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2013 DIGILAW 821 (PNJ)

Rajbir Singh v. Union of India

2013-07-04

G.S.SANDHAWALIA, JASBIR SINGH

body2013
JUDGMENT Jasbir Singh, J. (Oral) This order will dispose of 11 writ petitions viz. Civil Writ Petition Nos. 17664, 20376, 20397, 20403, 20404, 20405, 20409, 20620, 20735, 21070 and 22321 of 2012, filed by Rajbir Singh, Naresh Kumar & Others, Rattan Singh & Others, Mahmood Hasan & Others, Raj Kumar & Others, Karam Singh & Others, Gobinder Singh & Others, Gurmukh Singh & Others, Narinder & Others, Sanjeev alias Sanjay & Others and Madarsa Baitul Uloom, respectively. To dictate order, the facts are being taken from Civil Writ Petition No. 17664 of 2012. Survival of mankind depends upon protection of the nature and its resources. Playing with it may cause havoc as we have seen in the recent past. Despite many rules, regulations and directions issued from time to time, greed of the individuals has not decreased and they are exploiting the nature with impunity. It has to be stopped, otherwise the future generation will accuse us of inaction. This writ petition has been filed to lay challenge to the notices dated 14.8.2012 (Annexure P1) vide which State of Haryana wished to put to auction many blocks of land in District Mahendergarh for extraction of minor minerals. Similar notifications qua other districts in the State of Haryana, issued from time to time, are also under challenge. We have heard counsel for the parties. It is primary contention of counsel for the petitioners that before putting the land blocks to auction for extraction of minor minerals, the State is duty bound to get clearance from respondent No.1-Ministry of Environment & Forests, Government of India to undertake the exercise mentioned above. To buttress the above said argument, reliance has been placed upon ratio of judgment in the case Vijay Bansal and Others v. State of Haryana and Others 2009 (2) ILR (Punjab) 503. That writ petition was decided on 15.5.2009 (Annexure R7). The order was challenged by the State of Haryana only in the month of June 2013 i.e. after about four years. Prior thereto, a challenge was laid by the Ministry of Environment & Forests, Government of India, to that judgment so far as some directions issued qua that ministry are concerned. Non filing of a petition for more than 3½ years shows concern of the State so far as environment protection is concerned. Prior thereto, a challenge was laid by the Ministry of Environment & Forests, Government of India, to that judgment so far as some directions issued qua that ministry are concerned. Non filing of a petition for more than 3½ years shows concern of the State so far as environment protection is concerned. In Vijay Bansal’s case (supra), indiscriminate and callous mining operation was brought the notice of the Court which was going on, in the lower Shivalik Hills in District Panchkula, to show that extraction of minor minerals was in progress without complying with the terms & conditions of the notification issued by the respondent No.1 on 14.9.2006 (Annexure P2). Vide the notification mentioned above, Ministry of Environment & Forests, Government of India, issued instructions in terms of sub-rule (3) of Rule 5 of the Environment (Protection) Rules 1986, to impose restrictions and prohibitions on new projects/activities, on the expansion and modernization of the existing projects and the activities, based on their potential environment impacts as indicated in the Schedule annexed to the above notification. The said terms & conditions were elaborately dealt with in Vijay Bansal’s case (supra) and after noting down the objections filed by the State of Haryana, a Division Bench of this Court issued the following directions :- “(i) the lands/areas forming part of the notification under section 3 of the Punjab Land Preservation Act, 1900 and in respect of which restrictions have been imposed under Section 4 of the said Act are declared to be “forest lands” for the purposes of the Indian Forest Act, 1927 and the Forest (Conservation) Act, 1980. It is, accordingly, directed that these areas shall not be used for 'non forest purposes' including the mining of 'major' or 'minor’ minerals; (ii) Notification dated 14.9.2006 issued by the Central Govt. in exercise of its powers under the Environment (Protection) Act, 1986 governs all the 'mining activities' irrespective of the fact that the 'minerals' are 'major' or 'minor' and is, thus, fully applicable in respect of the 'mining areas' in the Shivalik ranges of Himalayas, including those falling in District Panchkula. No mining activity shall be carried out in these areas without the ‘prior environmental clearance’, save beyond the maximum period granted hereinafter for obtaining such 'prior environmental clearance'. No mining activity shall be carried out in these areas without the ‘prior environmental clearance’, save beyond the maximum period granted hereinafter for obtaining such 'prior environmental clearance'. (iii) the State of Haryana and the State Level Expert Appraisal Committee are directed to enforce the Notification dated 14.9.2006 qua all the ‘mining areas’ and monitor the mining operations regularly and vigorously so as to bring them in conformity with the terms and conditions imposed while granting the prior environmental clearance; (iv) Notification dated 14.9.2006 is directed to be applied qua those ‘mining areas’ also where the ‘mining activities’ used to be undertaken prior to its issuance and every new contract/licence/lease permitting the ‘mining’ shall be taken as a ‘new activity’ for the purpose