TMI Blog2009 (5) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... the above Area. It is true that, complete ban was imposed on mining Aravalli hills vide Order dated 29/30.10.2002, which came to be modified by Order dated 16.12.2002 and it is equally true that, vide judgment in M.C. Mehta case [ 2004 (3) TMI 817 - SUPREME COURT] , this Court observed that it was not suggesting a complete ban on mining operations so long as it is possible to undertake mining operations on the sustainable development principle (see para 57). At the same time, in paras 89 and 96(6) of the judgment dated 18.3.2004 this Court specifically suggested that if degradation of environment continues and reaches the stage of no return, this Court may consider closure of mining activities. In other words, a gateway was provided for this Court to impose the ban in future if degradation of environment becomes irreversible. We make it clear that by this Order the ban will not be confined only to 5 km. but it would cover the entire Aravalli Hill range within the State of Haryana in which mining operations are being carried out. (i.e. area admeasuring approximately 448 sq. kms. falling in the Districts of Faridabad and Gurgaon including Mewat.) Environment and ecology ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oEF and CEC is prepared in accordance with the statutory provisions contained in various enactments enumerated as well as in terms of the Rules framed thereunder and the Guidelines. The said Plan shall state what steps are needed to be taken to rehabilitate (including reclamation) followed by Status Reports on steps taken by the Authorities pursuant to the said Plan. - K.G. Balakrishnan Dr. Arijit Pasayat and S.H. Kapadia For the Appellant: Ranjit Kumar, Sr. Adv. (A.C.), Siddhartha Chowdhury, Adv. (A.C.), A.D.N. Rao, Adv. (A.C.), Kamal Gupta, Adv. (A.C.) and Party-in-Person (NP For the Respondents: Naresh Kaushik, Rupesh Kaushik, Lalitha Kaushik, Advs., Mohan Parasaran, ASG, S.W.A. Qadri, M.P.S. Tomar, S.N. Terdal, Kiran Bhardwaj, A. Deb Kuraar, Advs. for Anil Katiyar, Adv., D.N. Goburdhan, Geeta Luthra, Vijay Panjwani, Advs., Anil B. Diwan, Sr. Adv., Dhruv Mehta, Yashraj Singh Deora, Mohit Abraham, Advs. for K.L. Mehta, Co. in I.A. No. 1967, S.B. Upadhyay, Sr. Adv., Pawan Upadhyay, Ankit Shah, Anisha Upadhyay, Advs. in I.A. No. 2381, S. K. Dubey, K.V. Mohan, K.V. Thakur, Advs. in I.A. Nos. 2385 and 2186, Surat Singh, Jagdev Singh, Partikha Chopra, Arun Kr. Beriwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling in the Districts of Faridabad and Gurgaon including Mewat) predicted in para 89 of the Judgment in M.C. Mehta case AIR2004SC4016 come about so as to warrant total stoppage of mining activity as stated in para 96(6) of the said judgment; and if so, what should be the duration of such ban/stoppage? 2. In this connection, at the very outset, we quote paras 89 and 96(6) of the said judgment, which read as follows: 89. It may be reiterated that if, despite stringent conditions, the degradation of environment continues and reaches a stage of no-return, this Court may have to consider, at a later date, the closure of mining activity in areas where there is such a risk. 96(6) The Aravalli hill range has to be protected at any cost. In case despite stringent conditions, there is an adverse irreversible effect on the ecology in the Aravalli hill range area, at a later date, the total stoppage of mining activity in the area may have to be considered. For similar reasons such step may have to be considered in respect of mining in Faridabad district as well. 3. History of the relevant Orders passed by this Court: (i) On 6.5.2002 the following Order was passed: I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its given. The State of Haryana will also explain on the next date of hearing as to whether royalty payable to the villages has been given or not. To come up on 25.11.2002. (iv) On 16.12.2002 the following Order was passed: IAs 828, 833, 834-835, 837-838, 839, 840, 846 847 One of the aforesaid applications has been filed by the State of Rajasthan seeking modification or clarification to the effect that the order dated 29/30th October 2002 would be applicable only to illegal mines in the Aravalli hills. IA 840 has been filed by M/s. Gurgaon Sohna Mineral and Anr. seeking similar relief. Applications have also been filed by State of Haryana and other parties. We have heard learned Counsel . On 29th/30th October, 2002 this Court prohibited and banned the mining activities in the entire Aravalli hills . This ban, it was directed, is not limited only to the hills encircling Kote and Alampur villages but extends to the entire hill range of Aravalli from Haryana to Rajasthan. The Chief Secretary, State of Haryana and State of Rajasthan were directed to ensure that no mining activity in the Aravalli hills is carried out, especially in that part which has been regarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands are or were recorded as Forest in Government records even if the notification period has expired, unless there is approval under the FC Act. Learned Attorney General and Solicitor General will assist the Court on the aforesaid aspects on the next date of hearing. In respect of suggestion 7 and 8, the Union of India will respond on the next date of hearing. The order dated 29/30th