TMI Blog2015 (3) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... mining operation with effect from 10.02.1987 cannot be continued by a person holding any other mineral concession apart from mining lease. Judgment of the Apex Court in Deepak Kumar's case [2012 (2) TMI 656 - SUPREME COURT OF INDIA] did not contemplate environmental clearance for an area less than 5 hectares 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. Environmental clearance as contemplated by Notification dated 14.09.2006 required environmental clearance for new projects/new activities. 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. Interim order passed by the Apex Court on 27.01.2012 was intended by the Supreme Court to operate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irections contained in paragraph 82. (ii) All the Writ Petitions relating to Group - II, challenging quarrying operations by private individuals are disposed of with a direction to the District Collector to examine the right of quarrying owners/mining permit owners (private respondents) to carry mining operations and to issue necessary clarifications/clearance only after being satisfied that such mining operations are in accordance with the 2015 Rules as well as the observations made by this Court in the present case. (iii) Writ Petitions of Groups - III & IV (except WP(C). No. 7632 of 2014), by quarry owners as well as quarry owners seeking police protection are disposed of giving liberty to the petitioners to approach the District Collector for carrying on mining operations which clearance shall be issued by the District Collector only after being satisfied that they are entitled to carry mining operations as per the 2015 Rules and the observations made by this Court in the present case. (iv) W.P(C). No. 7632 of 2014 is dismissed upholding the order of State Government dated 19.2.2014 cancelling the quarry lease.5. - W.P.(C). Nos. 11488 and 19663 of 2013, 1566, 4434, 46 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been granted mining/quarrying lease/permit challenging different actions of individuals and State due to which they are unable to smoothly conduct the quarrying/mining operations. (IV) Writ Petitions which have been filed seeking police protection to conduct quarrying/mining. (V) Two miscellaneous Writ Petitions and one Writ Appeal. 3. The first group of Writ Petitions consists of 3 Public Interest Litigations, being W.P(C) Nos. 31148 of 2014, 20601 of 2014 and 4471 of 2015. Writ Petition No. 31148 of 2014 (All Kerala River Protection Council, Aluva v. State of Kerala and Others) is being treated as the leading Writ Petition among this group. It is necessary to note the pleadings and reliefs in the leading Writ Petition for considering and deciding the various issues raised in this bunch of Writ Petitions. Petitioner is an organisation registered with the main purpose of saving the environment of the State including all natural resources. This Public Interest Litigation claims to have been filed to protect the resources of the State from excessive mining operations being carried out in violation of the statutory provisions. It is pleaded that the excessive mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1967 Rules by Notification dated 01.07.2014 has also been referred to which provided that quarrying permit can be obtained for extraction of ordinary earth used for filling or leveling purposes in construction of embankments, roads, railways or buildings. Petitioner pleaded that if mining operations are carried out without conducting environment impact assessment, it will cause serious threat to the ecology of this God's own country. It is pleaded that present mining activities are being done causing severe damage to the ecology of the area. With the aforesaid pleadings, petitioner prayed for the following reliefs: (i) To issue a writ, direction or order in the nature of mandamus commanding respondents 1 and 2 to see that all quarrying operations in the Kerala State shall be permitted by lease by scrupulously following Exhibit P1 order in its letter and spirit. (ii) To issue a writ, direction or order in the nature of prohibition or such other appropriate writ, direction or order 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has renewed the licence of the 7th respondent against which the 1st petitioner has filed a statutory appeal under the Panchayat Raj Act vide Memorandum of Appeal dated 28.07.2014. Petitioners have prayed in the Writ Petition to quash Ext.P2 decision taken by the Panchayat to renew the licence for quarrying unit and further to command the 1st respondent Panchayat to stop functioning of the quarrying units of respondents 7 and 8. 7. The third Public Interest Litigation is W.P(C) No. 4471 of 2015 (Andrews K.J. v. State of Kerala and Others). Petitioner in this Writ Petition has referred to the 2015 Rules gazetted on 07.02.2015. Referring to the directions issued by the Apex Court in Deepak Kumar's case (supra) it is pleaded that environmental clearance can be obtained only on production of mining plan. Reference has been made to Office Memorandum dated 24.12.2013 issued by the Government of India, Ministry of Environment and Forests wherein it is made mandatory to obtain environmental clearance for all quarrying lease, irrespective of the extent of the lease area. Reply received under the Right to Information Act has been filed (Ext.P2) by which it was informed by the Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89 of 2014. All the Writ Petitions of this group have been filed by petitioners who pray for stopping quarry/mining operations by the respondents. Petitioners who are residents of different localities have raised objection regarding running of quarries which according to the petitioners are in violation of the directions of the Apex Court in Deepak Kumar's case (supra) and the directions issued by the Central Government. It was pleaded that no mining/quarrying operations can be continued without there being any environmental clearance. Learned Single Judge while hearing Writ Petition Nos. 4783, 6338 and 6361 of 2014 made a reference by order dated 12.03.2014 for hearing the said Writ Petitions by a Division Bench. It is sufficient to note the facts and pleadings in W.P(C) No. 6338 of 2014 to understand the nature of pleadings and prayers made in all the Writ Petitions of this group. 