TMI Blog2004 (3) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... ni Gupta, S. Udaya Kumar Sagar, Bina Madhavan, Prasanth P., R.C. Verma, Mukesh Verma, Manish Shanker, S.K. Dubey, A.K. Yadav, K.V. Mohan, Mohan Pandey, R.S. Suri, Vijay Panjwani, Indra Sawhney, Bharat Sangal, C.D. Singh, V.B. Saharya, Mahabir Singh, Shiv Pujan Singh, J.P. Dhanda, S.K. Sabharwal, Neeraj Kumar Sharma and A.D.N. Rao, Advs. and Party-in-Person, Raju Ramachandran, Additional Solicitor General and Neeraj Kumar Jain, Adv. for Kavita Wadia, Adv. for the appearing parties JUDGMENT Y.K. Sabharwal, J. 1. The main question to be examined in these matters is whether the mining activity in area upto 5 kilometers from the Delhi-Haryana border on the Haryana side of the ridge and also in the Aravalli hills causes environment degradation and what directions are required to be issued. The background in which the question has come up for consideration may first be noticed. 2. The Haryana Pollution Control Board (HPCB) was directed by orders of this Court dated 20th November, 1995 to inspect and ascertain the impact of mining operation on the Badkal Lake and Surajkund - ecologically sensitive area falling within the State of Haryana. In the report that was submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould include land rejuvenation and afforestation programmes, and other measures necessary to protect the quality of the environment and human health. The mining operations should commence only after the approval of EMP by a designated authority. A time-bound action plan needs to be initiated for the implementation of the measures delineated in the Environmental Management Plans. (11) (12)... (13) The question of lifting the ban on mining operations needs to be considered in conjunction with the implementation of stringent pollution control; land reclamation, green belt, and other Environmental Management measures so as to facilitate the availability of construction materials and employment opportunities for the workers along with the protection of environment and public health. (14) It is considered necessary to prepare a Regional Environmental Management Plan for urgent implementation to enable eco-friendly regional development in the area. 5. On consideration of the reports, this Court came to the conclusion that the mining activities in the vicinity of tourist resorts are bound to cast serious impact on the local ecology. The mining brings extensive alteration in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance of the environment and protecting the Asola Bhatti Wildlife Sanctuary and the ridge located in Delhi and adjoining Haryana, it is necessary to stop mining. In the application, it has been averred that the Asola Bhatti Wildlife Sanctuary is located on the southern ridge which is one of the oldest mountain ranges of the world and represents the biogeographically outer layer of the Aravalli mountain range which is one of the most protected areas in the country. The sanctuary is significant as it is instrumental in protecting the green lung of National Capital of Delhi and acts as a carbon sink for the industrial and vehicular emissions of the country's capital which is witnessing rapid growth in its pollution level each year. The ridge, it is averred, is a potential shelter belt against advancing desertification and has been notified a wildlife sanctuary and reserve forest by the Government of National Capital Territory of Delhi. Regarding the mining activities, it is averred that for extraction of Badarpur (Silica sand), there is large scale mining activity on the Haryana side just adjacent to the wildlife sanctuary of the ridge which activities threaten the sanctuaries h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pollution. EPCA has also the power to deal with environment issues pertaining to National Capital Region which may be referred to it by the Central Government. The EPCA has jurisdiction over the National Capital Region as defined in Clause (f) of Section 2 of the National Capital Region Planning Board Act, 1985. The Districts of Gurgaon and Faridabad are part of the National Capital Region, under Section 2(f) read with the Schedule of the said Act. 12. The Chairman of the CPCB is a convener member of EPCA. EPCA made a surprise visit to the area to see the mining sites. The mining sites visited are located in the villages of Anangpur, Pali, Mohabatabad and Mangar, which fall within the notified area of 5 km radius from the Delhi border in the Faridabad district. EPCA also visited mining sites that are located outside the notified zone in Kot area, EPCA also held consultation with the officials of the Central Groundwater Board and obtained their opinion on this matter. On August 7, 2002, members of the EPCA visited the mining sites located within five km radius from Delhi border. The objectives of the visit, as per EPCA, were as follows: 1. Assessment of the level of compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s laid out to draw water out of the pits to throw them over hills and let the water flow out. This is a grave misuse of precious ground water in an area where ground water is the only source of water for the local population - both urban and rural. EPCA members talked to local villagers who complained that water table in the area has gone down over a period of time and that the village is facing water shortage. While earlier ground water could be tracked at the depth of 30-35 ft. now deep bore wells have been dug to get drinking water, in addition, noise and dust pollution from the mining sites are a problem. Goodwill mine in Pali village : EPCA found similar violation of conditions and evidence of mining sites reaching the level of ground water in deep pits and pipes fitted to drain out water here as well. During the long drive to various mining sites, EPCA could not see any credible sign of green belt along the roads. Moreover, one important condition of NOCs is that a safe distance should be maintained from the road to overburden dumps and the mine pits in accordance with the directions/notifications of the department of environment, Haryana and bureau of mines. But E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e area, which govern land use and mining so as to understand what efforts have been made by different agencies to ensure compliance. In May 1992, parts of the Aravalli range were declared ecologically sensitive under the Environment (Protection) Act. Under this notification, certain activities - including all new mining operations, including renewals of mining leases - are restricted and permission has to be sought from the Ministry of Environment and Forests. This notification is valid for reserved forests in the districts of Gurgaon in Haryana and Alwar in Rajasthan In August 1992, the Forest Department of Haryana had issued a notification under the Punjab Land Preservation Act 1900, banning the clearing and breaking up the land not under cultivation, quarrying of stone... in the Badkal area without prior permission of the forest department. This ban was for 30 years. Earlier it had already issued a similar notification for the Pali area for 25 years. In 1996, the Hon'ble Supreme Court banned all mining activity within 2 kms of the Badkal and Surajkund tourist resorts. In the same order, it ordered that mining leases within the area from 2 km to 5 km radius shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Definitely not done. EPCA did not see afforestation, plantation of dying and dead trees in one or two places. The sign boards were more prominent than the trees they were Supposed to show. 3. 