October, prohibiting and banning the mining activity in Aravalli hills from Haryana to Rajasthan is modified insofar as the State of Rajasthan is concerned to the following effect: Wherever requisite approval/sanctions in the said State have been obtained under FC Act and EP Act, and the mining is not prohibited under the applicable Acts or notifications or orders of the Court, mining can continue and to such mining the order aforesaid will not apply. This order will be applicable to non-forest land covered for the period prior to the date of modification of the order dated 29th November 1999 in the State of Haryana. This variation will not apply to the area in the Alampur District in the State of Haryana. List the matter on 7th February, 2003 at 2 O'Clock. (emphasis su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity could be carried out without remedial measures being taken and for that purpose, it was necessary that EIA had to be done before any mining activity could be permitted. (see AIR2004SC4016 ). 6. At this stage, one event needs to be highlighted. The powers vested in the Central Government in terms of Notification dated 7.5.1992 were delegated to State Government concerned, namely, Rajasthan and Haryana, vide Notification dated 29.11.1999. But the delegation in favour of the State stood withdrawn when it was found that most of the mines in the State were operating in violation of Approved Plans. In most cases, mining operations were carried out unscientifically with the sole aim of maximizing profits which resulted in indiscriminate scattering of the overburden, wasteful manner of mining with complete disregard to mineral conservation aspect, rendering reclamation of mined area impossible. This Court further found that mining leases were granted by the State in areas where plantations were undertaken with the financial assistance provided by international donor agencies. That, mining was permitted in a manner which was destroying the groundwater table as also causing irrepar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ete ban on mining as it generates revenue for the State. However, vide para 89, a warning was given that if despite imposition of stringent conditions, the degradation of environment continuous and reaches a stage of no-return, then this Court may have to consider at a later date the closure of mining activity. This prediction has come true. The consequence is that the State now has decided to close the mining activity. Para 89 is also important from another angle. The judgment in M.C. Mehta case (supra) has left it to this Court to consider at a later date the closure of mining activity. Even in para 96(6), this Court observed that mining activity can be permitted only on the basis of sustainable development and on compliance with stringent conditions as the Aravalli Hill Range has to be protected at any cost and in case despite stringent conditions, mining results in an irreversible consequence on the ecology in the said area then at a later date the total stoppage of mining activity may have to be considered. In other words, in the judgment of this Court in M.C. Mehta case (supra) decided on 18.3.2004, a window was left open for this Court to impose complete ban on mining op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purview of Section 2(ii) of Forest (Conservation) Act, 1980. It applies to mining leases. It is important to note that in order to operate mining inside the forest area, the lessee is required to possess clearances under Mines and Minerals (Development and Regulation) Act, 1957 ( 1957 Act ); under Section 2(ii) of Forest (Conservation) Act, 1980; and to Environment Clearance under EIA Notification which applies to mining of major minerals and to the areas exceeding 5 hectares. In case of mining projects, a Site Clearance is also required which is issued either by the Central Government or the State Government depending upon the area of land let out on lease. Further, Section 2(ii) of Forest (Conservation) Act, 1980 prohibits grant or renewal of mining lease without prior approval of Central Government. (b) Mining Plan: 9. Mining plan is prepared with the object of providing a systematic working of mine after considering every aspect of the background information, plant, machinery, method of working, object of mining, mining operations and reclamation of mined out areas. It is a mandatory document comprising information about leasehold area showing nature and extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. At this stage, one point needs to be highlighted. Over the years, the focus was on individual mining leases. Over the years, this Court tried to balance mining operations vis-a-vis environmental protection. Even after noticing non-compliance of above Rules as far back as 2004, this Court, after sounding a warning to the existing mines to comply with the Rules, did not suggest a complete ban on mining operations so long as it was possible to undertake such operations on the principles of sustainable development. However, the position did not improve. The position worsened. In the circumstances, the Court has now decided not to focus only on individual sites but to take a macro view of the matter, particularly while deciding the question of suspending mining operations. The Court is required to take a holistic