Ashok Bhushan, J.
By this petition, the petitioner has prayed for quashing the order dated 10/4/2012, issued by the State Government by which the petitioner who has been granted mining lease of 4.168 hectares for mining mineral namely:Diaspore/Pyrophillite, has been directed to obtain environmental clearance from the Ministry of Environment and Forest so that the lease deed can be signed. A mandamus has also been prayed for commanding the State Government to execute the lease deed for excavation of Pyrophillite and Diaspore in respect of an area measuring 4.168 Hectares situate at Village Puradhankuon, Tehsil Mahrauni, district Lalitpur.
The brief facts of the case are: the petitioner made an application for a prospecting licence of Pyrophillite and Diaspore over an area measuring 32.67 acres vide application dated 27/8/1994, but the State Government vide order dated 23/9/1997 granted only an area measuring 3.24 hectares for a period of 2 years. The State Government vide order dated 30/8/2010, modified its earlier order by granting an additional lease of the aforesaid mineral for a period of 20 years for a total area of 4.168 hectares. The petitioner got prepared a mining plan which was approved and recognised by the Government of India, Ministry of Mines, Indian Bureau of Mines, Nagpur. Petitioner submitted the copy of the lease deed to the State Government. The Apex Court in Deepak Kumar and Ors Vs. State of Haryana and Ors, (2012) 4 SCC 629, issued a direction to all the State Governments that leases of minor minerals including their renewal for an area less than five hectares be granted by the States/Union Territories only after getting environmental clearance from Ministry of Environment and forest. The State Government vide Government Order dated 22/3/2012, directed all the District Magistrates to comply with the order of the Apex Court passed in Deepak Kumar's case (supra). The State Government issued an order dated 10/4/2012, directing the District Magistrate to get the environmental clearance certificate obtained from the petitioner so that the lease deed can be signed. The petitioner being aggrieved by the order dated 10/4/2012, has come up in this writ petition challenging the aforesaid order.
Shri Narendra Mohan, learned counsel for the petitioner in support of the writ petition submitted that the petitioner's mining lease being for 4.168 hectares i.e. for an area less than five hectares, petitioner is not obliged to obtain environmental clearance as per the notification dated 14/9/2006, issued under the provisions of the Environment (Protection) Act, 1986, "hereinafter called the "Act, 1986". He submits that the said notification required obtaining of environmental clearance only with regard to leases which are for an area of 5 hectares or above. It is further submitted that the Apex Court in Deepak Kumar's case (supra) was considering a case of minor mineral only and direction by the Apex Court is applicable with regard to minor minerals and has no application with regard to major minerals.
Shri Bal Krishna, learned Standing Counsel refuting the submission of the learned counsel for the petitioner submits that no error has been committed by the State Government for directing the petitioner to obtain environmental clearance. When for minor minerals it is required to obtain environmental clearance of less than area of 5 hectares, the same requirement has to be complied with regarding major minerals also. He submits that although in Deepak Kumar's case (supra) specific directions were issued for minor minerals only, but such directions are fully applicable with regard to major minerals also.
We have considered the submissions of the learned counsel for the parties and have perused the record.
The only issue to be considered in this writ petition is as to whether the decision of the State Government directing the petitioner to obtain environmental clearance for execution of mining leases for an area of 4.168 hectares with regard to a major minerals is justified or deserves to be set-aside. The Act, 1986, has been enacted by the Parliament to provide for the protection and improvement of environment and for matters connected therewith.
Section 2 sub-section (a) of the Act, 1986 defines "Environment" which is as follows:
"2.Definitions.- In this Act, unless the context otherwise requires,--
(a) "environment" includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property;"
Rules have been framed under the Act, 1986 namely: The Environment (Protection) Rules, 1986, "hereinafter called the "Rules, 1986". The Ministry of Environment and Forest has issued a notification dated 14/9/2006, in exercise of power under Section 3 of the Act, 1986 and sub-rule 3 of Rule 5 of the Rules, 1986. The said notification reads as follows:
"Now, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986 and in supersession of the notification number S.O. 60 (E) dated the 27th January, 1994, except in respect of things done or omitted to be done before such supersession, the Central Government hereby directs that on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Government under sub-section (3) of section 3 of the said Act, in accordance with the procedure specified hereinafter in this notification."