100 mts Open peripheral area around stone crusher zone with green belt Not done 4. Green belt on either side side of the road between Surajkund and Radkal We saw large scale Construction on this road from schools to management colleges and housing colonies. 5 . Mining should commence only after the environmental management plan (EMP) is approved by a designated authority There is no evidence of an environmental management plan being adhered to in this region. Adherence to the conditions of the No-objection Certificate granted by CPCB for mining S. No. Directive Enforced or not 1. Mining to be done with approved mining plan No evidence 2. Excavated pit to be filled by fly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, it has argued that little or no impact on groundwater reserves is possible. 5.1 Groundwater Board EPCA requested the Central Ground Water Board (CGWB) for its opinion. The Board has based its recommendations on the data available with it as well as a field survey. The key issues are: 1. On the issue of the ridge providing a water divide between the two states, the CGWB has maintained that while the surface water divide follows the Delhi-Haryana border, except in the catchment of Bhuria Nala, 'the surface water divide may not be the groundwater divide in the strict sense due to secondary porosity and also flat topped nature of the hills.' It also states that the Aravalli hills are highly fractured, jointed and weathered making the major recharge zone for the surrounding areas. 2. On the impact on the groundwater reserves due to mining, the Board has found that its observation wells have shown an increase in groundwater levels in Anangpur, Mangar, after the mining has been stopped in May. therefore in spite of monsoon failure and continued abstraction of water, the observation wells have noted increased water levels within just 2 months of the mining b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being done in a few cases. Under this condition, mining is not allowed in the water table area. EPCA saw deep and extensive pits of mines with vast water bodies. EPCA also saw evidence of pumps and pipes being used to drain out the ground water so that mining could continue. therefore, the miners are mining for silica, but also in the process, mining and destroying the ground water reserves of the areas. In times of such water stress and desperation, this water mining is nothing less than a gross act of wastage of a key resource. This time the stress has been further aggravated by the failure of monsoon. Notices have been issued in the nearby housing colonies stating that fail in groundwater table due to lack of rains is responsible for water shortage in the area this season. This only indicates how important it is to conserve ground water in the region, for long term sustainability of drinking water sources. Ground water is the only source of drinking water here. 15. On the basis of study and visit as well as the report of the Central Ground Water Board, EPCA made the following recommendations : 1. The ban on the mining activities and pumping of ground water in and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. This notification declaring it an ecologically sensitive area will help to regulate the activities in this region. 5. It is not clear to us if adequate planning for water is being done in the large scale construction activities being undertaken in this area. This aspect is outside the purview of this report but needs to be examined carefully. 6. It must also be noted that Gurgaon-Faridabad road is being proposed as the major bypass for the city of Delhi. The Hon'ble Court will note its directives on the air pollution case in this regard. It has been said to the court in that matter that the Government of Haryana is intending to widen the road and bids have even been issued to this effect. therefore it is all the more important that the mining activity along the road must not be allowed. The 5 kms. ban from the border of Delhi will take care of this requirement. 7. EPCA would also recommend that the mining area outside the 5 kms. area must be demarcated and regulated. In this context, EPCA would like to draw the attention of the court to the violations and gross disregard for regulations found in the present mines. It is not out of place to mention that these mines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi State also. The formations in the Aravalli hills are highly fractured, jointed and weathered making it the major recharge zone for the surrounding areas. The surface water divide may not be ground water divide in strict sense due to secondary porosity and also flat-topped nature of the hills. 3. The pumping of ground water during mining of Silica sand affects ground water regime of surrounding area. During the field visit, it was reported by local people that during the dewatering of mines there was decline in ground water levels and reduction in discharge in surrounding wells whereas after stoppage of pumping the rise in water levels and increase in discharge has been reported. In few observation wells on down stream side of mines rise in ground water levels has been observed in Anangpur, Manger and villages after stoppage of abstraction of ground water from deep mines. The ground water levels in a tube well monitored in Mewla Maharajpur during mid July 2002 and first week of August 2002 were 24.39 and 24.57 m. below ground level respectively, showing a rise of 0.18 m. Ground water levels in tube well located at female near Manger mine in second week of July 2002 and first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and adjoining industrial area in August 2000, October 1998 and December 2000 respectively mainly on consideration of over development of ground water resources resulting in substantial decline in ground water levels. Regulatory measures on ground water development have been imposed in these areas. 