of the said notification; (v) it is also directed that wherever the 'total mining area' is a homogeneous or otherwise identifiable piece of 50 hectares or above, the Notification dated 14.9.2006 shall be enforceable even if such mining area has been divided into zones or quarrying plots of smaller sizes. (vi) the State of Haryana is directed to apply to the ‘Expert Appraisal Committee’ for determining the Terms of Reference (TOR) and get the Environment Impact Assessment Report (EIAR) prepared for the entire ‘mining area’ falling within the fragile Shivalik ranges of Himalayas and then complete the process of 'public consultation', prescribed as Stage No.III in the Central Govt. notification dated 14.9.2006 and thereafter get a final Environment Impact Assessment Report prepared. The State Government shall submit the application, complete in all respects, before 31st August, 2009; (vii) we also direct that no public auction shall be held and no licence/contract/lease or right for extraction of minerals from the Shivalik ranges of Himalayas shall be granted by the State of Haryana until the final ‘Environment Impact Assessment Report’ is prepared and made available as a public document to the prospective bidders; (viii) every successful bidder shall be required, and be under a legal obligation, to apply along with a copy of the final Environment Impact Assessment Report and obtain the 'prior environmental clearance', and then abide by the Terms and Conditions as may be imposed by the ‘Expert Appraisal Committee’. No lease/licence/contract shall attain finality unless ‘prior environmental clearance’ is granted and the project proponent undertakes the responsibility to comply with the terms and conditions as may be imposed by the Expert Appraisal Committee. No lease/licence/contract shall attain finality unless ‘prior environmental clearance’ is granted and the project proponent undertakes the responsibility to comply with the terms and conditions as may be imposed by the Expert Appraisal Committee. The Project Proponents/successful bidders shall apply for 'prior environmental clearance' within one month from the date of auction; (ix) the Govt. of Haryana shall be entitled to recover the expenditure incurred by it in the compliance of stage Nos.(I) to (III) (whichever is applicable) prescribed in the Central Govt. notification dated 14.9.2006 for obtaining the ‘prior environmental clearance’ including the expenditure incurred on 'public consultation' or the preparation of the tentative and/or final ‘Environment Impact Assessment Report’, proportionately from the successful bidders; (x) the Expert Appraisal Committee is directed to prepare the final Environment Impact Assessment Report (EIAR) within a period of six months from the date of receipt of the application from the State Government and thereafter to grant or reject the 'prior environmental clearance' within a period of two months from the date of receipt of the application of the project proponent/successful bidders; (xi) having regard to all the attending circumstances and to obviate varied hardships caused to the general public, labour and the State, we direct that the mining activities may continue till 28th February, 2010, however, only on the basis of the contract/licence granted to the highest bidders through a transparent ‘public auction’ held after wide publicity and subject to the terms and conditions, as are imposed while granting a five-year contract and further subject to strict compliance of such terms and conditions; (xii) we clarify that the State of Haryana shall not stand absolved of its legal obligation on mere successful accomplishment of the Fourth Stage enumerated in the Central Govt. notification dated 14.9.2006 and it shall continue to enforce the measures contained in the Forest Department’s notifications dated 27.11.1997 and 28.11.1997 (Annexures P-2 & P-3) issued under Sections 3 and 4 of the Punjab Land Preservation Act, 1990, respectively.” In the notification dated 14.9.2006 issued by Ministry of Environment & Forest, Union of India, many conditions have been imposed to stop environmental pollution. It provides for prior environmental clearance with regard to the projects/activities which are mentioned in Category A of the Schedule annexed with the above said notification. Establishment of the “State Level Environment Impact Assessment Authority” has also been provided. It provides for prior environmental clearance with regard to the projects/activities which are mentioned in Category A of the Schedule annexed with the above said notification. Establishment of the “State Level Environment Impact Assessment Authority” has also been provided. It also provides creation of Screening, Scoping and Appraisal Committees to make appraisal of the projects to be installed having affect on environment. Before granting permission to any project, it is envisaged to take action at four stages. First stage is the screening of an application to set up a project for environmental clearance. As per stage two, scope of the project has to be adjudged in terms of reference, addressing all the relevant environmental concerns for preparation of an Environment Impact Assessment. Stage three talks of public consultation to know impact of the project to be set up. Stage four deals with appraisal of an application and other documents through Expert Appraisal Committee or State Level Experts Appraisal Committees. Thereafter, the decision is to be taken whether the project will have any adverse impact on the environment or not. The consent or rejection will follow accordingly. In the directions