view. It is important to note that most of the Applicants who are seeking to mine today in the virgin areas have mined out areas in the past without taking remedial measures. They have abandoned the sites after mining without rehabilitation of the degraded lands and the consequence is devastation. As stated above, in 2004 this Court detected many cases where operations were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument. To decide this point, we quote hereinbelow para 8 of the Order dated 13.4.2006 reported in (2006)11SCC582 : We have examined the orders dated 6.5.2002, 29/30.10.2002, 16.12.2002, the judgment dated 18.3.2004 in M.C. Mehta and affidavits placed on record. It seems clear that the order dated 6.5.2002 was confined to the limit of 5 km and did not prohibit mining in the entire Aravalli hills in the State of Haryana. The mining in the entire Aravalli hills was prohibited and banned by the order dated 29/30.10.2002. This order was, however, modified and clarified on 16.12.2002. 14. We also quote para 96 of the judgment in M.C. Mehta case (supra) which reads as follows: a) no mining can be carried out where the mine owners have reached the water table. (In fact this Court recorded in para 84 the undertaking given by mine lessees not to mine in the area where water table had been reached during mining). (b) no mining can be carried on in areas which are subject matter of notifications under Section 4 and/or 5 of the Punjab Land Preservation Act, 1900. However, even in these areas mining can take place after seeking permission under Section 2 of the Forest (Conservati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed violation by leaseholders and after extensive analysis of the provisions of 1957 Act observed that the Court needs to balance the twin objectives of mining based on the principle of sustainable development. According to the learned Counsel, even under various reports submitted by CEC, the Committee did not recommend a ban on mining within 5 km. but it recommended a ban up to 2 km from Badkhal Lake. However, EPCA recommended a ban of 5 km from Delhi-Haryana border, which according to the learned Counsel, came to be rejected by this Court by issuing directions, as mentioned hereinabove. It is further pointed out that apropo the directions contained in the judgment in M.C. Mehta case (supra) the Monitoring Committee inspected the mines. There was difference of opinion between the members. The official members of that Committee, however, recommended resumption of mining activities according to the guidelines laid down in the above judgment in M.C. Mehta case (supra). In short, it was submitted on behalf of the lessees that at no point of time this Court suggested or recommended or imposed ban of mining operations even after noticing non-compliance of the Rules. Therefore, accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingent conditions, the degradation of environment continues and reaches a stage of no return then the Court may consider closure of mining activity in the area. Over the years, this Court has given latitude to user agencies with the hope that they would comply with stringent conditions including taking of remedial measures but that hope stands belied. Hence, we find no merit in the above contentions advanced on behalf of Sethi Brothers. We make it clear that by this Order the ban will not be confined only to 5 km. but it would cover the entire Aravalli Hill range within the State of Haryana in which mining operations are being carried out. (i.e. area admeasuring approximately 448 sq. kms. falling in the Districts of Faridabad and Gurgaon including Mewat.) 18. On the legal parameters, Shri Diwan and Shri Venugopal, learned senior counsel and Shri S.K. Dubey, learned Counsel, submitted that where law requires a particular thing to be done in a particular manner, it must be done in that manner and other methods are strictly forbidden. In this connection, it was urged that when Section 4A postulates formation of an opinion by the Central Government, after consultation of the State G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in the above Area on Sustainable Development Principle which is part of Articles 21, 48A and 51A(g) of the Constitution of India. In fact, these Articles have been extensively discussed in the judgment in M.C. Mehta's case (supra) which keeps the option of imposing a ban in future open. Mining within the Principle of Sustainable Development comes within the concept of balancing whereas mining beyond the Principle of Sustainable Development comes within the concept of banning . It is a matter of degree. Balancing of the mining activity with environment protection and banning such activity are two sides of the same principle of sustainable development. They are parts of Precautionary Principle. 20. At this stage, we may also note that under Section 13(2)(qq) of 1957 Act, Rules have been framed for rehabilitation of flora and other vegetation destroyed by reason of any prospecting or mining operations. Under Section 18 of the 1957 Act, Rules have been framed for conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling pollution caused by prospecting or mining operations which also form part of Mineral ..... X X X X Extracts X X X X X X X X Extracts X X X X
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