8. therefore, it is observed that dewatering of mines in Aravalli hills has affected ground water regime of the mine area as well as buffer zone resulting in depletion of ground water resources. 17. When the aforesaid report came up for consideration, some of the mine owners submitted that their mines had not been inspected by Bhure Lal Committee. Particulars of the mines that were stated to have not been inspected were filed on 23rd September, 2002. Bhure Lal Committee was requested to carry out the inspection of the said areas/mines. The Committee was also permitted to associate such other organizations or persons as it may deem fit and proper for the purpose of inspection. EPCA 2nd Report and Recommendations 18. In terms of the aforesaid order, 26 mines were inspected and report dated 21st October, 2002 was submitted. The observations made as a request of inspection in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yes. Status of environmental clearances: No clearance given. No environmental management plan. The mining pit here has tuned into a huge groundwater lake, Groundwater is fully exposed. Extensive overburden could be seen near the pits. It was very evident that no major efforts were made to create plantation in the area. Some new and young saplings could be seen along side the paths leading to the pits. Clearly these were planted very recently. 4. (8) Name of Mine/Area: Anangpur Silica sand mines, M/s. Rajdhani Minerals Corporation. Location: Village Anangpur Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity. 188.47 hec. Mineral Extracted : Silica sand, China clay, ordinary sand, stone RM and MS Status: seen one closed pit. Did not see any water. Status of environmental clearances: NOC granted by State Pollution Control Board. . (7) Name of Mine/Area: Mewla maharajpur Silica sand mines, M/s K.C. Ahuja Co. Location: Village Mewla Maharajpur Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 162.905 hec. Mineral Extracted : Silica sand, China clay, ordinary sand, stone road material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered for a four-lane highway. 9. (17) Name of Mine/Area: M/s. Sheeshpal Singh Location: Village Pali, Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 127.95 hec. Mineral Extracted : Silica, China, clay, sand, quartzite Status: Below groundwater table. Whether ground water is extracted : Yes. Status of environmental clearances: No clearance given. No environmental management plan. Large lake of ground water could be seen at the site. The lake apparently covers a few contiguous mining pits. No efforts to create plantation in the area except a few young saplings which seemed to have been planted very recently. Huge overburden could be seen near the pits. This mine is adjoining the main Delhi bypass of Faridabad-Gurgaon, which is being tendered for a four lane highway. 10. (20) Name of Mine/Area: M/s. Ram Chandar Location: Village Gothra, Mohatabad, Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 296 hec. Mineral Extracted : Silica sand, ordinary sand, road metal and masonry stone. Status: Below groundwater table Whether ground water is extracted : Yes. Status of environmental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. (25) Name of Mine/Area: M/s. Ashok Minerals industry Location: Plot No. 7, Village Manger, Distt. Faridabad: Total Area of Land on lease/Actual area under mining activity: 67.00 hec. Status: Above groundwater table Whether ground water is extracted: No. Status of environmental clearances: No clearance given. No environmental management plan. Observed surface stone mining. No water seen. New lease and so the mines have not reached groundwater levels as yet. But mine is on the Delhi bypass of Faridabad-Gurgaon road. 14. (23) Name of Mine/Area: M/s. Jaikrishan Impex Pvt. Ltd. Location: Plot No. 2 3, Village Manger, Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 44.785 hec and 56.4375 hec. Mineral Extracted : Stone mining Status: Below groundwater table Whether ground water is extracted: Yes. Status of environmental clearances: No clearance given. No environmental management plan. Was shown one pit with small water collection. But at a distance seen another pit with large amount of groundwater collected. This mine is being worked and clearly water must have been pumped from the mine. Deep pits seen. But mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Land on lease/Actual area under mining activity: 162 hec. Mineral Extracted : Sand china clay, stone (road and masonry) Status: Above groundwater table Whether ground water is extracted : No. Status of environmental clearances: No clearance given. No environmental management plan. Pit with no water seen. Being worked. Large amount of overburden was seen close to mine. 20. (5) Name of Mine/Area: Pali Silica Sand Mines, M/s. Lucky Minerals Location: Village Pali, Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 261.36 hec. Mineral Extracted : Sand, china clay stone (road metal and masonry) Status: Above groundwater table Whether ground water is extracted: No. Status of environmental clearances: No clearance given. No environmental management plan. Pit with no water seen. Being worked. Large amount of overburden was seen close to mine. Nominal plantation seen. But area with lessee is very large over - 261 ha - and no idea if other mines in the area have reached water levels. 21. (6) Name of Mine/Area: Mohabatabad Silica sand mines, M/s. P.K. Sethi Location: Village Mohtabad, Distt. Faridabad. Tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Village Haidpur, Distt. Gurgaon. Total Area of Land on lease/Actual area under mining activity: 18.125 hec. Mineral Extracted: Stone Status: Above groundwater table Whether ground water is extracted: No. Status of environmental clearances. No clearance given. No environmental management plan. Stone quarry. No plantation seen. Near habitation of Gurgaon town. 25. (21) Name of Mine/Area: Mr. Karan Singh Location: Village Nathpur, Distt. Gurgaon. Total Area of Land on lease/Actual area under mining activity: 5.996 hec. Mineral Extracted : Silica Sand . Status: Above groundwater level (surface mining) Whether ground water is extracted: No. Status of environmental clearances: No Clearance given. No environmental management plan. Stone quarry. No plantation seen. Mine on main Delhi-Gurgaon road at the border of Delhi. Mine lease recently awarded at the edge of the DLF residential colony. Allegations that illegal mining is being done at the Delhi side of this mine. Next to the protected area of Delhi forest. 