TaxTMI 
TaxTMI 
2015 (3) TMI 1340
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.... by over exploitation of natural resources and protection of natural resources. Saving the environment and ecology is not only the fundamental duty of every citizen but it is also the obligation of every State. Writ Petitions listed before us consist of Writ Petitions filed as Public Interest Litigations, Police Protection Cases and Writ Petitions filed by and against quarry owners. Learned Single Judges while hearing a few of these Writ Petitions have also made reference to Division Bench for authoritative pronouncement on different environmental issues. 2. All the Writ Petitions and one Writ Appeal can be divided into the following five groups: (I) Writ Petitions filed as Public Interest Litigations raising issues of unauthorised functioning of quarries in violation of the decision in Deepak Kumar and Others v. State of Haryana and Others ([2012] 4 SCC 629) and in violation of the Notifications issued by the Government of India, Ministry of Environment and Forests under the Environment (Protection) Act, 1986. (II) Different Writ Petitions questioning the quarrying operations being conducted by the respondents to the Writ Petitions in violation of the decision....
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....ccordance with the mining lease under Section 4 of the 1957 Act. It is pleaded that issuance of mining permit for mining operations is not permissible under law. Amendment made in Section 14 by Amendment Act 1986 has been referred to. It is stated that permits issued by respondents 1 and 2 for mining operation after 20.12.1999 are contrary to Section 4 of the 1957 Act. It is pleaded that the directions issued by the Apex Court in Deepak Kumar's case (supra) are being subverted by issuing mining permits by the State Government. Reference has been made to Government Order dated 23.11.2012 issued by the State which ordered that short term permits can be granted for the existing quarries for extraction of minor minerals from private holdings for a period not exceeding one year, if the applicant concerned had complied with all other conditions for issuance of the permit as well the conditions regarding environmental clearance stipulated in the order of the Supreme Court. Government order dated 23.11.2012 was modified by a subsequent Government order dated 11.12.2012 by which it was clarified that short term permits can be granted in respect of minor minerals in private holdings whic....
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.... Pleader has filed an adoption memo to adopt the counter affidavit filed by the State in W.P(C) No. 6338 of 2014 which has been taken on record. The State in its counter affidavit has stated that as per the directions of the Apex Court in Deepak Kumar's case (supra), the Government has framed Rules, namely, the Kerala Minor Mineral Concession Rules, 2015. It is averred in the counter affidavit that recommendations made by the Apex Court in Deepak Kumar's case (supra) had been incorporated in the Rules. It is stated that in view of the subsequent developments, i.e., framing of the 2015 Rules there is no necessity to consider the questions which have been referred by the learned Single Judge by his order dated 12.03.2014. 6. Another Public Interest Litigation is W.P(C) No. 20601 of 2014 (V.K. Murali and Another v. Kizakkancherry Grama Panchayat and Others) which petition has been filed by two residents of the aforesaid Panchayat. Grievance has been regarding unauthorised functioning of granite quarrying units conducted by respondents 7 and 8 ignoring the various environmental enactments and provisions of the 1957 Act and 1967 Rules. Petitioners claim to have submitted a co....
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....pecific direction contained in the judgment of the Apex Court in Deepak Kumar's case (supra) and Ext.P1, Office Memorandum dated 24.12.2013. The 2015 Rules further provided that persons who are having the mining permit should submit mining plan within a period of one year till 01.04.2016 which is an ingenious method resorted to facilitate the lease holders to continue their operation without possessing a valid environmental clearance. Rule 66 of the 2015 Rules is attacked alleging it to be colourable exercise of power. It is contended that Rules have not been issued in this regard in accordance with the directions issued by the Apex Court in Deepak Kumar's case (supra). In the Writ Petition although there was challenge to Rule 33 read with Rules 66, 10(f) and 40(i) of the 2015 Rules learned counsel for the petitioners, Shri P.B. Krishnan submitted that he confines his prayers in the Writ Petition only to the effect that Rule 68 be interpreted to mean that for carrying out all mining operations, a mining plan is mandatory and Rule 68 be read to the effect that no lessee is to carry out mining operations without approved plan. It is submitted that he confines his prayer in th....