9. W.P(C) No. 6338 of 2014 (A. Abdul Kabeer and Another v. State of Kerala and Others) has been filed by the petitioners who claim to be the local residents of Arkannur desom who feel aggrieved by the illegal and unauthorised quarrying activities of building granite stones by respondents 9 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction directing respondents 1 to 5 and 7 and 8 not to allow respondents 9 and 10 to conduct quarrying operations 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, 119, 19/1 and 262/1 in Block 27 of Elamad Village, Kollam District except under valid quarrying lease and permit issued after approval of Mining Plan and Environmental Management Plan and after obtaining clearance from Ministry of Environment and Forests, as directed by the Honourable Supreme Court. (iii) Direct respondents 9 and 10 to stop illegal quarrying operations in Government land 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, 119, 19/1 and 262/1 in Block 27 of Elamad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion Bench. The issue on which the learned Single Judge sought authoritative pronouncement has been stated in paragraph 13 of the reference order. It is useful to quote paragraph 13 of the reference order: 13. In such circumstances, I am of the opinion that an authoritative pronouncement on the question whether even in the case of existing quarrying/mining permits environmental clearance from the competent authority, namely the Ministry of Environment and Forests, in respect of lands having an extent of more than 5 hectares and from the State Environmental Impact Assessment Authority in the case of lands having an area of less than 5 hectares should be obtained before exploiting the quarrying permit is called for. Incidentally the question whether the Government order dated 10.1.2014 can be relied on by the petitioner in view of the interim order passed by the National Green Tribunal also arises for consideration. The impact of the amendment to section 14 of the Mines and Minerals(Development and Regulation) Act, 1957 by Act 37 of 1986 with effect from 10.2.1987 also arises for consideration. By virtue of the said amendment, section 14 of the Act applies to quarrying leases a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of minor minerals from private holdings, for a period not exceeding one year, if the applicant concerned had complied with all the other conditions for issuing of such permit as well as the conditions regarding environmental clearance stipulated in the Supreme Court order. On 11.12.2012, another order was issued by the State of Kerala, wherein it was clarified that short term temporary permits can be granted for those persons, who are eligible if all other legal requirements for doing mining operations are complied with. Reference to order dated 10.01.2014 of the State Government has also been made, wherein the State Government observed that after considering the situation of acute shortage of raw materials in the construction field of the State due to standstill of operations in the sector, operation of the short term permits is extended for a period of one year without insisting on the environmental clearance. The petitioner has prayed for quashing Exhibit P9 Government order dated 21.02.2014. The petitioner has also prayed for a declaration that the petitioner has right to get the 'P' form revalidated or a new 'P' form in pursuance of the Government orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o order that the quarrying lease in the area will stand cancelled and no quarrying operations will be permitted in the area. The order of the Hon'ble High Court read as 10th paper above is complied with, accordingly. The petitioner has filed the Writ Petition praying for quashing the order, Exhibit P9. The Special Government Pleader has filed adoption memo to adopt the counter affidavit filed in W.P(C). No. 6338 of 2014. 17. W.P(C). No. 4783 of 2014 has been filed by the petitioner seeking a mandamus to third respondent to issue quarrying permit to remove the ordinary soil from his property. The petitioner claims that no objection certificate dated 06.05.2013 has been issued by the District Collector and the Geologist has also given consent, but quarrying permit has not been issued. Reference order dated 12.03.2014 was made by the learned Single Judge in the Writ Petition. 18. W.P(C). No. 12706 of 2014 has been filed by the petitioners for quashing Exhibit P9 Government order dated 21.02.2014 and seeking a declaration that the petitioners have right to get 'P' form revalidated issued on 07.12.2013. The petitioners' case is that the Geologist gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hindrance and obstruction in running their quarry. Consequently, police protection be allowed to them to carry on their mining operation. For deciding this group of Writ Petitions, it shall be sufficient to note the facts in W.P(C). No. 26453 of 2014. 23. The petitioner in W.P(C). No. 26453 of 2014 claims to have been granted quarry permit on 30.10.2013 in 6 acres and 20 cents of land. The petitioner was granted quarrying permit to extract laterite building stone. The petitioner's case is that when the petitioner started quarrying activities, respondents 4 to 10 began to create obstruction. They stopped the lorries carrying the mining stones and demanded payment of ₹ 500/- per lorry. The petitioner also filed a suit, O.S. No. 843 of 2011, in which permanent prohibitory injunction was granted. The Special Government Pleader has filed adoption memo to adopt the counter affidavit filed in W.P(C). No. 6338 of 2014. In the Writ Petition the learned Single Judge has made a reference dated 12.03.2014 as noted above. 