19. In respect of the ground water regime the report states that: The key issue to examine is the impact of mining on the ground water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and reuse of water so as not to affect the ground water table in the areas. Most importantly, it stipulates that there should be no mining operations shall be carried out in the water table area. 24. The report of the Central Ground Water Board states very categorically that the ground water table is already at a critical stage in Faridabad. It states, 'The stage of ground water development of Faridabad block is 89.02 percent in dark category and no further abstraction of ground water should be carried out to avoid any adverse environment impact on ground water regimes. Thus no additional tube wells are advisable to be constructed for community water supply scheme even though they may not affect the storage in Badkhal lake.' The report further states that 'The domestic water supply to Faridabad town has to be catered and there are no surface water source which can be tapped.' 25. EPCA further observes that most of the mining is happening inside the municipal area of Faridabad. In fact, Department of Mines and Geology states in the letter dated October 12, 2002, 'It is submitted that the mineral rights of the mines vests with the State Government....The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Submissions for Confirming or varying Order dated 6th May, 2002 29. Having regard to the ground realities as reflected in the aforesaid reports, should the order passed on 6th May, 2002 be varied is the question? The continuance of the order has been strenuously objected to by the mining lease holders and also by the Government of Haryana. Various applications have been filed seeking vacation of the order and in support thereof, submissions have been made mainly by Mr. Shanti Bhushan, Dr. Rajeev Dhawan, Mr. Kapil Sibbal, Mr. K.B. Rohtagi and Mr. Dhruv Mehta representing the lease holders and Mr. Mukul Rohtagi, learned Additional Solicitor General representing the Government of Haryana. We have also heard Mr. Raju Ramachandran and Mr. Altaf Ahmad, learned Additional Solicitor Generals for the Ministry of Environment and Forest, Government of India, Mr. C.S. Vaidyanathan and Mr. Kaushik (in support of IA No. 1825/2002 filed by the villagers). Mr. Ranjit Kumar, learned Amicus and Mr. M.C. Mehta, Advocate/petitioner-in-person and Mr. Kailash Vasudeva for Government of Delhi have made submissions in support of closure of mining activity and for making the order dated 6th May, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Secretary, Ministry of Environment and Forests, New Delhi, in the attached application form (annexure) specifying, inter alia, details of the area and proposed process or operation. He shall also furnish an Environment Impact Statement and an Environmental Management Plan along with the application and such other information as may be required by the Central Government for considering the application. (3) The Central Government in the Ministry of Environment and Forests shall, having regard to the guidelines issued by it from time to time for giving effect to the provisions of the said Act, grant permission within a period of three months from the date of receipt of the application or where further information has been asked for from the applicant, within a period of three months from the date of the receipt of such information, or refuse permission within the said time on the basis of the impact of the proposed process or operation on the environment in the said area. 4. For seeking permission under this Notification, an application in the prescribed form (see Annexure), duly filled in, may be submitted to the Secretary, ministry of Environment and Forests, Paryavaran B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itor the compliance of the conditions stipulated while according environmental clearance by such State Governments and report to such State Government about the violations, if any, and the action taken thereon; (iii) The District Collectors of Gurgaon in Haryana and Alwar in Rajasthan shall be authorised by the respective State Governments to take necessary action under Section 5 of the said Act in respect of cases where the project proponents fail to implement the conditions. 2. The State Government concerned shall initiate steps to prepare a Master Plan for the development of the area covered by the Notification S.O. 319(E)dated 7th May, 1992 integrating environmental concerns and keeping in view the future land use of the area. This Master Plan shall be prepared by the concerned state agency, approved by the competent authority and finally published within two years from the date of issue of this Notification, in accordance with the procedure laid down in the Town and Country Planning Act or any other similar Act of the respective State Government. The State Government concerned shall implement the Master Plan forthwith after its final publication. 3. Any person desirou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the notification shall not be undertaken in any part of India unless it has been accorded environmental clearance by the Central Government in accordance with the procedure specified in the notification. 35. The issue in these matters is about the interpretation of the notification, its applicability also to mining leases granted earlier to the issue of the notification i.e. at the time of the renewal of such mining lease. The notification dated 27th January, 1994, to the extent material for the present purpose, reads as under : S.O.60(6) Whereas a notification under Clause (a) of Sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 inviting objections from the public within sixty days from the date of publication of the said notification, against the intention of the Central Government to impose restrictions and prohibitions on the expansion and modernization of any activity or new projects being undertaken in any part of India Unless environmental clearance has been accorded by the Central Government or the State Government in accordance with the procedure specified in that notification was published as S.O. No. 80(E) dated 28th January, 1993: And wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a sanctioned capacity and shall be valid for a period of five years for commencing the construction, operation or mining. III.