issued in Vijay Bansal’s case (supra), being in tune with the above notification, it was stated that the land, which was reserved as per the provisions of the Indian Forest Act, 1927 and the Forest (Conservation) Act, 1980, be used only as per the provisions of the above said statutes. Notification dated 14.9.2006 was made applicable upon mining of major/minor minerals both. The State of Haryana and the State Level Expert Appraisal Committee was made responsible to enforce the provisions of above notification. The said notification was also made applicable in the area where mining activities were going on for granting extension and new leases etc. The conditions imposed vide that notification were made applicable for the area more than 50 hectares, when divided into small parcels. It was mandatory for the State of Haryana to apply to the “Expert Appraisal Committee” to look into the terms of reference for the purpose of preparing Environmental Impact Assessment Report. It was also stated that the said report be made available to the public and also to the prospective bidders. The State of Haryana was to process the applications to set up a new project for mining etc. upto stage 3 as noticed in the above said notification. It was also stated that the said report be made available to the public and also to the prospective bidders. The State of Haryana was to process the applications to set up a new project for mining etc. upto stage 3 as noticed in the above said notification. As per direction No. (x), on receipt of an application from the State Government, Expert Appraisal Committee was directed to prepare the Environmental Impact Report within six months. Issue of prior environmental clearance was to be decided within two months thereafter. Reading of the directions issued makes it very clear that it is the duty of the State Government to ensure that any mining area be put to auction only after getting environmental clearance and not otherwise. When notices were again issued for auction, without getting any environment clearance as is envisaged in the notification dated 14.9.2006, these writ petitions were filed in the month of September 2012. After completion of the pleadings, various interim orders were passed from time to time. The Union of India was directed to clear its stand as to who is to apply for environment clearance before starting of extraction of minor minerals, whether the State Government or the party to whom the block of land for mining is to be allotted. On 26.3.2013, the State counsel brought it to the notice of this Court that similar controversy is pending before the Supreme Court and it would be appropriate to await for the outcome of the Special Leave Petition in Vijay Bansal’s case (supra). The same stand was taken forgetting an adjournment on 16.5.2013. Today, it has been brought to the notice of this Court that Special Leave Petition, filed by the State of Haryana against the judgment rendered in Vijay Bansal’s case (supra), has not yet been listed for hearing as such no case is made to adjourn the matter further. We are of the opinion that it is not necessary for us to go into detail of the disputed facts which were elaborately discussed by a Division Bench of this Court in Vijay Bansal’s case (supra). The directions given in that judgment are very clear and cogent. We are of the opinion that it is not necessary for us to go into detail of the disputed facts which were elaborately discussed by a Division Bench of this Court in Vijay Bansal’s case (supra). The directions given in that judgment are very clear and cogent. It is also necessary to mention here that against the judgment dated 15.5.2009 rendered in Vijay Bansal’s case (supra), the State of Haryana filed an application for extension of time to do the needful as directed, however, that application was rejected. Without granting any extension, the following further directions were issued on 4.3.2011:- “8. Having heard the learned counsel for the parties and keeping in view the fact that the Hon'ble Supreme Court has already upheld the directions issued to the State of Punjab/its authorities to act as the Project Proponent in consistence with the view taken by this Court in Vijay Bansal's case (supra) and the fact that there is no interim direction issued by the Hon'ble Supreme Court in the SLP of the Union of India in that case and when the delay in non-implementation of the Notification dated 14.9.2009 is attributable to the Union of India and not to the Project Proponent State, who in turn is suffering both from the loss of revenue as well as the raw material, we reluctantly agree to modify the order dated 15.5.2009 to the extent of permitting the State of Haryana to grant short term mining contracts/permits through public auction only after giving wide publicity for a period upto 31.7.2011 as a one time measure.” It was specifically stated that the State of Haryana has to act as a Project Proponent. The view, so expressed by that Bench, was followed by another Division Bench of this Court in case Sandeep Sangwan v. Union of India and Others (Civil Writ Petition No. 11096 of 2011 (O&M), decided on 6.7.2011. Relevant portion of that order reads thus :- “10. In view of order of this Court in Vijay Bansal and order of the Hon’ble Supreme Court in Matsya Education and Rural Development Trust, the State cannot proceed with the grant of mining rights in pursuance of impugned notices until environmental clearance is granted in terms of notification dated 14.9.2006. Accordingly, we restrain the State from proceeding further with the impugned auction of mining rights. Accordingly, we