24. Group-V Writ Petitions consist of three miscellaneous matters, being W.P(C) Nos. 4662 of 2014, 2636 of 2015 and W.A. No. 1566 of 2014. In W.P(C) N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nan, Sri. Paul K. Varghese, Sri. H. Badaruddin and Sri. Abraham Mathew Vettoor learned counsel appearing for the petitioners in different Writ Petitions. We have also heard Sri.George Poonthottom, Shri P.K. Suresh Kumar, Senior Counsel Sri. Babu Joseph Kuruvathazha, Sri. Joby Jose Kondody, Sri. Jacob P. Alex and Sri. Mathew Kuzhalanadanand Sri. P. Viswanathan, learned counsel appearing for the respondents and also learned counsel for the intervenors. 29. Shri P.B. Sahashranaman, learned counsel appearing for the petitioner in the leading Writ Petition (public interest litigation), W.P(C). No. 31148 of 2014, contended that existing mining operations being conducted in the State of Kerala have caused a serious threat to the ecology and environment in the State. He submitted that the Apex Court, finding that excessive minings are done by showing small extent of land, which cause severe damage to the environment, has issued several directions in Deepak Kumar's case (supra). The Apex Court directed in the said judgment that no mining lease or renewal be granted without obtaining environmental clearance. It is submitted that in view of the amendments made in Section 14 of 1957 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when read along with Rule 66 is that quarry lease holders may take environmental clearance only on the expiry of the existing lease period is defeating the very objectives sought to be achieved through the orders issued by the Government of India, Ministry of Environment and Forests. It is submitted that under Rule 68, mining operations are to be undertaken only in accordance with the mining plan, hence the mining plan is a condition precedent for carrying out any mining operation. He submitted that the period of two years granted for submission of the mining plan by the existing lease holders/permit holders is violative of the provisions of the 1986 Act and the direction of the Apex Court in Deepak Kumar's case (supra). The learned counsel submitted that although he does not press for striking down the 2015 Rules, but Rule 68 has to be given overriding effect on other provisions of the Rule and it may be declared that no quarrying/mining operations be undertaken without there being duly approved mining plan. He submitted that interpretation of Rule 68 in the above manner shall protect the environment and ecology. 31. Learned counsel for the lease holders/permit holders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refers to the counter affidavit filed in W.P(C). No. 6338 of 2014, which has been filed in the leading Writ Petition also, wherein it is pleaded that various directions regarding the size of the mining lease area, minimum period of mining lease, requirement of mining plan, formation of corpus fund for requirement and rehabilitation of mined areas, depth of mining and other conditions have been fully complied with. He submitted that under the 2015 Rules, now the State has provided for mining lease/quarrying permit. It is submitted that both for quarrying permit and mining lease the requirement of obtaining environmental clearance as per notification dated 14.09.2006 has been provided for, which fully complies with the requirement of law. For renewal of quarrying lease environmental clearance is also insisted in the Rules. It is submitted that the 2015 Rules fully comply with the directions of the Apex Court and Rules are comprehensive including of environmental aspects. He submitted that in view of framing of 2015 Rules, the direction of the Apex Court in Deepak Kumar's case (supra) has come to an end, since all directions are only for the interregnum period till the Rules are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.P(C). No. 6338 of 2014 submitted that the State Level Environmental Impact Assessment Authority has been absolved in the State with effect from 02.11.2014 and till date no authority has been created by the Central Government. He referred to various paragraphs of the notification dated 14.09.2006 and submitted that the said notification is not applicable to the existing permits and mining leases. 38. Learned counsel for the parties have also referred to various orders passed by the National Green Tribunal and various judgments of the Apex Court as well as this Court, which shall be referred to while considering the submissions in detail. 39. We have considered the submissions of learned counsel for the parties and perused the records. 40. From the submissions made by learned counsel for the parties and pleadings on record, following are the issues which arise for consideration in this bunch of cases: Issues referred by learned Single Judge by reference order dated 12.03.2014: I. Whether even in the case of existing quarrying/mining permits environmental clearance from the competent authority, viz., the Ministry of Environment and Forests in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to the relevant statutory provisions. The Parliament enacted the Mines and Minerals (Development and Regulation) Act, 1957 to provide for the development and Regulations of mines under the control of the Union. Section 3 is the definition clause. Section 3(e) defines minor minerals. Section 4 of the Act provides for prospecting or mining operations to be under licence or lease. Section 4(1) is quoted as below: 4. Prospecting or mining operations to be under licence or lease. - (1) No person shall undertake any reconnaissance, prospecting or mining operations in any are, except under an in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder: Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement: . ...... Section 4A was inserted in the 1957 Act providing for termination of prospecting licences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State of Kerala. 