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....ents 9 and 10 has also been made which was registered for illegal mining activities in the Government land. Order dated 28.09.2012 of the Revenue Divisional Officer, Kollam has also been referred to wherein the RDO has held that respondents 9 and 10 had conducted illegal quarrying encroaching Government lands. It is pleaded that as per Section 4 of the 1957 Act, quarrying is permissible only on the strength of quarry/mining lease whereas respondents 9 and 10 have been allowed to conduct quarrying of granite stones without a quarrying or mining lease. Reference to National Mineral Policy, 2008 has also been made. Petitioners prayed for the following reliefs in the Writ Petition: (i) Issue a Writ of mandamus or any other writ order or direction directing respondents 2 to 5, 7 and 8 to stop the illegal quarrying activities of respondents 9 and 10 in government lands in Sy. Nos. 127/6. 127/7, 120, 272/3, 272/4, 263/1, 118, 127/8 and 119 in Block No. 27 of Elamad Village, Kollam District and private lands in 127/5-2, 127/5-3, 126/2-2, 126/1-1, 126/3-3, 129/4, 265/1-3 109/3, 117/5-1, 117/5-2, 117/2, 261/1, 264/1, 264/2-1, 264/2-2, 264/5, 264/5-2, 264/6, 264/7, 265/1, 265/1-2, 11....
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....Order dated 21.02.2014 has also been brought on record where certain directions were issued by the State Government regarding rock quarrying, river mining and quarrying of ordinary earth. Reply was filed by the petitioners. 12. Counter affidavit has been filed by the 5th respondent, Senior Geologist, Department of Mining and Geology. In paragraph 3 of the counter affidavit details of the quarrying permits issued to respondents 8 and 9 have been mentioned. Validity period of the said permit has been mentioned as 01.05.2015 (for one permit) and 12.05.2015 (for other permits). Reference to Government Order dated 21.02.2014 has also been mentioned. An adoption memo has been filed by the learned Senior Government Pleader to adopt the counter affidavit filed by the State in W.P(C) No. 6338 of 2014. In the counter affidavit filed in W.P(C) No. 6338 the State has averred that it has framed the 2015 Rules in which directions issued by the Apex Court in Deepak Kumar's case (supra) have been complied with. Learned Single Judge while hearing the Writ Petition noted the contentions raised by the learned counsel for the parties and has noted the various directions issued by the Apex Court....
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....p also. It is sufficient to refer to the pleadings in W.P(C). No. 12706 of 2014, in which reference order dated 26.05.2014 has been passed for comprehending various issues raised in the Writ Petitions of this group. 15. W.P(C). No. 12706 of 2014 has been filed by the petitioners, who claim to be in possession of 30 cents of dry land in Sy. No. 50/11. The petitioners submitted an application to issue no objection certificate for removing ordinary earth and the District Collector issued no objection certificate dated 28.11.2012. By Exhibit P3, permit dated 07.12.2013 has been issued by the Geologist allowing removal of ordinary earth from the property of the first petitioner. The Village Officer had issued a stop memo, Exhibit P5 dated 27.02.2014, which was challenged by the petitioner in W.P(C). No. 6290 of 2014, wherein this Court stayed the stop memo. The petitioner's case is that no orders have been issued for issuing new permit or revalidating the time limit in the permit. The petitioner has referred to Exhibit P9 Government order dated 21.02.2014, by which the State Government issued various directions with regard to rock quarrying, river sand mining and mining/excavatio....
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.... project as defined in the environmental impact assessment notification dated 14.09.2006 and is to be considered by respective State Level Environmental Impact Assessment Authority. It held that allowing mining operation without the environmental clearance from the State Level Environmental Impact Assessment Authority is violation of the order of the Supreme Court. On the said ground, the lease was cancelled. W.P(C). No. 16940 of 2013 was filed by the petitioner in which the High Court vide judgment dated 25.07.2013 set aside the order of the State Government, Exhibit P6, on the ground that it was passed in violation of the principles of natural justice and the State Government was directed to pass a fresh order. The State Government again by Exhibit P9 order dated 19.02.2014 held that quarrying lease will stand cancelled. It is useful to note the following observation of the State Government while cancelling the lease: "In view of these facts, Forest Department reported that they are not in favour of allowing quarrying activities in that area as the same is detrimental to the forest and wildlife. Government have also considered the fact that the averred land in this case ....
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....nst which the petitioner filed a Writ Petition and this Court directed the District Collector to consider the petitioner's application after obtaining environmental clearance from SEIAA. A counter affidavit has been filed by the District Collector stating that quarrying shall affect the wild life and human population. 21. W.P(C). No. 10738 of 2014 has been filed to quash the time limit in Exhibits P2 and P3 and to quash Exhibit P8 refusing extension of time. The petitioner was granted mining permit on 28.03.2014 for a period upto 10.04.2014 to extract ordinary earth. The petitioner submitted representation to extend the period mentioned in Exhibits P2 and P3. The District Collector passed order on 04.04.2014 that quarrying permit cannot be granted, since environmental clearance is required. A counter affidavit has been filed by the Geologist, wherein it has been stated that as per Government Order dated 21.02.2014 environmental clearance is obligatory for granting quarrying permit. 22. The fourth group of Writ Petitions consist of Writ Petitions, which have been filed by the quarry owners/mining permit holders/mining lease holders seeking police protection. In all the Wri....