restrain the State from proceeding further with the impugned auction of mining rights. However, the State would be at liberty to seek environmental clearance as already observed in the order of this Court in Vijay Bansal. Learned counsel for the State of Haryana states that necessary application has already been moved which was returned with certain objections. The State will be at liberty to resubmit its application and the application so made shall be dealt with by the concerned authorities as per direction already issued in Vijay Bansal, with further clarification that the State of Haryana will be at liberty to follow such modified procedure as may be permitted by the concerned authorities specified in the notification dated 14.9.2006.” It was ordered that the State Government has no authority to put the blocks for auction to extract minor minerals without getting necessary environment clearance. It was also so said by the Supreme Court in its order passed on 27.2.2012 in Deepak Kumar and Others v. State of Haryana and Others (2012) 4 Supreme Court Cases 629. Relevant portion of that order reads thus :- “27. The State of Haryana and various other States have not so far implemented the above recommendations of the MoEF or the guidelines issued by the Ministry of Mines before issuing auction notices granting short term permits by way of auction of minor mineral boulders, gravel, sand etc., in the river beds and elsewhere of less than 5 hectares. We, therefore, direct to all the States, Union Territories, MoEF and the Ministry of Mines to give effect to the recommendations made by MoEF in its report of March 2010 and the model guidelines framed by the Ministry of Mines, within a period of six months from today and submit their compliance reports. 28. Central Government also should take steps to bring into force the Minor Minerals Conservation and Development Rules 2010 at the earliest. State Governments and UTs also should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its Report of March 2010 and model guidelines framed by the Ministry of Mines, Govt. of India. State Governments and UTs also should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its Report of March 2010 and model guidelines framed by the Ministry of Mines, Govt. of India. Communicate the copy of this order to the MoEF, Secretary, Ministry of Mines, New Delhi, Ministry of Water Resources, Central Government Water Authority, the Chief Secretaries of the respective States and Union Territories, who would circulate this order to the concerned Departments. 29. We, in the meanwhile, order that leases of minor mineral including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from the MoEF. (Emphasis supplied). To overcome the directions issued to the State of Haryana from time to time by this Court and also by the Supreme Court, reliance has been placed upon amended notification issued by the Ministry of Environment & Forests, Government of India, dated 4.4.2011 (Annexure R1). In the original notification issued on 14.9.2006 (Annexure P2), relevant clauses which deal with moving of an application for getting environment clearance reads thus :- “2. Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance form 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 change in product – mix in an existing manufacturing unit included in Schedule beyond the specified range. 3. XXX XXX XXX XXX XXX XX 4. 3. XXX XXX XXX XXX XXX XX 4. Categorization of projects and activities :- (i) All projects and activities are broadly categorized in to two categories – Category A and Category B, based on the spatial extent of potential impacts and potential impacts on human health and natural and man made resources. (ii) All projects or activities included as Category 'A' in the Schedule, including expansion and modernization of existing projects or activities and change in product mix, shall require prior environmental clearance from the Central Government in the Ministry of Environment and Forests (MoEF) on the recommendations of an Expert Appraisal Committee (EAC) to be constituted by the Central Government for the purposes of this notification; (iii) All projects or activities included as Category 'B' in the Schedule, including expansion and modernization of existing projects or activities as specified in sub paragraph (ii) of paragraph 2, or change in product mix as specified in sub paragraph (iii) of paragraph 2, but excluding those which fulfill the General Conditions (GC) stipulated in the Schedule, will require prior environmental clearance from the State/Union territory Environment Impact Assessment Authority (SEIAA). The SEIAA shall base its decision on the recommendations of a State or Union territory level Expert Appraisal Committee (SEAC) as to be constituted for in this notification. In the absence of a duly constituted SEIAA or SEAC, a Category 'B' project shall be treated as a Category 'A' project; 5. XXX XXX XXX XXX XXX XX 6. Application for Prior Environmental Clearance (EC) :- An application seeking prior environmental clearance in all cases shall be made in the prescribed Form 1 annexed herewith and Supplementary Form 1A, if applicable, as given in Appendix II, after the identification of prospective site(s) for the project and/or activities to which the application relates, before commencing any construction activity, or preparation of land, at the site by the applicant. The applicant shall furnish, along with the application, a copy of the pre-feasibility project report except that, in case of construction projects or activities (item 8 of the Schedule) in addition to Form 1 and the Supplementary Form 1A, a copy of the conceptual plan shall be provided, instead of the pre-feasibility-report. 