42. Although by amendment made in 1972 by insertion of Section 4A, the Central Government took power to take action for termination of mining lease for preservation of natural environment but the said provisions were not sufficient to keeping check on mining operations and consequent adverse impact on environment and ecology. The Central Government noticed that there has been substantive decline in environment quality due to increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals etc. India was signatory to the United Nations Conference in the Human Environment held in Stockholm in June, 1972 where decisions were taken based on the world community's resolve to protect and enhance the environmental quality. The Parliament enacted the Environment (Protection) Act, 1986 to provide for protection and improvement of environment and matters connected therewith. Section 3 of the 1986 Act empowered the Central Government to take measures to protect and improve environment. Section 3(1) is quoted as below: 3. Power of Central Government to take measures to protect and improve environment. - (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Central Government or State Government as the case may be by the State Level Environment Impact Assessment Authority. Paragraph 2 of the Notification required for prior environmental clearance. Schedule to the Notification included at Item No. 1(a) mining of minerals . Properties were categorized into A and B and mining of minerals of an area of less than 50 hectares and more than 5 hectares were included in category B. 44. Then came the judgment of the Apex Court in Deepak Kumar and Others v. State of Haryana and Others ([2012] 4 SCC 629) where the Apex Court considering the Notification dated 14.09.2006 and considering Articles 21, 48A and 51A(g) of the Constitution of India and other relevant law issued directions 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 Ministry of Environment and Forests . Various issues arose in different States regarding the effect of judgment of the Apex Court in Deepak Kumar's case (supra) and the consequence of Notification dated 14.09.2006. Various issues arising in this bunch of Writ Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such notification and may within five hundred and forty five days from such date of publication impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area. (4) Notwithstanding anything contained in sub-rule 93), wherever it appears to the Central Government that it is in public interest to do so, it may dispense with the requirement of notice under clause (a) of sub-rule (3) . Statutory provisions thus fully empowered the Government to prohibit carrying on of any process or operation after issuance of notification. As noted above in exercise of the said power notification dated 27.01.1994 was issued which provided that mining projects (major minerals) more than 5 hectares requires environmental clearance from the Central Government. The said notification did not cover the mining of minor minerals. Then came the 2006 Notification by which mining of minor minerals has been taken within the Notification irrespective of whether the mineral is minor or major. It is useful to extract the following portion of the Notification containing directions of the Central Government: Now, therefore, in exercise of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... load, and without any additional water and/or land requirement are exempted from the provisions of this notification: Provided that, a self certification, stating that the proposal shall not involve any additional pollution load, waste generation or water requirement, be submitted to the regulatory authority by the project proponent. Paragraph 7 of the Notification deals with Stages in the Prior Environmental Clearance (EC) Process for New Projects. It is useful to quote paragraph 7(i): 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:- Stage (1) Screening (Only for Category 'B' projects and activities) State (2) Scooping Stage (3) Public Consultation Stage (4) Appraisal The Schedule of Notification dated 14.09.2006 contains various headings. The first heading provided for Mining, extraction of natural resources and power generation (for a specified production capacity). Ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing projects or activities. Thus new projects or activities or existing projects or activities have been differently dealt with whereas for existing projects or activities environmental clearance is contemplated in the event of expansion and modernization whereas for new projects or activities environmental clearance is contemplated before carrying out mining operations. 48. There are no words in the Notification which may indicate that the Notification intend to stop all existing projects or activities. 49. On the statutory interpretation, learned counsel for the parties cited various judgments on Interpretation of Statutes which are relevant to be referred to. In M.K.Ranganathan and another v. Govt. of Madras and others (AIR 1955 SC 604) the following was laid down in paragraph 21: 21. It is a well-recognised rule of construction that when two or more words which are susceptible of analogous meaning are coupled together noscitur a sociis. 