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2002 DIGILAW 341 (PNJ)

Major General Y. K. Yadav v. Union of India

2002-03-25

BAKHSHISH KAUR, G.S.SINGHVI

body2002
JUDGMENT G.S. Singhvi, ACJ. - This is the second round of litigation by the petitioners who are deeply concerned about the widespread damage caused to the ecology and environment in the parts of District Gurgaon due to unchecked mining operations being carried out by the apparent connivance of the State Government. They had earlier filed C.W.P. No. 7495 of 1996 for issuance of a writ in the nature of mandamus to the Union of India to implement notification dated 7.5.1992 issued under Section 3(1) read with Section 3(2)(v) of the Environment (Protection) Act, 1986 (for short, the Act) and also sought an injunction against mining operations being carried out by the private respondents at Rozka Gujjar. During the pendency of that petition, the Government of India rejected the application filed by one of the respondents, namely M/s Arya Rozka Minerals for the grant of environmental permission for mining of silica sand. The Court took cognizance of the said decision and the statement made by the counsel representing the State of Haryana that lease granted to another respondent had been cancelled and disposed of the writ petition as infructuous. 2. In this petition, the petitioners have prayed for quashing of notification dated 27.7.2001 (Annexure P.10) issued by the Commissioner and Secretary to Government Haryana, Mines and Geology Department inviting applications for grant of mining leases at various places in the State including village Rozka Gujjar and auction notice dated 12.10.2001 (Annexure P.11) by contending that in the absence of Environment Management Plan, the State Government cannot grant leases under the Mines and Minerals (Regulation and Development) Act, 1957 read with Punjab Mines Minerals Concession Rules, 1964 (for short, the Rules), as applicable to the State of Haryana. They have averred that the exercise undertaken by the State Government for grant of mining leases is ultra vires to notification dated 7.5.1992 issued by the Government of India prohibiting the mining operations in the area. 3. In the written statement filed on behalf of respondent No. 1, it has been averred that the request made by M/s Arya Rozka Gujjar for mining silica sand at Village Rozka Gujjar, Tehsil Sohana, District Gurgaon was examined by the Ministry of Environment and Forests and the case ws closed on 14.10.1999 because the applicant did not fulfil the conditions laid down by the Government of India. It has been further averred that the power vested in the Central Government to take measures for protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution have been delegated to the Governments of Haryana and Rajasthan vide notification dated 29.11.1999 (Annexure R.1/2) and appropriate action in this respect is to be taken by the Committees referred to in Schedule-I of the said notification. 4. In the written statement filed on behalf of the Government of Haryana (respondent No. 4), it has been averred that the mining lease for silica sand was initially granted to Shri Vivek N. Bhaskar on 29.9.1981 for a period of 10 years in respect of 822 hectares of land. After some time, he surrendered 723.43 hectares and retained only 98.5 hectares. Likewise, Haryana Minerals Ltd. was granted mining lease over an area of 414.45 hectares for a period of 10 years commencing from 13.8.1988. The said lease was renewed for a further period of 10 years, but after operating the mines for 12 years, the said lessee surrendered the lease. Thereafter, notification dated 22.12.2000 was issued under Rule 59 of the Rules inviting applications from general public for various parcels of land including plots No. 6 to 9 at Rozka Gujjar. However, no lease was granted in the wake of policy decision taken by the State Government on 28.9.2001 not to grant mining leases for silica sand. After about one year, notice dated 12.10.2001 was issued for auction of plots No. 6 to 9 at Rozka Gujjar. According to respondent No. 4 the successful bidder will have to submit Environment Management Plan as required by notification dated 7.5.1992 and mining operations can be commenced only after approval of the plan by the Expert Committee constituted vide notification dated 20.6.2002. It has been further averred that for the purpose of preservation of environment in the area, Town and Country Planning Department of the State had prepared a draft master plan for Gurgaon District. 5. In its written statement, Haryana Pollution Control Board has averred that it will comply with the direction, if any, given by the Court or any other competent authority in the matter of preparation of Environment Development Plan. 6. 5. In its written statement, Haryana Pollution Control Board has averred that it will comply with the direction, if any, given by the Court or any other competent authority in the matter of preparation of Environment Development Plan. 6. Shri Shailendra Jain argued that the proposed auction of mining leases for the area falling in Village Rozka Gujjar should be declared illegal and violative of the prohibition contained in notification dated 7.5.1992 read with notification dated 29.11.1999 because the State Government has not prepared Master Plan as required by paragraph 2 of notification dated 29.11.1999. He pointed out that in terms of the notification dated 7.5.1992, prior permission of the Central Government was sine qua non to the undertaking of mining operations in the area in question and after 29.11.1999, the State Government can give permission only after finalisation of the Master Plan which it has failed to do. Learned counsel then submitted that mining operations already undertaken has caused immense damage to ecology and environment of the area, inasmuch as, all the sources of re-charging Dam Dama Lake have been blocked and green belt has been destroyed and argued that the government should be restrained from granting new leases or renewing the existing leases in furtherance of the impugned notification and auction notice. 