Schedule to the notification Item I(a) deals with mining of minerals. Item 1(a) of the schedule is as follows:
SCHEDULE
(See paragraph 2 and 7)
LIST OF PROJECTS OR ACTIVITIES REQUIRING PRIOR ENVIRONMENTAL CLEARANCE
| Project or Activity | Category with threshold limit | Conditions if any | |||
| A | B | ||||
| 1 | Mining, extraction of natural resources and power generation (for a specified production capacity) | ||||
| (1) | (2) | (3) | (4) | (5) | |
| 1(a) | Mining of minerals | 50 ha. of mining lease area Asbestos mining irrespective of mining area | 50 ha 5 ha. of mining lease area | General Condition shall apply Note Mineral prospecting (not involving drilling) are exempted provided the concession areas have got previous clearance for physical survey | |
| Â | Â | Â | Â | Â | Â |
One of the fundamental duties of every citizen as enshrined under Article 51-A sub-clause (g) is to protect and improve the natural environment including forest, lakes, rivers and wildlife, and to have compassion for living creatures. Article 51-A sub-clause (g) is quoted below:
"Art.51A.It shall be the duty of every citizen of India-
(a).....
(b).....
(c)......
(d)....
(e)....
(f).....
(g) to protect and improve the natural environment including forest, lakes, rivers and wildlife, ad to have compassion for living creatures."
The Apex Court in State of Tamil Nadu Vs. M/s Hind Stone and Ors, (1981) 2 SCC 205, had sounded a caution that every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. Following observations were made in paragraph 6 of the said judgment which is quoted below:
"6. Rivers, forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation. It is recognised by Parliament."
The Apex Court recently in JT 2012 (7) SC 50, Monnet Ispat and Energy Ltd. Vs. Union of India and Ors, has emphasised about conservation, preservation and intelligent utilisation of natural resources. Following observations were made by the Apex Court in paragraph 103 of the said judgement which is quoted below:
"103. First, few general observations. Minerals - like rivers and forests - are a valuable natural resource. Minerals constitute our national wealth and are vital raw-material for infrastructure, capital goods and basic industries. The conservation, preservation and intelligent utilization of minerals are not only need of the day but are also very important in the interest of mankind and succeeding generations. Management of minerals should be in a way that helps in country's economic development and which also leaves for future generations to conserve and develop the natural resources of the nation in the best possible way. For proper development of economy and industry, the exploitation of natural resources cannot be permitted indiscriminately; rather nation's natural wealth has to be used judiciously so that it may not be exhausted within a few years."
The natural resources are not only for present generation which is living on the earth rather it is for all future generation. The concern regarding environment degradation is being continuously shown by natural scientists, international organisations and human right activists.
The Apex Court in Deepak Kumar's case (supra) noticed continuous degradation of environment and need to provide a regulatory measure for checking adverse environmental impact of the mining activities. It was noticed by the Apex Court that there was an attempt to flout the notification dated 14/9/2006 by breaking the homogeneous areas into pieces of less than five hectares. The Apex Court noticed that although the mining of major minerals typically undergo environmental impact assessment and environmental clearance procedure, but due attention has not been given to environmental aspects of mining of mineral minerals. Paragraph 14 of the judgement is quoted below:
"14. The Government of India was receiving various reports regarding the adverse impacts on riverbeds and groundwater due to quarrying/mining of minerals. The Mines and Minerals (Development and Regulation) Act, 1957 empowers the State Governments to make rules in respect of minor minerals. It was noticed that proposals for mining of major minerals typically undergo environmental impact assessment and environmental clearance procedure, but due attention has not been given to environmental aspects of mining of minor minerals. Environmental Impact Assessment Notification of 1994 did not apply to the mining of minor minerals, noticing that minor minerals were brought under the ambit of the Environmental Impact Assessment Notification of 2006 and as per the said notification mining of minerals with a lease area of 5 hectares and above require prior environmental clearance."