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 the less general' (Maxwell on Interpretat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider. We are not impressed by this argument. It must be borne in mind that noscutur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import in doubtful; but, where the object of the Legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service. As has been observed by Earl of Halsbury, L.C., in Corporation of Glasgow v. Galsgow Tramway and Omnibus Co. Ltd., 1898 AC 631 at p. 634 , in dealing with the wider words used in S. 6 of Valuation of Lands (Scotland) Act, 1854, the words 'free from all expenses whatever in connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without scanning its wisdom or policy and without engrafting, adding or implying anything which is not congenial to or consistent with such express intent of legislature. Hardship or inconvenience cannot alter the meaning employed by the Legislature if such meaning is clear on the face of the Statute. If the Statutory provisions do not go far enough to relieve the hardship of the member, the remedy lies with the Legislature and not in the hands of the Court. A clarification issued by the Government of India on 02.07.2007 with regard to Notification dated 14.09.2006 throws considerable light over the intendment of the Notification. Federation of Mining Associations of Rajasthan and others have raised concerns regarding application of Notification dated 14.09.2006 to mining leases of 5 hectares for major minerals and mining leases of minor minerals which have been in operation before the Notification. The matter was examined by the Government of India, Ministry of Environment Forests (IA Division) and Circular dated 2nd July, 2007 was issued which is relevant to quote: No. J-15012/35/2007-IA.II(M)-Part Government of Indian Ministry of Environment Forests (IA Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of issuance of the Notification dated 14.09.2006. 51. In the above context, judgment of the Apex Court in Deepak Kumar's case (supra) has also to be referred to. As noted above, the EIA Notification only covered lease areas of 5 hectares or more. The Apex Court considered the action of the State of Haryana which issued auction notice on 03.06.2011 proposing to auction the extraction of minor minerals of an area not exceeding 4.5 hectares in different districts. The Apex Court noted the serious environmental impact of quarrying, mining and removal of sand from in stream and upstream of several rivers. The Apex Court noted that it is without conducting any study on the possible environmental impact auction notices were issued. The following was laid down in paragraphs 10 and 11: 10. We are expressing our deep concern since we are faced with a situation where the auction notices dated 3.6.2011 and 8.8.2011 have permitted quarrying mining and removal of sand from in - stream and upstream of several rivers, which may have serious environmental impact on ephemeral, seasonal and perennial rivers and river beds and sand extraction may have an adverse effect on bio - div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mining of minor minerals, though individually, because of smaller size of mine leases is perceived to have lesser impact as compared to mining of major minerals. However, the activity as a whole is seen to have significant adverse impacts on environment. It is, therefore, necessary that the mining of minor minerals is subjected to simpler but strict regulatory regime and carried out only under an approved framework of mining plan, which should provide for reclamation and rehabilitation of the mined out areas. Further, while granting 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 be duly noted. The Union Ministry of Mines along with Indian Bureau of Mines and respective State Governments should therefore make necessary provisions in this regard under the Mines and Minerals (Development and Regulation) Act, 1957, Mineral Concession Rules, 1960 and adopt model guidelines to be followed by all States. (emphasis supplied) The Apex Court noted the recommendation that the State/Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he recommendations of the Ministry of Environment and Forests in its report of March, 2010. The following was laid down by the Apex Court in paragraphs 26 and 27: 26. We are of the considered view that it is highly necessary to have an effective framework of mining plan which will take care of all environmental issues and also evolve a long term rational and sustainable use of natural resource base and also the bio - assessment protocol. Sand mining, it may be noted, may have an adverse effect on bio - diversity as loss of habitat caused by sand mining will effect various species, flora and fauna and it may also destabilize the soil structure of river banks and often leaves isolated islands. We find that, taking note of those technical, scientific and environmental matters, MoEF, Government of India, issued various recommendations in March 2010 followed by the Model Rules, 2010 framed by the Ministry of Mines which have to be given effect to, inculcating the spirit of Art. 48A, Art. 51A(g) read with Art. 21 of the Constitution. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court directing inter-alia as under: We in the meanwhile, order that leases of minor mineral including their renewal for an area of less than 5 ha be granted by the States/UTs only after getting environmental clearance from the MoEF. 2. The Environment Impact Assessment (EIA) Notification, 2006, as amended, requires mining projects (new projects, expansion or modernization of existing projects as also at the stage of renewal of mine lease) with lease area of 5 ha and above, irrespective of the mineral (major and minor) to obtain prior environment clearance under the provisions thereof. Mining projects with lease area of 5 ha and above and less than 50 ha are categorized as category 'B' whereas projects with lease area of 50 ha and above are categorized as category A'. The category 'A' projects are considered at the central level in the Ministry of Environment Forests while category 'B' projects are considered by the respective State/UT Level Environment Impact Assessment Authority, notified by MoEF under the EIA Notification, 2006. 