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....e respondents from publishing the final notification in pursuance of the draft Rule, Exhibit P5 before considering the objection. 26. W.A. No. 1566 of 2014 has been filed by the appellant against the judgment dated 23.01.2014 passed in W.P(C). No. 11478 of 2013. The Writ Petition was filed by the petitioner challenging the decision of the Panchayat dated 07.03.2014, Exhibit P18 rejecting the petitioner's application for issuance of licence to conduct the quarry. The learned Single Judge dismissed the Writ Petition. The Panchayat had filed a counter affidavit in the Writ Petition, where it referred to the decision dated 07.03.2013 of the Panchayat that granting quarry licence shall be disturbance to the public and shall cause danger to the residents and people. 27. In some of the Writ Petitions application for impleadment has been filed by various quarrying/lease/mining permit holders as well as associations. Some of the applicants were allowed to be impleaded, whereas others have been permitted to intervene in the matter. We have also heard the learned counsel appearing for the additional respondents in different Writ Petitions as well as the intervenors. 28. We have h....
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....ning operations even for an area less than 5 hectares. The State Government is bound to follow the notifications made in the 1986 Act and the orders issued by the Government India. The Government Orders issued by the State from time to time are violating the rights guaranteed under Articles 21, 48 and 51A of the Constitution of India. It is the duty of the State to protect the environment from excessive mining, which will destroy the natural resources. The submission further is that the judgment of the Apex Court in Deepak Kumar's case (supra) prohibited all kinds of mining operations after issuance of the judgment without issuing environmental clearance and the said judgment is fully applicable to the mining lease granted even prior to the judgment of the Apex Court regarding the area less than 5 hectares. Other learned counsel appearing for the petitioners in the Writ Petitions challenging the quarrying operations by lease holders/permit holders have also raised similar submissions. 30. Shri P.B. Krishnan, learned counsel appearing for the petitioner in the public interest litigation, W.P(C). No. 4471 of 2015 has contended that the 2015 Rules dated 07.02.2015 are not in ac....
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....bmitted that the judgment of the Apex Court in Deepak Kumar's case (supra) was only with regard to mining leases and the Apex Court did not intend that environmental clearance be obtained with regard to short term permits, which are issued only for short period. It is submitted that mining operations by leases/permits be permitted to continue as per the 2015 Rules. 32. Shri Bechu Kurian, learned counsel for the petitioners/quarry owners submitted that the notification dated 14.09.2006 is applicable only with regard to new activities. It is submitted that the notification dated 14.09.2006 was not applicable to existing leases/permits and the existing mining activities. It is submitted that since the notification dated 14.09.2006 envisages obtaining prior environmental clearance, which clearly means that environmental clearance is to be obtained before starting mining operations. Thus, the notification was applicable only with regard to new activities, which were to come after the issuance of the notification. 33. The learned Advocate General Sri. K.P. Dandapani and the Senior learned Government Pleader Sri. C.S. Manilal, appearing for the State, placing reliance on the 201....
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....earned counsel for the permit holders/intervenors submitted that the prescription in the proviso to Rule 12 of the 2015 Rules that environmental clearance required under Rule 9 shall not be insisted in the case of renewal of quarrying permits in respect of quarrying which had a valid permit as on 09.01.2015 causes prejudice to those permit holders, whose permits had come to an end prior to 2015. He submitted that mining permits are fully permissible by virtue of Section 15 of the 1957 Act. He also submitted that permits are given for a small area and only for a period of one year, for which no environmental clearance is contemplated under notification dated 14.09.2006 or in the judgment of the Apex Court in Deepak Kumar's case (supra). Persons having less than 5 hectares area are disabled to make any application for environmental clearance. 36. Shri P.K. Suresh Kumar, learned counsel appearing for the existing lease holders submitted that the notification dated 14.09.2006 applies only to existing projects/activities for modernization and expansion and has no application on existing leases/permits. He submitted that all laws are to be presumed to be prospective unless there i....
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....ronmental clearance as contemplated by Notification dated 14.09.2006 issued under the Environmental Protection Act, 1986 requires environmental clearance for new projects/new activities or shall also govern the existing projects/activities? VI. Whether environmental clearance as per Notification dated 14.09.2006 and the order dated 18.05.2012 issued by the Government of India, Ministry of Environment and Forest, is required for grant of short term mining permit also? VII. Whether the interim directions issued by the Apex Court in Deepak Kumar's case (supra) dated 27.02.2012 were limited to the event of framing of appropriate Rules by the State Government under Section 15 of the 1957 Act? VIII. Whether as per Rule 68 of 2015 Rules no quarrying operations can be carried out without there being an approved mining plan and Rule 68 did not contemplate any exception and has to be interpreted to the effect that after enforcement of the Rule with effect from 07.02.2015 all quarrying operations have to be done under approved mining plan? IX. To what reliefs the petitioners of different groups in this bunch of Writ Petitions are entitled? 41. Issue ....