Report of the Ministry of Environment and Forest, has been noticed and approved. It is relevant to note that in paragraph 4.1 of the report the definition of 'minor mineral' was noticed and it was also noticed that minerals have been classified into major and minor minerals based on their end use rather than level of production, level of mechanisation, export and import etc.
Certain minor minerals namely: Sand is not to be treated as minor mineral when used for the purposes mentioned in Rule 70 of The Mineral Concession Rules, 1960. It is useful to quote paragraph 19 of the said judgment which is as as under: "19.For an easy reference, we may extract the issues and recommendations made by the MoEF, which are as follows:
"4.0 Issues and recommendations
4.1Definition of Minor Mineral:
The term 'minor mineral' is defined in clause (e) of Section 3 of MMDR Act, 1957 as:
'3(e) "minor minerals" means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes and any other material which the Central Government may, by Notification in the Gazette of India declare to be a minor mineral;'
The term `ordinary sand' used in clause (e) of Section 3 of the MMDR Act, 1957 has been further clarified in rule 70 of the MCR, 1960 as:
'70.Sand not be treated as minor mineral when used for certain purpose.- Sand shall not be treated as a minor mineral when used for any of the following purposes, namely:
(i) purposes of refractory and manufacture of ceramic,
(ii) metallurgical purposes,
iii) optical purposes,
(iv) purposes of stowing in coal mines,
(v) for manufacture of silvicrete cement,
(vi) manufacture of sodium silicate and
(vii) for manufacture of pottery and glass.
Additionally, the Central Government has declared the following minerals as minor minerals: (i) boulder, (ii) shingle, (iii) chalcedony pebbles used for ball mill purposes only, (iv) limeshell, kankar and limestone used in kilns for manufacture of lime used as building material, (v) murrum, (vi) brick-earth, (vii) fuller's earth, (viii) bentonite, (ix) road metal, (x) reh-matti, (xi) slate and shale when used for building material, (xii) marble, (xiii) stone used for making household utensils, (xiv) quartzite and sandstone when used for purposes of building or for making road metal and household utensils, (xv) saltpetre and (xvi) ordinary earth (used or filling or levelling purposes in construction or embankments, roads, railways building).
It may thus be observed that minerals have been classified into major and minor minerals based on their end use rather than level of production, level of mechanization, export and import etc. There do exist some minor mineral mines of silica sand and limestone where the scale of mechanization and level of production is much higher than those of industrial mineral mines. Further, in terms of the economic cost and revenue, it has been estimated that the total value of minor minerals constitutes about 10% of the total value of mineral production whereas the value of non metallic minerals comprises only 3%. It is, therefore, evident that the operation of mines of minor minerals need to be subject to some regulatory parameters as that of mines of major minerals.
Further, unlike India there does not exist any such system based on end usage in other countries for classifying minerals into major and minor categories. Thus, there is a need to re-look at the definition of 'miner minerals' per se.
It is, therefore, recommended that Ministry of Mines along with Indian Bureau of Mines, in consultation with the State Governments may re-examine the classification of minerals into major and minor categories so that the regulatory aspects and environment mitigation measures are appropriately integrated for ensuring sustainable and scientific mining with least impacts on environment.
4.2 Size of the Mine Lease:
Area for grant of mine lease varies from State to State. Maximum area which can be held under one or more mine lease is 2590 ha or 25.90 sq.miles in Jammu and Kashmir. Rajasthan prescribed a minimum limit of 1 ha for a lease. Maximum area prescribed for permit is 50x50 m. In most of the States area of permit is not specified in the rules. It has recently been observed by Punjab and Haryana High Court in its order dated 15.5.2009 that State Government are apparently granting short term permits by dividing the mining area into small zones in effect avoids environmental norms.