3. In order to ensure compliance of the above referred order of the Hon'ble S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds used in the meanwhile . The order 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 from MoEF. The order thus used the words be granted which clearly meant that it referred to the leases to be granted, after the Government of India's order dated 18.05.2012. Paragraph 3 of the order used the word henceforth which clearly meant that the order was to be operated with regard to leases and renewals which were to be granted for an area less than 5 hectares after the issue of the order. 57. One more issue incidental to the above issues need to be considered. One of the submissions which has been raised before us is that both the Notification dated 14.09.2006 and the judgment of the Apex Court in Deepak Kumar's case (supra) used the word 'lease', hence neither the Notification dated 14.09.2006 nor the judgment of the Apex Court in Deepak Kumar's case (supra) was applicable with regard to mining permits/quarry permits which are granted under the 1967 Rules. As noted above, 1967 Rules have been framed in exercise of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecological imbalances and consequent environmental damage have reached to such an alarming state that unless immediate, determined and effective steps are not taken the damage might become irreexisible. It is useful to note the observations made in paragraphs 8 and 9 which are to the following effect: 8. On a careful consideration of the matter, we are afraid, the approach of and the conclusion reached by the High Court is unsupportable. In regard to the first ground, presumably, certain provisions of the Act in regard to cognizability and investigation of offences against the Act, relevant to the matter, had not been placed before the High Court. The policy and object of the Wild Life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalances introduced by the depradations inflicted on nature by man. The state to which the ecological imbalances and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken, the damage might become irreversible. The preservation of the fauna and flora, some species of which are getting extinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to protect environment. Even though, laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard to the mandatory provisions of law, some public spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the Courts for preventing environmental degradation and thereby, seeking to protect the fundamental rights of the citizens, is now well settled by various decisions of this Court. The primary effort of the Court, while dealing with the environmental related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The Courts, in a way, act as the guardian of the people's fundamental rights but in regard to many technical matters, the Courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the environment and to safeguard the forests and wildlife of the country . Article 47 further imposes the duty on the State to improve public health as its primary duty. Article 51-A(g) imposes a fundamental duty on every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The word environment is of broad spectrum which brings within its ambit hygienic atmosphere and ecological balance . It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has a duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including the right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the years for a number of reasons, one of it being the need to use forest area for development activities including economic development. Undoubtedly, in any nation development is also necessary but it has to be consistent with protection of environments and not at the cost of degradation of environments. Any programme, policy or vision for overall development has to evolve a systemic approach so as to balance economic development and environmental protection. Both have to go hand in hand. In the ultimate analysis, economic development at the cost of degradation of environments and depletion of forest cover would not be long-lasting. Such development would be counterproductive. Therefore, there is an absolute need to take all precautionary measures when forest lands are sought to be directed for non-forest use . 59. Learned counsel for the quarry owners as well as the learned Government Pleader have made much emphasis on the fact that on account of requirement of environmental clearance development in the State has come to a standstill. It is submitted that even the Metro Rail is suffering from material crunch. 60. Development and protection of environment both have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court fully knew about other mineral concessions but in Deepak Kumar's case the Apex Court confined the direction only to mining lease. To accept the submission of the learned counsel for the quarry owners that the Notification dated 14.09.2006 is not attracted on the mining permit, permitting the environment to be adversely affected damage by continuous exploitation of natural resources under the mining permit which runs counter to the very object and purpose of issuance of Notification dated 14.09.2006. The concept of strict regulatory regime for minor mineral shall explode if one category of mineral concession, i.e., mining permits are permitted to excavate to deplete natural resources without there being any environmental regulatory measures. Notification dated 14.09.2006 never intended that mining concession by mining permit should be kept out of regulatory measure. Neither the said Notification can be interpreted in the above manner nor the same shall advance the object of protection of environment which is the spirit of the enactment and judgment of the Apex Court in Deepak Kumar's case (supra). Issue Nos. I and IV to VI are answered accordingly. 