(a) The reports submitted with the application shall be evaluated and assessed by the Impact Assessment Agency, and if deemed necessary it may consult a Committee of Experts, having a composition as specified in Schedule-III of this Notification. The impact Assessment Agency (IAA) would be the Union Ministry of Environment and Forests. The Committee of Experts mentioned above shall be constituted by the IAA or such other body under the Central Government authorised by the IAA in this regard. (b) The said Committee of Experts shall have full right of entry and inspection of the site or, as the case may be, factory premises at any time prior to, during or after the commencement of the operations relating to the project. (c) The Impact Assessment Agency shall prepare a set of recommendations based on technical assessment of documents and data, furnished by the project authorities, supplemented by data collected during visits to sites or factories, if undertaken, and interaction with affected population and environmental groups, if necessary. Summa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han ₹ 1 crore. 4. Concealing factual data or submission of false, misleading data/reports, decisions or recommendations would lead to the project being rejected. Approval, if granted earlier on the basis of false data would also be to be revoked. Misleading and wrong information will cover the following : -- False information; -- False data. -- Engineered reports. -- Concealing of factual data. -- False recommendations of decisions. SCHEDULE-1 (See paras 1 and 2) LIST OF PROJECTS REQUIRING ENVIRONMENTAL CLEARANCE FROM THE CENTRAL GOVERNMENT. 1. Nuclear Power and related projects such as Heavy Water Plants, nuclear fuel complex, rare earths. 2 to 19 ... 20. Mining projects (major minerals) with leases more than 5 hectares. 21 to 29 XXX XXXX XXXX SCHEDULE III (See sub-para III(a) of Para 2) COMPOSITION OF THE EXPERT COMMITTEES FOR ENVIRONMENTAL IMPACT ASSESSMENT 1. The Committee will consist of experts in the following disciplines : (i) Eco-System Management (ii) Air/Water Pollution Control (iii) Water Resource Management (iv) Flora/Fauna Conservation and Management (v) Land Use Planning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of five years, there was no circular or notification granting any time to apply for EIA under notification dated 27th January, 1994. The period to apply for environment clearance was extended upto 30th June, 2001 which deadline was extended upto 31st March, 2003, stating that it was to give opportunity to defaulting units to avail of the last and final opportunity to obtain ex post facto environment clearance. The notification dated 27th January, 1994 is applicable also to construction activity, it seems that this circular was issued to give opportunity to those who had undertaken constructions after issue of notification without compliance of stipulations therein. We are, however, not concerned in these matters with the construction which may have come up in breach of the notification. It does not appear that MOEF intended to legalise the commencement or continuance of mining activity without compliance of stipulations of the notification. In any case, a statutory notification cannot be notified by issue of circular. Further, if MOEF intended to apply this circular also to mining activity commenced and continued in violation of this notification, it would also show total non-sensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and formulation of suggestions is likely to take some more time. On 24th January, 2003, the CEC was granted time to file its report upto 8th February, 2003. CEC has filed three reports, the last having been filed on 7th February, 2003. 41. In an interim report dated 22nd June, 2003 CEC stated that the complete information had not been supplied to it by the State of Haryana. The report states that as per the information provided by the Haryana State, in Faridabad district there are 21 sanctioned major mineral mines with the varying size from 44.48 hectare to 516.518 hectare. In Gurgaon districts 54 mining leases have been sanctioned varying in size from 5.96 hectare to 802.322 hectare. All the mines of major minerals were operating in Faridabad district without obtaining statutory environmental clearance under the EP Act. It also noticed that in respect of the Aravalli Hills range being an acknowledged as eco friendly area under the Aravalli notification, clearances were being granted on the basis of examination of an expert group without any public hearing or participation of NGOs or the affected people. As already noticed, the delegation in favour of the State has been now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leases in such areas; v) mining activity may be allowed only as per the approved Mining Plans. Mines which are found to be operating at variance with the approved Mining Plans may be made liable for cancellation of lease and payment of exemplary compensation; vi) in view of rampant and indiscriminate mining, which was being done, a high level monitoring committee may be constituted comprising representatives of the State Government, MOEF, Indian Bureau of Mines, Director General of Mine Safety and reputed NGOs. This Committee may be empowered to monitor the implementation of the conditions imposed while approving Mining Plans, grants of environmental clearances and other approvals/clearances. Whenever any violation is detected, the Committee should have the powers to direct closure of the defaulting mines and also to impose fines commensurate with the seriousness of the violation; vii) in addition to the above (vi), the Officials of the State Government, Indian Bureau of Mines, MOEF, Director General of Mine Safety may independently monitor, at least once in three months, to ensure compliance of all statutory conditions; viii) the State Government may identify and notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the Committee the following information : i) mine wise details of stipulated conditions, which have been fulfilled and those which have not been fulfilled ii) details of five major mineral mines in Faridabad and Gurgaon Districts which have fulfilled all the conditions stated in the approved mining plans, environmental and other clearances; iii) details of the mines where mining activity has been undertaken without obtaining requisite environmental clearance. 43. In the absence of the information as aforesaid the CEC gave its suggestions on the basis of information available to it which are as under: i) the ban on mining activity may continue up to 2 km from Surajkund and Badkal Lakes, as per the Hon'ble Court's order dated 10.5.1996; (ii) each of the existing mines may be physically inspected by Inspection Team(s) comprising officials of the State Government, Indian Bureau of Mines, Director General of Mines Safety and the Ministry of Environment and Forest to report the specific conditions which have not been fulfilled/violated especially in respect of : a. section wise (bench wise) mining to be done as per approved mining plan; b. storage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made liable to pay stiff penalties including closure of the mines. 