7. The applicant shall furnish, along with the application, a copy of the pre-feasibility project report except that, in case of construction projects or activities (item 8 of the Schedule) in addition to Form 1 and the Supplementary Form 1A, a copy of the conceptual plan shall be provided, instead of the pre-feasibility-report. 7. Stages in the Prior Environmental Clearance (EC) Process for New Projects:- 7(i) The environmental clearance process for new projects will comprise of a maximum of four stages, all of which may not apply to particular cases as set forth below in this notification. These four stages in sequential order are :- State (1) Screening (Only for Category 'B' projects and activities) Stage (2) Scoping Stage (3) Public Consultation Stage (4) Appraisal. SCHEDULE (See Paragraph 2 and 7) LIST OF PROJECTS OR ACTIVITIES REQUIRING PRIOR ENVIRONMENTAL CLEARANCE Project or Activity Category with threshold limit Conditions if any A B 1 Mining, extraction of natural resources and power generation (for a specified production capacity) 1 2 3 4 5 (1)a Mining of minerals = 50 ha. of mining lease area Asbestos mining irrespective of mining area < 50 ha = 5 ha. of mining lease area General Condition shall apply Note Mineral prospecting (not involving drilling) are exempted provided the concession areas have got previous clearance for physical survey. In the amended notification, it is stated that instead of the words “An application seeking prior environmental clearance in all cases shall be made”, be substituted as “An application seeking prior environmental clearance in all cases shall be made by the project proponent.” It is stated that in view of the amendment, after allotment of the land blocks, it was for the lessee/project proponent to get environmental clearance. We are not agreeable with the arguments raised by the Advocate General, Haryana. Specific directions were given in Vijay Bansal’s case (supra). Various stages have been fixed to put the land blocks to auction for extracting minor minerals. Unless those formalities are met with by the State, the land blocks cannot be put to auction. Furthermore, amendment in the original notification, which was issued on 4.4.2011 would have been shown to the Supreme Court when specific directions were issued regarding environment clearance on 27.2.2012 in Deepak Kumar’s case (supra). Unless those formalities are met with by the State, the land blocks cannot be put to auction. Furthermore, amendment in the original notification, which was issued on 4.4.2011 would have been shown to the Supreme Court when specific directions were issued regarding environment clearance on 27.2.2012 in Deepak Kumar’s case (supra). In that order, it was specifically stated that all the States, Union Territories, Ministry of Environment & Forests and the Ministry of Mines were to give effect to the recommendations made by the Ministry of Environment & Forests in its report of March 2010 and the model guidelines framed by the Ministry of Mines, within a period of six months. It was also ordered that lease of land to extract minor minerals including renewal of lease for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from Ministry of Environment & Forests. The directions issued by the Supreme Court in that case are very clear. It cannot be presumed that the Supreme Court was not aware regarding any amendment made in the year 2011 on which reliance has been placed. Furthermore, without granting order for extension of time sought by the State of Haryana, a Division Bench of this Court in order dated 4.3.2011 has specifically held that as per the directions issued by the Supreme Court, the State is to act as a project proponent in case of leasing out of land blocks of minor minerals. Further, a perusal of the amendment dated 4.4.2011 rather strengthens the case of the petitioner since reading of it would go on to show that it pertains to clarification made regarding the prior environmental clearance to be taken in case of built up area and highway projects. The amendment in paragraph 6 of the notification whereby the onus had been put on project proponent pertains to Clause 6 only. Rather against item 1(a) in Column (5) which specifically pertains to mine and minerals it has been specifically mentioned that prior environmental clearance would be required at the stage of renewal of mine lease and the said amendment reads as under :- “(i) against item 1(a):- In column (5), for the entries, the following entries shall be substituted, namely:- “General conditions shall apply. Note:- (i) Prior environmental clearance is as well required at the stage of renewal of mine lease for which application should be made up to one year prior to date of renewal. (ii) Mineral prospecting is exempted.” Thus, no amendment was made absolving the prior approval for auction of mine lease as has been contended by the State. Counsel for Union of India has also stated that as per directions issued from time to time, it is the State Government which will act as project proponent not the lessee. In view of the facts mentioned above, we allow all these writ petitions. Notices dated 14.8.2012 (Annexure P1/Colly.) stand quashed. Liberty is granted to the State Authorities to apply for environmental clearance as per the directions issued in Vijay Bansal’s case (supra) or they may approach the Supreme Court for necessary directions/clarifications by moving an application in Deepak Kumar’s case (supra) in which the matter is still pending.