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.... and for purposes connected therewith. Section 15(1) was amended by Act 56 of 1972. Section 15(1) as amended provided as follows: "15. Power of State Governments to make rules in respect of minor minerals. - (1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith." Section 15(1A) was inserted by Act 37 of 1986. Relevant provisions for the purpose of this case are quoted below: "(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) the person by whom and the manner in which, applications for quarry leases, mining leases or other mineral concessions may be made and the fees to be paid therefor. (d) the terms on which and the conditions subject to which quarry leases, mining leases or other mineral concessions may be granted or renewed. (e) the procedure for obtaining quarry leases, mining leases or other mineral concessions." The State of Kerala in ....
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....and the carrying on processes and operations in different areas. In exercise of the power under clause (a) of Rule 5(3), Notification was issued by the Central Government inviting objections from the public with the intention to impose prohibitions and restrictions on the expansion and modernization of any activity or new projects. After considering the objections in exercise of the power under Section 3(1) and (2) of the 1986 Act as well as Rule 5(3) of the 1986 Rules, the Central Government issued Notification dated 27.01.1994 prohibiting expansion or modernization of any activity or new project listed in the Schedule unless it has been accorded environmental clearance by the Central Government. Schedule I of the Notification mentioned list of project requiring environmental clearance from the Central Government. Item No. 20 is Mining Projects which was to the following effect: "20. Mining projects (major minerals) with leases more than 5 hectares" 43. Another Notification dated 14.09.2006 was issued by the Central Government in exercise of the power under Rule 5(3) the 1986 Rules in supersession of Notification dated 27.01.1994 where restriction was imposed on construction....
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....ment to prohibit and restrict location of industries and the carrying on process and operations in different areas. Rule 5(3) and (4) which are relevant are quoted below: "5(3)(a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the location of an industry or the carrying on the processes and operations in an area, it may, by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time, given notice of its intention to do so. (b) Every notification under clause (a) shall give a brief description of the area, the industries, operations processes in that area about which such notification or restrictions on the location of the industries and carrying on of processes or operations in that area. (c) Any person interested in filing an objection against the imposition of prohibition or restriction on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette. (d) The Central Government s....
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....ecified hereinafter in this notification. Paragraph 2 of the Notification which is relevant is also quoted hereunder: "2. Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category B in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity: (i) All new projects or activities listed in the Schedule to this notification; (ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization. (iii) Any chang....
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....m 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....." Although the Notification used two words "construction of new projects or activities" before the word 'projects', the word 'new' is added but whether the word 'activities' was also be read in the conjunction with new is the issue to be answered. Clarification of the above issue is contained in paragraph 2 of the Notification which contains heading "Requirements of prior Environmental Clearance". Paragraph 2 begins with the words "the following projects or activities shall require prior environmental clearance. The word 'project' or 'activity' is not suffixed with the word 'new. However, projects have been detailed in paragraph 2(i) to (iii). Paragraph 2(i) refers to 'all new projects or activities listed in the Schedule to this notification and paragraph 2(ii) relates to "Expans....
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....ly attracted while interpreting the above notification. To the similar effect is the judgment of the Apex Court in The State of Bombay and others v. The Hospital Mazdoor Sabha and others (AIR 1960 SC 610) wherein the following was laid down in paragraph 9: "9. It is, however, contended that, in construing the definition, we must adopt the rule of construction noscitur a sociis. This rule, according to Maxwell, means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in "words and Phrases" (Vol. XIV, p. 207): "Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim Ejustdem Generis." In fact the latter maxim "is only an illustration or specific application of the broader maxim noscitur a sociis"....
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....on on which the appellant relies is inapplicable in interpreting the definition prescribed by S. 2(j)." Learned counsel appearing for the quarry owners further contended that the provisions of Notification dated 14.09.2006 cannot be held to have any retrospective operation. It is contended that all provisions have to be read as prospective unless there is any indication in the statute to give it retrospective operation. Paragraph 4 of the Judgment of the Apex Court in Arjan Singh and another v. State of Punjab and others (AIR 1970 SC 703) has been relied on which is quoted as below: "4. It is a well-settled rule of construction that no provision in a statute should be given retrospective effect unless the legislature by express terms or by necessary implication has made it retrospective and that were a provision is made retrospective, case should be taken not to extend its retrospective effect beyond what was intended." To the similar effect is the judgment of the Apex Court in Zile Singh v. State of Haryana ([2004] 8 SCC 1) and Shanker Raju v. Union of India ([2011] 2 SCC 132) where the following has been laid down in paragraph 35: "35. We may also add that where the L....