44. Some mining leases were granted prior to notification dated 27th January, 1994 and some after the issue of that notification. Even in respect of the leases granted prior to 27th January, 1994, the renewal of most of the leases has come up after issue of notification. Some of the leases are for extraction of major mineral, some for extraction of minor mineral and some for extraction of both major and minor mineral. In respect of none of the leases, before commencement of mining activity, EIA was obtained from the MOEF. In respect of mining in Aravalli Hills in Gurgaon, the relevant notifications dated 7th May, 1992, 29th November, 1999 and 28th January, 2003 have been noticed earlier. Under the notification dated 7th May, 1992, no permission was granted by the MOEF though some applications were pending before it when power was delegated to the State Government. Permissions were granted by the State Government after the powers were delegated to it. The delegation in favour of the State has since been withdrawn. Legal Parameters 45. The-natural sources of air, water and soil cannot be utilized if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the environment or to human health is to be decided in public interest, according to a reasonable person's test. (See Chairman Barton : The Status of the Precautionary Principle in Australia : (Vol. 22) (1998) (Harv. Envtt. Law Review, p. 509 at p.549-A) as in AP Pollution Control Board v. Prof. M.V. Nayuder (Retd) and Ors. [1999]1SCR235 ). 47. The mining operation is hazardous in, nature, it impairs ecology and people's right of natural resources. The entire process of setting up and functioning of mining operation require utmost good faith and honesty on the part of the intending entrepreneur. For carrying on any mining activity close to township which has tendency to degrade environment and are likely to effect air water and soil and impair the qualify of life or inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. The fullest disclosures including the potential for increased burdens on the environment consequent upon possible increase in the quantum and degree of pollution, has to be made at the outset so that public and all those concerned including authorities may decide whether the permission can at all be granted fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion: should the mining activity in areas in question be banned altogether or permitted and, if so, conditions to be provided therefor? The reports and suggestions of NEERI, EPCA and CEC have already been extensively noted. The effect of mining activity in area upto 5 km. from Delhi-Haryana border on Haryana side of the ridge and also in the Aravalli Hills is to be seen in light of these reports and another report dealt later. One of the aspect stated in these reports is about carrying on of mining activity in close proximity to the residential area and/or main roads carrying traffic. Mines and Minerals (Regulation and Development) Act and Rules thereunder 50. The grant of mining lease is governed by the Mines and Minerals (Regulation and Development) Act, 1957 (for short, 'the MMRD Act) which was enacted to provide for the development and regulation of mines and minerals under the control of the Union. Section 13 is the rule making power of the Central, Government. The Central Government is empowered to make rules to provide for the manner in which rehabilitation of flora and other vegetation, such as trees, shrubs and the like destroyed by reason of any mining ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plan. Rule 22(5) was inserted in the Rules by notification dated 27th September, 1994 to which certain amendments were made in terms of notification dated 17th January, 2000 also inserting by same notification Rule 22(4A). Sub-rule (4) to Rule 22 had been, earlier inserted by notification dated 27th September, 1994. 52. The grant of permission for mining and approving mining plan and the scheme by the Ministry of Mines, Government of India by itself does not mean that mining operation can commence. It cannot be accepted that by approving Mining Plan and Scheme by Ministry of Mines, Central Government is deemed to have approved mining and it can commence forthwith on such approval. Section 13 of the MMRD Act and the Rules made in exercise of powers under the said section, deal inter alia, with the aspect of grant of mining of lease and not commencement of mining operations. Rules made under Section 18, however, deal with commencement of mining operations and steps required to be taken for protection of environment by preventing or controlling any pollution which may be caused by mining operation. A mining lease holder is also required to comply with other statutory provisions suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holder of mining lease. Further, noise arising out of such operations shall be abated or controlled by the lessee at the source so as to keep it within the permissible limit. The mining operations shall be carried out in such a manner so as to cause least damage to the flora of the area and nearby areas. Every holder of mining lease shall take immediate measures for planting in the same area or any other area as selected by the authorized... officer and not less than twice the number of trees destroyed by reason of any mining operation and look after them during the subsistence of the license/lease and restore to the extent possible, other flora destroyed by mining operations. 54. The aforesaid measures are not required to remain only on paper but strictly complied for the protection of environment and control of pollution as a result and consequence of mining operations. National Forest Policy 55. In respect of mining in the forest area, we may also refer to the National Forest Policy, 1988 issued by Ministry of Environment and Forest, Government of India which, inter alia, notices that over the years, forests in the country have suffered serious depletion. One of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal policy which provides that beneficiaries who are allowed mining and quarrying in forest land and in land covered by trees should be required to repair and re-vegetate the area in accordance with established forestry practices to submit that the policy itself contemplates mining operations in the forest area. For present, we are not suggesting a complete ban of mining operations on forest land so long as it is possible to undertake the said operation on the sustainable development principles and after obtaining due approvals under various statutory provisions including Section 2 of the Forest (Conservation) Act, 1980. At the same time, we are unable to appreciate the commencement and continuation of mining over areas on which crores of the foreign funds have been spent