61. One mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners in the Public Interest Litigations contended that the National Green Tribunal has no jurisdiction to quash a notification issued under the 1986 Act. It is submitted that the order of the National Green Tribunal is inoperative and has no effect on continuance of the notification dated 09.09.2013. For the purpose of this case it is not necessary for us to enter into the issue as to whether direction of the National Green Tribunal in its order dated 13.01.2015 is inoperative or invalid, since we have already held that in view of the direction of the Government of India, Ministry of Environment and Forests dated 18.05.2012 read with the Judgment of the Apex Court in Deepak Kumar's case (supra) now it is mandatory to obtain environmental clearance of mining lease for an area less than 5 hectares. 63. Now we take Issue No. III which relates to impact of the amendment to Section 14 of the 1957 Act. Shri P.B. Sahasranaman, learned counsel appearing for the leading Writ Petition has contended that by amendment made Section 4 having been made applicable to minor mineral, no mining operations can be permitted except by mining lease and mining operations by mining permi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms). No. 144/2012/ID dated 11.12.2012 ORDER Government as per the orders read above have ordered that short term permits can be granted for the existing quarries for extraction of minor minerals from private holdings of less than five hectares which are not on leases on Government lands for a period not exceeding one year, without insisting Environment Clearance from the Ministry of Forest and Environment, if the applicant concerned had complied with all other conditions for issuance of such permits specified under the Kerala Minor Mineral Concessions Rules 1967. This order was subject to further orders, if any that would be passed by the Supreme Court of India on the clarification petition proposed to be moved by the Government of Kerala in the Supreme Court on the order dated 27.2.2012 in SLP (c) No:19628/2009. Government after having considered the situation of acute shortage of raw materials in the construction field of the state due to standstill of operations in the sector are pleased to extend the tenure of operation of the aforesaid orders with respect to grant of short term permits without insisting the Environment clearance for a further period of one year. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of such permit, as well as other conditions regarding environmental clearance stipulated in the Supreme Court Order read as 1st paper above, wherever applicable. 2. But as per letter read as 2nd paper above Director of mining and Geology requests to clarify the following parts. (i) Whether short term quarrying permit for a period of less than one year can be granted without obtaining environmental clearance stipulated in the order of the Supreme Court dated 27.02.2012, if the application is satisfactory in all other respects. (2) What are the conditions/circumstances that invite environmental clearance in the case of issuance of short term quarrying permit for minor minerals? (3) The matter has been examined in consultation with the law Department. The legal opinion received is that short term temporary permits can be granted to those persons who are eligible if all other legal requirements for doing mining operations are complied with. It is therefore clarified that short term permits can be granted in respect of minor minerals in private holdings which are not on leases on Government lands subject to satisfaction of the various requirements specified under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and Forests in its Report of March 2010 and the model guidelines framed by the Ministry of Mines within a period of six months from that day and submit their compliance reports. Whereas in paragraph 29 by the words in the meanwhile it clearly meant the situation till the State amends its Rules as per the directions issued in paragraph 27. In the present case the State has framed the 2015 Rules which supersedes Rules 1967. It is relevant to refer to some Rules of the 2015 Rules relating to environmental clearance. Rule 9 contemplates disposal of application for the grant of quarrying permit to be when the applicant submits approved mining plan and environmental clearance for the precise area. Rule 9(2) contemplates issue of quarrying permit only on receipt of mining plan and environmental clearance. Rule 9 is quoted below: 9. Disposal of application for the grant of quarrying permit - (1) On receipt of the application for grant of quarrying permit for undertaking quarrying operations, the competent authority shall make site inspection and take decision regarding the precise area to be granted for the said purpose and intimate the applicant to submit approved mining plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clearance for the precise area, (2) On receipt of an approved mining plan and Environmental Clearance for the precise area and on production of all other statutory licenses/clearances/No Objection Certificate etc. from other statutory authorities concerned, the competent authority shall grant a quarrying lease within thirty days. From the 2015 Rules it is clear that now the State has specifically prescribed requirement of environmental clearance for grant of mining permit as well as mining lease/quarrying lease. Rule having coming into from 07.02.2015 all subsequent acts by the State has to be conducted in accordance with the statutory Rules. Order of the Apex Court in Deepak Kumar's case (supra) which was issued as an interim measure has served its main purpose since requirement of obtaining environmental clearance has been engrafted in the 2015 Rules. 