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....of any increase in lease area and or production, such projects would need to obtain prior environmental clearance. Further, all such projects which have been operating without any environmental clearance would obtain environmental clearance at the time of their lease renewal even if there is no increase either in terms of lease area or production. (S.K. Aggarwal) Director" 50. Government of India, Ministry of Environment and Forests clarified that all such mining projects which did not require environmental clearance under the EIA Notification, 1994 would continue to operate without obtaining environmental clearance till the mining lease falls due for renewal. As noted above, in the 1994 Notification mining of minor mineral was not included. Thus for mining activity regarding minor mineral no environmental clearance was required under the 1994 Notification. Hence by clarification existing minor leases were to continue till renewal of mining lease falls due. Thus for existing leases, the Central Government clarified that environmental clearance has to be obtained when renewal falls due. In view of the aforesaid discussion, we accept the argument of the learned counsel appea....
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....ial within or near a river bed has an impact on the rivers physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity, it is not an answer to say that the extraction is in blocks of less than 5 hectares, separated by 1 kilometre, because their collective impact may be significant, hence the necessity of a proper environmental assessment plan." The Apex Court noted that the Ministry of Environment and Forests came across several instances across the country regarding damage to lakes, riverbeds and groundwater leading to drying up of waterbeds and causing water scarcity on account of quarrying/mining leases and mineral concessions granted by the State Governments. The Ministry of Environment and Forests, taking note of those aspects constituted a Core Group to look into the environmental aspects which Core Group submitted its recommendations to the Ministry of Environment and Forests. The recommendations given by the Core Group have been extracted by the Apex Court in paragraph 19 of the judgment conclusion of which is to the following effect: 19. For an easy reference, we may extract the issues ....
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....at while granting of mining leases by the respective State Governments, location of any eco - fragile zone(s) within the impact zone of the proposed mining area, the linked Rules/Notifications governing such zones and the judicial pronouncements, if any, need to be duly noted. 24. We are of the view that all State Governments/Union Territories have to give due weight to the above mentioned recommendations of the MoEF which are made in consultation with all the State Governments and Union Territories. Model Rules of 2010 issued by the Ministry of Mines are very vital from the environmental, ecological and bio - diversity point of view and therefore the State Governments have to frame proper rules in accordance with the recommendations, under S. 15 of the Mines and Minerals (Development and Regulation) Act, 1957." The Apex Court emphasised about an effective framework of ming plan which will take care of all environmental issues and also evolve a long term rational and sustainable use of natural resources. The Apex Court further noted that the State of Haryana and other States have not so far implemented the above recommendations of the Ministry of Environment and Forests....
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....lease to be granted and renewal to be obtained for areas less than 5 hectares or the said direction also contemplated obtaining environmental clearance for ongoing leases. 53. After the judgment of the Apex Court dated 27.02.2012 in Deepak Kumar's case (supra) Government of India, Ministry of Environment and Forests came up with office memorandum dated 18.05.2012. By direction dated 18.05.2012, the Government of India included mining areas of less than 5 hectares under the environment regime as contemplated by Notification dated 14.09.2006. Government of India directed that mining projects with lease area upto less than 50 hectares including projects of minor mineral with lease area less than 5 hectares would be treated as category B. It is useful to quote the entire order of the Government of India dated 18.05.2012: "No. L-11011/47/2011-IA.II(M) Government of India Ministry of Environment & Forests Paryavaran Bhavan C.G.O. Complex, Lodi Road, New Delhi-110003 Telefax: 24362434 Dated the 18th May, 2012 OFFICE MEMORANDUM Sub:Order of Hon'ble Supreme Court dated 27.2.2012 in I.A. No. 12-13 of 2011 in SLP (C) No. 19628-19629 of 2009 in th....
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....cordingly, the respective SEIAAs in dealing with the applications of the applicants referred to in the above mentioned order shall ensure that the directions of the Hon'ble Supreme Court are effectively complied with and the applications of such applicants are disposed of within the time limit prescribed by the Hon'ble Court in accordance with law. This issues with the approval of the Competent Authority. Sd/- (Dr. S.K. Aggarwal) Director" 54. The above direction of Government of India is clearly referred to its power under Section 5 of the 1986 Act providing for environmental clearance for lease area less than 5 hectares. Thus there remains no doubt that even for lease area less than 5 hectares, after the judgment of the Apex Court in Deepak Kumar's case (supra) environmental clearance is required for grant/renewal of mining lease. 55. Question as to whether mining lease for areas less then 5 hectares which were continuing on the date of the Apex Court Judgment in Deepak Kumar's case (supra) required environmental clearance has to be examined looking into the directions issued by the Apex Court as well as the order of the Government of India....