There is, thus a need to bring uniformity in the extent of area to be granted for mine lease so as to ensure that eco- friendly scientific mining practices can be adopted. It is recommended that the minimum size of mine lease should be 5 ha. Further, preparation of comprehensive mine plan for contiguous stretches of mineral deposits by the respective State Governments may also be encouraged. This may suitably be incorporated in the Mineral Concession Rules, 1960 by Ministry of Mines.
4.3 Period of Mine Lease:
The period of lease varies from State to State depending on type of concessions, minerals and its end use. The minimum lease period is one year and maximum 30 years. Minerals like granite where huge investments are required, a period of 20 years is generally given with the provisions of renewal. Permits are generally granting for short periods which vary from one month to a maximum one year. In States like Haryana, minor mineral leases are auctioned for a particular time period. Mining is considered to be capital intensive industry and considerable time is lost for developing the mine before it attains the status of fully developed mine. If the tenure of the mine lease is short, it would encourage the lessee to concentrate more on rapid exploitation of mineral without really undertaking adequate measures for reclamation and rehabilitation of mined out area, posing thereby a serious threat to the environment and health of the workers and public at large.
There is thus, a need to bring uniformity in the period of lease. It is recommended that a minimum period of mine lease should be 5 years, so that eco friendly scientific and sustainable mining practices are adopted. However, under exceptional circumstances arising due to judicial interventions, short term mining leases / contracts could be granted to the State Agencies to meet the situation arising there from.
4.4 Cluster of Mine Approach for Small Sized Mines:
Considering the nature of occurrence of minor mineral, economic condition of the lessee and the likely difficulties to be faced by Regulatory Authorities in monitoring the environmental impacts and implementation of necessary mitigation measures, it may be desirable to adopt cluster approach in case of smaller mine leases being operated presently. Further, these clusters need be provided with processing/crusher zones for forward integration and minimizing excessive pressure on road infrastructure. The respective State Governments / Mine Owners Associations may facilitate implementation of Environment Management Plans in such cluster of mines.
4.5 Requirement of Mine Plan for Minor Minerals:
At present, most of the State Governments have not made it mandatory for preparation of mining plan in respect of minor minerals. In some States like Rajasthan, eco friendly mining plans are prepared, which are approved by the State Mining Department. The eco friendly mining plans so prepared, though conceptually welcome, are observed to be deficient and need to be made comprehensive in a manner as is being done for major minerals. Besides, the aspects of reclamation and rehabilitation of mined out areas, progressive mine closure plan, as in vogue for major minerals could be introduced for minor minerals as well.
It is recommended that provision for preparation and approval of mine plan, as in the case of major minerals may appropriately be provided in the Rules governing the mining of minor minerals by the respective State Governments. These should specifically include the provision for reclamation and rehabilitation of mined out area, progressive mine closure plan and post mine land use.
4.6 Creation of Separate Corpus for Reclamation / Rehabilitation of Mines of Minor Minerals:
Mining of minor minerals, in our country, is by and large unorganized sector and is practiced in haphazard and unscientific manner. At times, the size of the leasehold is also too small to address the issue of reclamation and rehabilitation of mined outs areas. It may, therefore, be desirable that before the concept of mine closure plan for minor minerals is adopted, the existing abandoned mines may be reclaimed and rehabilitated with the involvement of the State Government. There is thus, a need to create a separate corpus, which may be utilized for reclamation and rehabilitation of mined out areas. The respective State Governments may work out a suitable mechanism for creation of such corpus on the `polluter pays' principle. An organizational structure may also need to be created for undertaking and monitoring these activities.
4.7 Depth of Mining:
Mining of minerals, whether major or minor have a direct bearing on the hydrological regime of the area. Besides, affecting the availability of water as a resource, it also affects the quality of water through direct run of going into the surface water bodies and infiltration / leaching into groundwater. Further, groundwater withdrawal, dewatering of water from mine pit and diversion of surface water may cause surface and sub surface hydrologic systems to dry up. An ideal situation would require that quarrying should be restricted to unsaturated zone only above the phreatic water table and should not intersect the groundwater table at any point of time. However, from the point of view of mineral conservation, it may not be desirable to impose blanket ban on mining operation below groundwater table.