71. One submission which has ben pressed by the learned counsel for the intervenors is that proviso has been engrafted in Rule 12 to the effect that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lan. Rule 68, however, further requires carrying out of quarrying operations with such conditions as may be prescribed under these rules or with such modifications, if any, permitted under these rules . Rule 68 thus clearly meant carrying out of the mining operations in accordance with the mining plan. Rule 66 thus has to be read along with Rule 68 and Rule 66 engraft an exception to the general Rule 68 which required that every quarrying operation be in accordance with the mining plan. If it is held that Rule 68 is to override any other Rule of the 2015 Rules pertaining to mining plan, the same shall not be in accordance with the intend and content of Rule 68. We thus are of the view of that Rules 66 and 68 have to be read together and Rule 66 is a category exempted from the mandatory requirement as provided in Rule 68. We thus are not persuaded to accept the interpretation given by Shri P.B. Krishnan, learned counsel appearing for the petitioners in W.P(C) No. 4471 of 2015. As observed above, the 2015 Rules have been framed keeping in view of the observations made by the Apex Court in Deepak Kumar's case and there being no challenge to the 2015 Rules, all the parties before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermit mining only by lease, cannot be accepted. As noted above, the 2015 Rules have already enforced in the State of Kerala, now all mining permits, mining lease and quarry lease and other mineral concessions have to be in accordance with the 2015 Rules. Thus all mining operations have to be conducted in accordance with the 2015 Rules as well as the observations made by us in this judgment. Exhibits P3 and P4, Government Orders dated 23.11.2012 and 11.12.2012 have been prayed to be quashed. We have already held that after the judgment of the Apex Court in Deepak Kumar's case (supra) and the order of the Government of India, Ministry of Environment and Forest dated 18.05.2012, all grant of mining lease/mining permit for less than 5 hectares have to be in accordance with the environmental clearance as envisaged by the Notification dated 14.09.2006. Thus both the aforesaid Government Orders have to be read accordingly and further the 2015 Rules having framed and enforced by the State, all actions regarding mining operations have to be done in accordance with the 2015 Rules. Further prayer has been made to quash amendment dated 30.06.2014, i.e., Kerala Minor Mineral Concessions (Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict Collector has to examine all aspects of the matter as per the law laid down by us in this judgment as well as Rule 2015. The mining operation, if any may be held only after such clearance by the District Collector. 77. Group-III and IV Writ Petitions are by quarry owners/permit owners seeking different reliefs. Group-IV relates to the Writ Petitions filed by quarry owners/permit owners seeking police protection for carrying out their quarrying operation. We have already held that quarrying operation/mining operations by mining lease or mining permit is to be conducted in accordance with the 2015 Rules as well as the observations and directions made by us in this judgment. Interest of justice would be served by giving liberty to all petitioners of Group-III to approach the District Collector for necessary clarification/clearance order and the petitioners may act accordingly. For petitioners who are seeking police protection, liberty is given to them to approach the District Collector for seeking necessary clarification/clearance order regarding their entitlement to carry on mining operations as per the 2015 Rules and the observations made by us in this judgment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this judgment. 80. Writ Petition No. 2636 of 2015 has been filed praying for a mandamus commanding the 2nd respondent to consider and dispose of Exts.P7 to P9 objections and suggestions against the draft 2015 Rules before publishing the final notification framing rules by the State Government. The 2015 Rules having been already published and enforced, this Writ Petition has become infructuous. 81. W.A. No. 1566 of 2014 has been filed challenging the judgment of the learned Single Judge dated 23.01.2014 by which decision of the Panchayat rejecting the petitioner's application for issuance of licence to conduct quarry was upheld. No infirmity can be found out in the judgment of the learned Single Judge. However, there shall be liberty to the petitioner to make fresh application in accordance with the 2015 Rules as well as the observations made by us as noted above. 82. In view of the foregoing discussion, we come to the following conclusions. (i) In case where quarrying/mining/lease which were existing on the date of issuance of Notification dated 14.09.2006 or on the date of issue of the order dated 18.05.2012 by the Government of India, Ministry of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to Issue No. IX, reliefs which the petitioners are entitled to. 84. In view of foregoing discussions, we dispose of all the Writ Petitions including one Writ Appeal in the following manner: (i) Writ Petitions relating to Group - I, Public Interest Litigations are disposed of in accordance with our conclusions and directions contained in paragraph 82. (ii) All the Writ Petitions relating to Group - II, challenging quarrying operations by private individuals are disposed of with a direction to the District Collector to examine the right of quarrying owners/mining permit owners (private respondents) to carry mining operations and to issue necessary clarifications/clearance only after being satisfied that such mining operations are in accordance with the 2015 Rules as well as the observations made by this Court in the present case. (iii) Writ Petitions of Groups - III IV (except WP(C). No. 7632 of 2014), by quarry owners as well as quarry owners seeking police protection are disposed of giving liberty to the petitioners to approach the District Collector for carrying on mining operations which clearance shall be issued by the District Collector only after b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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