7. Shri Gurpreet Singh submitted that in view of notification dated 29.11.1999, decision on the question of granting mining lease in the area as required to be taken by the State Government on the recommendations of the Committee envisaged under Schedule-I of the said notification and this has to be done in conformity with the Master Plan prepared in terms of paragraph 2 of that notification. 8. Shri Jaswant Singh referred to Clause (11) of the auction notice to show that mining operation can be started by the successful bidder only after approval of the Environment Management Plan and submitted that this should be treated as a complete safeguard against the possible de-gradation of the environment and ecology of the area. He, however, conceded that the State Government has not prepared the Master Plan as envisaged by paragraph 2 of notification dated 29.11.1999. 9. We have given serious thought to the respective arguments. He, however, conceded that the State Government has not prepared the Master Plan as envisaged by paragraph 2 of notification dated 29.11.1999. 9. We have given serious thought to the respective arguments. Paragraphs 1 and 2 of notification dated 7.5.1992 and paragraphs 1 to 3 of notification dated 29.11.1999, which have bearing on the prayer made by the petitioners, reads as under : "Paragraphs 1 and 2 of notification dated 7.5.1992. S.O. 319(E) - Whereas a notification under Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act, 1986 (29 of 1986) inviting objections against restricting certain activities in specified of Arvali Range which are causing environmental degradation in the Region was published in the Gazette of India Part-II, Sector 3, sub-section (ii) vide SO. 25(E) dated 9th January, 1992; And whereas, all objections received have been duly considered by the Central Government. Now, therefore, in exercise of the powers conferred by sub-section (i) and clause (v) of sub-section (2) of Section 3 of the Environment Protection Act, 1986 (29 of 1986) read with rule 5 of the Environment (Protection) Rules, 1986 the Central Government hereby prohibits the carrying on of the following processes and operations, except with its prior permission in the areas specified in the Table appended to this notification :- (i) location of any new industry including expansion/modernisation. (ii) (a) All new mining operations including renewals of mining leases; (b) existing mining leases in sanctuaries/national park and areas covered under Project Tiger and/or (c) mining is being done without permission of the competent authority. (iii) cutting of tress; (iv) construction of any clusters of dwelling units, farms houses, sheds, community centres, information centres and any other activity connected with such construction including roads as part of any infrastructure relating thereto); (v) Electrification (laying of new transmission lines). 2. Any person who desires to undertake any of the above mentioned processes or operations in the said areas, shall submit an application to the Secretary, Ministry of Environment and Forests, New Delhi in the attached application form (Annexure) specifying inter-alia the details of the area and the proposed process or operation. He shall also furnish an Environment Impact Statement and an Environment Management Plan along with the application and such other information as may be required by the Central Government for considering the application. Paragraphs 1 to 3 of notification dated 29.11.1999 S.O. 1189(E). He shall also furnish an Environment Impact Statement and an Environment Management Plan along with the application and such other information as may be required by the Central Government for considering the application. Paragraphs 1 to 3 of notification dated 29.11.1999 S.O. 1189(E). In exercise of the powers conferred by Section 23 of the Environment (Protection) Act, 1986 (29 of 1986), (hereinafter referred to as the said Act), read with sub-rule (4) of Rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby delegates the powers conferred on it to take measures for protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution to be exercised also by the State Governments as notified in the notification of the Government of India in the Ministry of Environment and Forests S.O. No. 319(E) dated 7th May, 1992 subject to certain conditions which are as follows :- (i) the State Governments concerned, namely, Haryana and Rajasthan shall constitute an Expert Committee for each State as per the composition given in the Schedule-I annexed to this notification. (ii) each State Government shall also constitute a Monitoring Committee, under the Chairmanship of the District Collector concerned (Gurgaon in Haryana and Alwar in Rajasthan) as given in the Schedule-II appended to this Notification which shall inter alia monitor the compliance of the conditions stipulated while according environmental clearance by such State Governments and report to such State Government about the violations, if any, and the action taken thereon. (iii) the District Collectors of Gurgaon in Haryana and Alwar in Rajasthan shall be authorised by the respective State Governments to take necessary action under Section 5 of the said Act in respect of cases where the project proponents fail to implement the conditions. 