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.... view that Notification dated 14.09.2006 clearly covered mining operation by mining lease/mining permit/quarry permit. Government of India by order dated 18.05.2012 having made, obtaining prior environmental clearance mandatory for an area of less than 5 hectares the same shall apply to any kind of mining activity including a mining permit. 58. The Apex Court in State of T.N. v. M/s.Hind Stone etc. (AIR 1981 SC 711) has sounded a note of caution that rivers, forests, minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. It was held that every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation. The following was laid down in paragraph 6: 6. Rivers, Forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of t....
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....terms of the conventions to be widely accepted and rapidly implemented. Regretfully progress in this direction is proving disastrously slow............." (See International Wildlife Law by Simon Lyster, Cambridge - Grotuis Publications Limited, 1985 Edn.) There have been a series of international conventions for the preservation and protection of the environment. The United Nations General Assembly adopted on 29-10-1982. "The world charter for nature." The charter declares the Awareness that: (a) Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients. (b) Civilization is rooted in nature, which has shaped human culture and influenced all artistic and scientific achievement, and living in harmony with nature gives man the best opportunities for the development of his creativity, and for rest and recreation." To the similar effect is the judgment of the Apex Court in Indian Council for Enviro-legal Action v. Union of India and Others ( [1996] 5 SCC 281) where the following observations are made in paragraphs 41 and 42 which are quoted below: ....
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....ation of the anti pollution laws where the allegations relate to the spreading of pollution or non compliance of other legal provisions leading to the infringement of the anti pollution laws. For a more effective control and monitoring of such laws, the High Courts have to shoulder greater responsibilities in tackling such issues which arise or pertain to the geographical areas within their respective States. Even in cases which have ramifications all over India, where general directions are issued by this Court, more effective implementation of the same can, in a number of cases, be affected, if the concerned High Courts assume the responsibility of seeing to the enforcement of the laws and examine the complaints, mostly made by the local inhabitants, about the infringement of the laws and spreading of pollution or degradation of ecology." The Apex Court in T.N. Godavarman v. Union of India ([2002] 10 SCC 606) had emphasised that it is the duty and constitutional obligation of the Government to protect the environment enshrined in Articles, 21, 48A and 51A(g) of the Constitution. Following was laid down in paragraphs 17 and 24: "17. Article 48-A in Part IV (Direc....
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.... of human beings. [See World Commission on Environment and Development--Our Common Future (1987).] To commemorate the tenth anniversary of the Stockholm Conference, the world community of States assembled in Nairobi (May 10-18, 1982) to review the action taken on to implement the Stockholm Declaration. It expressed serious concern about the state of environment worldwide and recognized the urgent need of intensifying the effort at the global, regional and national levels to protect and improve it. The above view was again reiterated by the Apex Court in T.N. Godavar man v. Union of India [ (2006) 1 SCC 1] where the Apex Court noted the following in paragraphs 1 and 3: "1. Natural resources are the assets of the entire nation. It is the obligation of all concerned, including the Union Government and State Governments to conserve and not waste these resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Under Article 51-A, it is the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildli....
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....generation of revenue. A balance has to be struck. We may note that to stall fast the depletion of forest, series of orders have been passed by this Court in T.N. Godavarman's case regulating the felling of trees in all the forests in the country. Principle 15 of Rio Conference of 1992 relating to the applicability of precautionary principle which stipulates that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing effective measures to prevent environmental degradation is also required to be kept in view. In such matters, many a times, the option to be adopted is not very easy or in a strait-jacket. If an activity is allowed to go ahead, there may be irreparable damage to the environment and if it is stopped, there maybe irreparable damage to economic interest. In case of doubt, however, protection of environment would have precedence over the economic interest. Precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment." ....
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....in the Schedule, for item 1(a) and entries relating thereto, the following item and entries shall be substituted, namely:- BB 2 62. In view of the Notification dated 09.09.2013, now all mining leases in respect of all minor minerals having an area of less than 50 hectares required environmental clearance. This obviously include the lease areas less than 5 hectares. However, in the context of the aforesaid Notification, learned counsel appearing for different quarry owners has relied on order of the National Green Tribunal dated 13.01.2015 in O.A. No. 123 of 2014 and M.A. No. 419 of 2014 in the matter of Himmath Singh Shekhawat v. State of Rajasthan and Others. The National Green Tribunal in the said order has held and declared that Notification dated 14.09.2013 is invalid and inoperative for non-compliance of the statutorily prescribed procedure under the 1986 Rules. The following is the direction issued by the National Green Tribunal. "For the reasons afore recorded, we hold and declare that the Notification dated 9th September, 2013 invalid and inoperative for non-compliance of the statutorily prescribed procedure under the Environment (Protection) Rules, 1986 and for ab....