for afforestation and plantation. Further, it is also not possible to accept the contention urged on behalf of the lease holders that only that part of such leased land where allegedly damage has been caused to plantation as a result of mining operations, be excluded from mining and not the entire area of the lease. For example, if the mining area is 5 hectare and damages as a result of mining is to plantation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the oldest geological formations in the world. Heavily eroded and with exposed outcrops of the state rock and granite, it has summits reaching 4950 feet above sea level. Due to its geological location, the Aravalli range harbours a mix of Saharan, Ethiopian, Peninsular, oriental and even Malayan elements of flora and fauna. In the early part of this century, the Aravallis were well wooded. There were dense forests, with waterfalls and one could encounter a large number of wild animals. Today, the changes in the environment--at Aravalli are severe. Though one finds a number of tree species in the hills, timber quality trees have almost disappeared. Despite the increase of population resulting in increase of demand from the forest, it cannot be questioned nor has been questioned that to save the ecology of the Aravalli mountain, the laws have to be strictly implemented. The notification dated 7th May, 1992 was passed with a view TO strictly implement the measures to protect the ecology of the Aravalli range. The notification was followed more in its breach. 59. In the aforesaid background, any mining activity on the area under plantation under Aravalli project cannot be per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of roads and the dust suppression measures to maintain the air quality within safe limits. The guidelines of operation in an eco-friendly manner have been issued by the State Government but the compliance is only partial, inasmuch as wind breaking walls are not proper, pollution control devices are not operating and the green belt around the crushing zones are nut maintained, identification of mines in the district is difficult. There does not seem to be mechanism to upgrade the mining technologies and methodologies to minimize the impact due to mining in the eco-sensitive zones in the district. There is no identified land where overburden could be temporarily dumped prior to being utilized for void filling and for other purposes. There does not seem to adequate awareness among the people in respect of the environmental problems. In some parts of the district, the ground water potential is already in the dark category. Lack of water conservation measures and rainwater harvesting may ultimately lead to water scarcity in the near future. 62. Having identified the environmental problems, various actions have been recommended by CMPDI for the eco restoration in the Aravalli Rang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining lease and granting new leases should be effected after examining the environmental protection measures taken by the lessee. Requisite data should be displayed on the internet to arouse awareness in public and for further usage. Stringent action should be taken for water conservation The Forest Department may even carry out the afforestation on behalf of mine operators. Expenses should, however, be borne by the mine operators. The afforestation shall be carried out keeping in view, inter alia, the consideration of checking the soil erosion. The mine lessee should implement the environmental management plan and mining plan approved by the concerned authority. In future, efforts in respect of search for sustainable development should broadly take into consideration resource potential in the region, the demand of the products and the supply options. Though the demand for the niche products existing in the Aravalli range which is one of the oldest mountain ranges in India will continue to grow, the supply options need to be given a closer look due to eco-sensitivity of the region. The environmental cost needs to be internalized in the cost of the product and there is need to limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is essential to assess the water quality of the various components of the hydrologic cycle, i.e., stream, ground water, surface water etc. It has been pointed out that since the surface water potential is, not promising in the district there is increased dependence on the ground water for meeting the agricultural, domestic and industrial requirement resulting in depletion of ground water resources in the district, it has been suggested that utmost care is required for further development of ground water in the areas where the recharge of the ground water is low. 66. Dealing with the flora and fauna, it has been pointed out that the earliest account shows that at one time the Aravalli hills were well covered with dhauk (Anogeissus pendula). Now, except in few places, viz., the Jhir Forest in Firozpur Jhirka (dedicated to Mahadeo Temple) and near Bhondsi recently regenerated with dhauk, the Aravallis are by and large, bereft of vegetation in the district. 67. It has been noticed that in order to take stock of the environmental problems, CPCB and CMPDI team made several visits to Aravalli hills and held discussion with the mine operators. State officials and local people. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diately start these measures in the areas where degradation has already taken place. The other recommendations have already been broadly noticed. 70. No one has raised any objection to the recommendations contained in the report of CMPDI. We accept the recommendations in principle. Modification of Order dated 6th May, 2002 Regarding Mining in Aravalli 71. Now, the question is should mining activities in the Aravalli range in Gurgaon district be permitted to restart and, to that extent, the order dated 6th May, 2002 be modified, meanwhile directing implementation of recommendations in the report of CMPDI and earlier referred reports. The other option is to first constitute a monitoring committee directing it to individually examine and inspect mines from environmental angle in the light of the said recommendations and file a report in this Court in respect of individual mines with its recommendations for restart or otherwise as also recommendation, if any, for the payment by the mine operators and/or by State Government towards environmental fund having regard to the precautionary principles and polluter pays principle and on consideration of that report, to decide the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en placed on a decision of this Court in Narmada's case (supra) holding that the notification is clearly prospective and, inter alia, prohibits the undertaking of a new project listed in Schedule I without prior environmental clearance from the Central Government. The contention urged was that since in Narmada's case, where construction had commenced nearly 8 years prior to the notification, same very notification was not held applicable. On the same analogy, it cannot have any applicability to the leases granted prior to the issue of notification. 