, 1960 every lessee is required to take measures for planting of trees not less than twice the number destroyed by mining operations. Under Mineral Conservation and Development Rules, 1988, vide Rule 34, mandatory provisions for reclamation and rehabilitation of lands are made for every holder of prospecting licence or mining lease to be undertaken and that work has to be completed by the lessee/licensee before abandoning the mine or prospect. Similarly, under Rule 37 of Mineral Conservation and Development Rules, 1988 the lessee/licensee has to calibrate the air pollution within permissible limits specified under EP Act, 1986 as well as Air (Prevention and Control of Pollution) Act, 1981. Under the said Rules 1988, the most important Guideline is Guideline No. 25.26.3, 25.26.4, 25.26.5 and 25.26.6. This Guideline deals with reclamation, planning and implementation, restoration strategy, principles of rehabilitation, rehabilitation of mined out sites and methods....