2. the State Government concerned shall initiate steps to prepare a Master Plan for the development of the area covered by the Notification S.O. 319(E) dated 7th May, 1992 integrating environmental concerns and keeping in view the future land use of the area. This Master Plan shall be prepared by the concerned state agency, approved by the competent authority and finally published within two years from the date of issue of this notification, in accordance with the procedure laid down in the Town and Country Planning Act or any other similar Act of the respective State Government. This Master Plan shall be prepared by the concerned state agency, approved by the competent authority and finally published within two years from the date of issue of this notification, in accordance with the procedure laid down in the Town and Country Planning Act or any other similar Act of the respective State Government. The State Government concerned shall implement the Master Plan forthwith after its final publication. 3. Any person desirous of undertaking any of the activities mentioned in the Notification No. 319(E) dated 7th May, 1992 shall submit an application to the Secretary, Department of Environment of the Government of Haryana/Rajasthan, as the case may be. The applicant shall also furnish environment impact statement and an environment management plan and such other information as may be prescribed by such State Governments. The application after due scrutiny shall be placed before the Expert Committee for its recommendations. Based on the recommendations of the Expert Committee, the Department of Environment in the State Government concerned shall take a final decision and convey the same to the applicant within three months from the date of receipt of application or when further information has been asked for from the applicant within three months from the date of receipt of such information." 10. A conjoint reading of the above extracted portions of the two notifications shows that till 28.11.1999, no mining operation could be carried out in the area except with the prior permission of the Central Government and while considering the application for grant of such permission the Central Government was required to keep in view the guide-lines issued by the Ministry of Environment and Forests from time to time. After 29.11.1999, the authority to grant permission for undertaking mining operation in the area covered by notification dated 7.5.1992 has been delegated to the State Governments of Haryana and Rajasthan subject to the rider that the concerned government shall constitute an Expert Committee as per the composition given in Schedule-I and also prepare and finalise Master Plan for the development of the area covered by notification dated 7.5.1992 within a period of two years from the date of notification, i.e., 29.11.1999 in accordance with the procedure laid down in the Town and Country Planning Act. Therefore, the mining lease could be granted subject to fulfilment of the criteria/conditions specified in the Master Plan. 11. Therefore, the mining lease could be granted subject to fulfilment of the criteria/conditions specified in the Master Plan. 11. In the present case, the State Government has not taken steps for preparation and finalisation of Master Plan in accordance with paragraph 2 of notification dated 29.11.1999. Therefore, the action initiated by it for grant of mining leases in respect of the areas covered by notification dated 7.5.1992 has to be treated as violative of the mandate of Section 3(1) read with Section 3(2)(v) of the Act and the two notifications issued by the Central Government. As a logical corollary to this, the actions taken by the government in furtherance of notification dated 27.7.2001 and auction notice dated 12.10.2001 are liable to be declared as nullity. 12. The argument of Shri Jaswant Singh that the condition incorporated in Clause (11) of the auction notice should be treated as sufficient safeguard against the possible damage to the ecology and environment is based on a misconceived assumption that the State Government can ignore the mandate of paragraph 2 of notification dated 29.11.1999 and grant leases without preparing Master Plan for the development of the area covered by notification dated 7.5.1992 and therefore, we are unable to accept his submissions. 13. In the result, the writ petition is allowed. Notification dated 27.7.2001 and auction notice dated 12.10.2001 are declared illegal and quashed in so far as they concern the area falling in Village Rozka Gujjar and the State Government is restrained from granting mining leases in respect of that area. 14. While parting with the case, we deem it proper to observe that even though the petitioners prayer is confined to the area falling in Village Rozka Gujjar, the State Government would be well-advised not to grant mining leases in respect of other areas because the infirmity attached to the proposed mining leases for Rozka Gujjar would also be attracted quo other areas. Petition allowed.