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....mission that after amendment to Section 14, no mining operations can be allowed by a mining permit and mining operation is to be done only except under a mining lease has to be rejected. Restriction under the Section thus has to be read as a prohibition of all mining operations whether under a mining lease or by any other kind of mineral concession. The issue is answered accordingly. 64. Now we come to Issue Nos. II & VII. One of the issues referred to by the learned Single Judge is whether Government Order dated 10.01.2014 can be relied on by the petitioners in view of the interim order passed by the National Green Tribunal dated 27.09.2013. Government Order dated 10.01.2014 has been quoted in the referring order which is to the following effect: "GOVERNMENT OF KERALA Abstract Industries Department-Mining and Geology-Short term permits for extraction of Minor Minerals-pending Environment clearance-Extension of time granted- orders issued ---------------------------------------------------------------------------------------- INDUSTRIES (A) DEPARTMENT G.O.(Ms) No. 5/2014/ID Dated, Thiruvananthapuram, 10th January, 2014 ---------------------....
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....ent Order dated 23.11.2012, another Government Order was issued on 11.12.2012 by the State Government by which certain directions are issued in response to letter dated 28.11.2012 sent by the Director of Mining and Geology. Government Order dated 11.12.2012 is as follows: "GOVERNMENT OF KERALA Abstract Industries Department - Mining & Geology - Order dated 27.2.2012 of Honourable Supreme Court in I.A. Nos. 12-13 of 2011 in SLP No. 19268-19629 of 2009 on the grant of Mineral Concessions to minor minerals - Issuance of permits for extraction of minor minerals in private holdings - Modified Orders issues. --------------------------------------------------------------------------------------- INDUSTRIES (A) DEPARTMENT G.O.(Ms)No. 144/2012/id dated, Thiruvananthapuram 11.12.2012 --------------------------------------------------------------------------------------- Read:- 1) G.O(Ms) 140/12/ID dated 23.11.2012. ) Letter No. 3889/M2/2012 dated 28.11.2012 of the Director of Mining and Geology, Thiruvananthapuram ORDER As per order read as 1st paper above, Government accorded permission to grant short term permits for existing quar....
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....al vide its interim order issued the following directions: "Accordingly, we restrain any person, Company and Authority to carry out any such digging activities of brick earth or ordinary earth against the directives issued by the MoEF dated 24.06.2013 in any part of the country without obtaining EC from the competent authority as per the Notification. The Chief Secretaries of all the States/UTs are to ensure strict adherence to this order. Dasti order allowed." 68. Interim order of the Tribunal having been issued to all Chief Secretaries of the State who were directed to ensure strict adherence of the order. Unless the said order is varied or modified, the State was under an obligation to comply with the said direction. 69. Learned Advocate General has submitted that now since the State of Kerala has framed the 2015 Rules, the issue as to whether the State could have been issued short term permit without obtaining environmental clearance has lost is relevancy. It is submitted that the said issue has become academic only. 70. The judgment of the Apex Court in Deepak Kumar's case has already been noted above wherein in paragraph 29 interim order was passed. In paragra....
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....rances/No Objection Certificate, etc. from other statutory authorities concerned: Provided that, the environmental clearance required under rule 9 shall not be insisted, in the case of renewal of quarrying permits, in respect of quarries which had a valid permit as on 9th day of January 2015. Provided further that the approved mining plan required under Rule 9 shall not be insisted till 1st April 2016 for renewal of a quarrying permit." Rules 20 which deals with grant of quarrying permit also makes the conditions as specified in Chapter II applicable to grant of quarrying permit in respect of lands which vests in the Government. Chapter V which deals with grant of quarrying leases in respect of lands in which the mineral or mineral right vests in the Government also contemplates issuance of quarrying lease only after receipt of mining plan and environmental clearance. Rule 33(1) and (2) which are relevant are quoted below: "33. Disposal of application for the grant or renewal of quarrying lease - (1) On receipt of the application for grant or renewal of quarrying lease for undertaking quarrying operations, the competent authority shall make site ....