It is, therefore, recommended that detailed hydro-geological report should be prepared in respect of any mining operation for minor minerals to be undertaken below groundwater table. Based on the findings of the study so undertaken and the comments/ recommendations of Central Ground Water Authority/ State Ground Water Board, a decision regarding restriction on depth of mining for any area should be taken on case to case basis.
4.8 Uniform Minor Mineral Concession Rules:
The economic value of the minor minerals excavated in the country is estimated to contribute to about 9% of the total value of the minerals whereas the non metallic minerals contribute to about 2.8%. Keeping in view the large extent of mining of minor minerals and its significant potential to adversely affect the environment, it is recommended that Model Mineral Concession rules may be framed for minor minerals as well and the minor minerals may be subjected to a simpler regulatory regime, which is, however, similar to major minerals regime.
4.9 River Bed Mining:
4.9.1 Environment damage being caused by unregulated river bed mining of sand, bazari and boulders is attracting considerable attention including in the courts. The following recommendations are therefore made for the river bed mining.
(a)In the case of mining leases for riverbed sand mining, specific river stretches should be identified and mining permits/lease should be granted stretch wise, so that the requisite safeguard measures are duly implemented and are effectively monitored by the respective Regulatory Authorities.
(b)The depth of mining may be restricted to 3m/water level, whichever is less.
(c) For carrying out mining in proximity to any bridge and/or embankment, appropriate safety zone should be worked out on case to case basis, taking into account the structural parameters, locational aspects, flow rate etc. and no mining should be carried out in the safety zone so worked out.
5.0 Conclusion:
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)"
It is true that in Deepak Kumar's case (supra), specific directions have been issued by the Apex Court only with regard to minor minerals, but looking to the spirit of the order and the concern which has been expressed in the said judgment of the Apex Court excluding major minerals from the requirement of environmental clearance shall be against the spirit of the judgment and object which is sought to be achieved. It is to be noticed that separate rules have been framed namely: The Mineral Conservation and Development Rules, 1968. Rule 31 of the aforesaid Rule provides for Protection of Environment. Rule 31 is quoted below:
"31. Protection of environment.-Every holder of a prospecting licence or a mining lease shall take all possible precautions for the protection of environment and control of pollution while conducting prospecting, mining, beneficiation or metallurgical operations in the area."
Even in Deepak Kumar's case (supra) as noted above, the Apex Court clearly noticed that for grant of mining leases of major mineral, environmental impact assessment and environmental clearance procedure is adopted. The judgment proceeded on the premises that for major minerals, environmental clearance procedure is to be followed.
As noticed above, the caution for preservation of natural resources of society have been given long back by the Apex Court several decades ago, which concern has been repeatedly expressed, to accept the contention that the said caution and concern should not be implemented with regard to major minerals is to defeat the very purpose and object of the concern shown by the Apex Court in its several judgments. The State Government having taken a decision to require environmental clearance for lease measuring 4.168 hectares can neither be said to be arbitrary nor against the law. The step taken by the State Government towards getting the environmental impact assessment made before the lease is granted is a step taken towards a right direction which needs no interference by this Court in exercise of writ jurisdiction. We thus, do not find any good ground to quash the order of the State Government dated 10/4/2012.
Learned counsel for the petitioner has lastly submitted that in event the petitioner makes an application before the State Government for environmental clearance under the notification dated 14/9/2006, the State Environmental Impact Assessment Committee be directed to consider the grant of environmental clearance in a time bound period.
We, observe that in event the petitioner makes an appropriate application for environmental clearance in accordance with the notification dated 14/9/2006, the same shall be considered by the competent authority expeditiously and an endeavour be made to dispose of the said application within the statutory period as prescribed under the notification dated 14/9/2006.
Subject to the above observation, the writ petition is dismissed.