73. No doubt, the notification is prospective but the question here is whether it would be applicable when the aspect of renewal comes up for consideration after the issue of the notification. In Narmada's case, it was not held that this notification will not apply at the stage of renewal. The observations made in para 129 of the said decision and relied upon by learned counsel for the lease holders have no relevance to determine the applicability of the notification at the stage of renewal. In Narmada's case, the environmental clearance had been granted in the year 1987 and this Court noticing that when it was granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces as a result of deforestation have become social menaces and the same should be prevented and that the concept that power coupled with the duty enjoined upon the respondents to renew the lease stood eroded by the mandate of the FC Act. It was held that The primary duty was to the community and that duty took precedence. In such cases, the obligation to the society must predominate over the obligation to the individuals. It would be apposite to reproduce what was said by Justice Mukherjee (as he then was) in paras 14 and 15 which read thus: 14. Here the case of the appellants is that they have invested large sums of money in mining operations. therefore, it was the duty of the authorities that the power of granting permission should have been so exercised that the appellants had the full benefits of their investments. It was emphasized that none of the appellants, had committed any breach of the terms of grant (SIC)or were there any other factors disentitling them to such renewal. While there was power to grant renewal and in these cases have were clauses permitting renewals, it might have cast a duty to grant such renewal in the facts and circumstances of the cases specially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion can commence without obtaining environmental impact assessment in terms of the notification. The Applicability of Forest (Conservation) Act, 1980 to areas treated as forest by State Forest Department 78. The provisions of the Act provide for the conservations of forest and for matters connected therewith or ancillary or incidental thereto. Any forest land or portion thereof cannot be used for any non-forest purposes or assigned by way of leases or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by the Government, except with the prior approval of the Central Government. Mining activity within forest area cannot be permitted in contravention of the provisions of the Act. The Act makes the contravention of any of the provisions of Section 2 as an offence punishable in the manner provided in the Act. 79. The controversy is in respect of certain leases where area under the lease is covered under notification issued under Section 4 and/or 5 of the Punjab Land Preservation Act, 1800. The question is whether such area is 'forest' of any kind. 80. Under Section 3 of the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forest in Government record irrespective of ownership would be a forest. The State of Haryana, besides having filed affidavits in the forest matters treating such areas as forest for the purposes of the FC Act has been seeking prior approval from the Central Government for diversion of such land for non-forestry purpose. Reference in this connection may also be made to the affidavit dated 8th December, 1996 filed by Banarsi Das, Principal Chief Conservator of Forest, Chandigarh, Haryana in civil Writ No. 171 of 1996 Environmental Awareness Forum v. State of Jammu and Kashmir and Ors. Our attention has also been drawn to letter dated 26th November, 2002 addressed by Divisional, Forest Officer, Faridabad to Mining Officer, Faridabad forwarding to him a list of blocked forest areas of Faridabad district and requesting him to ensure that the said forest areas are not affected by any mining operations as also to a letter dated 17th September, 2001 sent by Principal Chief Conservator of Forest, Haryana (Panchkula) to Director of Environment, Haryana stating therein that no mining activity can be permitted in the area. On the facts and circumstances of the case, we cannot permit the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the view that though the study conducted by CMPDI relates to mining activity in Aravalli Hills in Gurgaon district, in public interest the general safeguards and suggestions in that report deserve to be implemented in respect of mining in Faridabad district as well. 88. We have already extracted the recommendations of NEERI, as also violations noticed in the reports submitted by EPCA and the suggestions of EPCA, CEC and CMPDI. The Monitoring Committee shall inspect the leases in question in Faridabad District as well in the light of these recommendations and file its report containing suggestions on recommencement or otherwise of the mining activity therein. 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. 90. As earlier noticed as well, it would not be expedient to lift the ban on mining imposed in terms of the order of this Court dated 6th May, 2002 before ensuring implementation of suggestions of CMPDI and other recommendations of experts (NEERI, EPCA and CEC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be vacated or varied before consideration of the report of the Monitoring Committee constituted by this judgment. 2. The notification of environment assessment clearance dated 27th January, 1994 is applicable also when renewal of mining lease is considered after issue of the notification. 3. On the facts of the case, the mining activity on areas covered under Section 4 and/or 5 of Punjab Land Preservation Act, 1900 cannot be undertaken without approval under the Forest (Conservation) Act, 1980. 4. No mining activity can be carried out on area over which plantation has been undertaken under Aravalli project by utilization of foreign funds. 5. The mining activity can be permitted only on the basis of sustainable development and on compliance of stringent conditions. 6. The Aravalli hill range has to be protected at any cost. In case despite stringent condition, 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. 7. MOEF is directed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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