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....enewal of quarrying lease, submission of approved mining plan is mandatory. However, with regard to existing lease holders a separate provision (Rule 66) is engrafted. Rule 66(1) grants one year time from the commencement of Rules for submission of mining plan where quarrying operations for minor minerals have been undertaken. As per Rule 66(2) the said period can be further extended for a period of one year. Rule 68 provides that quarrying operations to be in accordance with mining plan which is quoted below: 68. Quarrying operations to be in accordance with mining plan. - (1) Every lessee shall carry out quarrying operations in accordance with the approved mining plan with such conditions as may be prescribed under these rules or with such modifications, if any, as permitted under these rules or the mining plan or the scheme approved under these rules, as the case may be. (2) If the quarrying operations are not carried out in accordance with mining plan as prescribed under these rules, the competent authority may order suspension of all or any of the quarrying operations and permit continuance of only such operations as may be necessary to restore the conditions in th....
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....mining operations. It is only on grant of appropriate clarifications/clearance from the District Collector, petitioners may carrying mining operations and submit application to the Circle Inspector/Sub Inspector concerned for providing police protection. 74. The issues having been considered in the foregoing discussion, now we come to the different groups of Writ Petitions details of which have already been noted. As noted above, the first three Writ Petitions consisting of Group-I, relate to Public Interest Litigations. Prayers in the leading Writ Petition, W.P(C) No. 31148 of 2014 are that a mandamus be issued to respondents 1 and 2, State of Kerala and the Director of Mining and Geology to see that all quarrying operations in the Kerala State are permitted by lease by scrupulously following Exhibit P1, i.e., the order of the Government of India Ministry of Environment and Forests dated 18.05.2012. The Second prayer is for restraining respondents 1 and 2 and its subordinate officers from issuing permits and licences invoking the provisions of Kerala Minor Mineral Concession Rules, 1967 for the purpose of mining operations of minor minerals. In view of our answer to the Issues,....
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....t Petition which has been filed with regard to the 2015 Rules is W.P(C) No. 4471 of 2015. As noted above, learned counsel Shri P.B. Krishnan has confined his submission to interpretation of Rule 68 of the 2015 Rules. According to the learned counsel as per Rule 68 makes mining operations only by a mining plan which is a mandatory provision. We have already dealt with the question while deciding issue No. VIII and this Writ Petition thus has to be decided accordingly. 76. We come to Group-II Writ Petitions, which have been filed by various petitioners praying for stay of quarrying activities by different private respondents who had obtained quarrying permit/mining lease/mining permits. In the Writ Petitions it has been pleaded that private individuals are carrying mining operations in violation of the judgment of the Apex Court in Deepak Kumar's case (case) as well as Government Order dated 14.09.2006 and the order passed by the Government of India, Ministry of Environment and Forests. We have considered all the issues as noted above and we are of the view that interest of justice would be served in giving liberty to all the petitioners and private respondents to approach the....
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....ate Government and directed the Government to pass fresh order. Now the Government has passed a fresh order on 19.02.2014 whereby the Government held that quarrying lease would stand cancelled. The Government in its order noted that property is lying in the midst of reserved forest covered with variety of endemic flora and fauna. It was further held that land in this area is covered by Aryankavu Village, which is one of the 123 Villages notified as EFA in the Kasthurirangan Report. The Forest Department from the very beginning raised objection regarding running of the quarry. The Village having been included in one of the Villages of 123 Villages notified and the Forest Department of the State having not given no objection, the decision of the State Government in cancelling the lease cannot be faulted. 79. Group-V consists of two Writ Petitions and one Writ Appeal. Writ Petition No. 4662 of 2014 was filed challenging the order dated 26.06.2013 passed by the District Collector rejecting the application of the petitioner for no-objection certificate to manufacture bricks. Petitioner claimed that he is entitled to mine clay as per permit dated 20.02.2010. Interest of justice will b....
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....ares with regard to existing mining lease/mining permits on the date of judgment. Paragraph 29 of the judgment clearly directed that leases of minor minerals including their renewal for an area of less than five hectares be granted by the State/Union Territories only after getting environmental clearance. (v) Environmental clearance as contemplated by Notification dated 14.09.2006 required environmental clearance for new projects/new activities. (vi) The Notification dated 14.09.2006 having been applied vide order dated 18.05.2012 of the Government of India, Ministry of Environment and Forests all mining operations for new project and new activities for an area less than 5 hectares after 18.05.2012 required environmental clearance carried through either a mining lease or mining permit. (vii) Interim order passed by the Apex Court on 27.01.2012 was intended by the Supreme Court to operate till the Rules have been framed by the States taking into consideration the guidelines and recommendations of the Ministry of Environment and Forests. (viii) As per Rule 68 no mining/quarrying operations can be permitted without there being an approved mining pla....