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TMI Blog2004 (3) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... of lack of effective enforcement of environmental laws and non-compliance of the statutory norms. This Court has repeatedly said that the right to live is a fundamental right under Article 21 of the Constitution and it includes the right to enjoyment of pollution-free water and air for full enjoyment of life. 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 such as Environm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 State Government to take a compete summersault in these proceedings and contend that the earlier stand that the area is forest was under some erroneous impressions. In the present case, for the purposes of the FC Act, these areas shall be treated as forest and for use of it for non-forestry purpose, it would be necessary to comply with the provisions of the FC Act. We may also note that assuming that there was any confusion or erroneous impression, it ought to have been first sorted out at appropriate level and where affidavits had been filed in this Court, clarifications/orders sought before issue of the mining leased respect of such area. Conclusions: 1. The order dated 6th May 2002, prohibiting mining activities, cannot be vacated or varied before considering the Monitoring Committee s report. 2. The notification dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 submitted, it was stated that explosives are being used for rock blasting for the purpose of mining; unscientific mining operation was resulting in lying of overburden materials (topsoil and murmur remain) haphazardly; and deep mining for extracting silica sand lumps is causing ecological disaster as these mines lie un reclaimed and abandoned. It was, inter alia, recommended that the Environmental Management Plan (EMP) should be prepared by mine lease holders for their mines and actual mining operation made operative after obtaining approval from the State Departments of Environment or HPCB; the EMP should be implemented following a time bound action plan; land reclamation and afforestation programmes shall also be included in the EMP and must be implemented strictly by the implementing author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the natural tend profile of the area. Mined pits and unattended dumps of overburdened left behind during the mining operations are the irreversible consequences of the mining operations and rock blasting, movement of heavy vehicles, movements and operations of mining equipment and machinery cause considerable pollution in the shape of noise and vibration. The ambient air in the mining area gets highly polluted by the dust generated by the blasting operations, vehicular movement, loading/unloading/transportation and the exhaust gases from equipment and machinery used in the mining operations. It was directed that in order to preserve environment and control pollution within the vicinity of two tourist resorts, it is necessary to stop mining activity within 2 kms. radius of the tourist resorts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 habitat and also pumping of large quantity of ground water from mining pits. It was also stated that the ground water level was being depleted as a result of the mining activity. Further, the query dust that comes out of mining pits is a serious health hazard for human population living nearby and also the wild animal's inhabiting the sanctuary pointing out that the mining and extraction of ground water had been banned in National Capital Territory of Delhi and the ridge being protected as per the order of this. Court, it is necessary, that the ridge on the Haryana side is also protected - that being the extension of the range and, therefore, mining, withdrawal of ground water and destruction of flora, etc., should also be restricted outside Delhi or at least upto 5 kms. from Delhi-Haryana border to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tside 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 with the conditions laid down in the regulatory procedures like the No Objection Certificate (NOC) granted by authorities to the mine owners; 2. Evidence of land and habitat degradation in and around the mining sites; 3. Evidence of misuse and shortage of ground water in the area; 4. Assessment of the implication of such activities for the local ecology and drinking water sources in the area. 13. During the visit, prima facie, EPCA found evidence of clear violation of some of the key conditions of order of this court dated May 10, 1996. EPCA 1st Report and Recommendations 14. The EPCA gave its report dated 9th August, 2002. It would be useful to reproduce the said report in extenso as under: "Anangpur area and its vicinity : EPCA inspected the mining sites owned by Mohan Ram and Company as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 EPCA noticed mining sites very close to the roads and also very close to the ecologically sensitive area of Asola sanctuary near the Goodwill mines. Stone crushing sites in Pali : EPCA has inspected the stone crushing sites in the area. All sites had a lot of material and trucks being loaded. It is difficult to establish if these are the left over material from the past or were products from banned sites or from sites from outside the notified area. EPCA was informed that after the Hon'ble Supreme Court directive of May 2002, the stone crushers were not being operated, except between the hours of 5 am to 9 am. EPCA was, therefore, unable to verify the working conditions of these crushers. But it did not find any evidence of afforestation as stipulated by the NEERI directive or any evidence of dust minimizing equipment. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not be renewed without obtaining no-objection certificates from the Haryana Pollution Control Board as also the Central Pollution Control Board (CPCB). It stipulated that "unless both the boards grant no objection certificate, the mining leases in the said area shall not be renewed". Mining in the 2-5 kms was allowed under condition that there would be strict adherence to the environment management plan laid down by the NEERI. It has to be noted here that the CPCB had in its report to the Hon'ble Court in 1996 stated that the "deep mining for silica is causing an ecological disaster". CPCB has recommended that mining activity "should be stopped within a radius of 5 kms from Badkal and Surajkund. The subsequent report of NEERI dated 20.4.1996, recommended green belt at 1 km radius all around the boundaries of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in the middle layer . Top soil on top layer and afforestation. layer and afforestation EPCA saw no evidence that this recommendation had even been attempted to be followed. All abandoned mines were left open arid degraded. The entire region was pockmarked with deep holes and overburdens 3. No discharge of effluent or groundwater outside lease premises. Must take measures for rainwater harvesting and reuse of water so as not to affect the ground water table in the areas. No mining operations shall be carried out in the water table area. Not done Gross violation. See section on water for details. 4. Ambient air quantity standards to be complied with No evidence. Mine was closed. 5. Noise level at the boundary shall conform with noise standards No evidence Mine was closed. 6. Green belt around lease area and roadside Not done. 7. Clearance of groundwater board for the usage. of the groundwater will be obtained, for the conservation of groundwater and to ascertain that there will be no impacts on the groundwater table of the area. No evidence. Groundwater board has not given any clearance that we could ascertain. From the above it (SIC) it is clear that little or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reserves. This fact was also confirmed in the interviews done by EPCA at site. 3. CGWB also notes that contrary to what has been claimed, the mined water is not being pumped into abandoned pits to recharge the groundwater. Instead the groundwater pumped is discharged into the surrounding nalas, leading to "wastage" of groundwater. For instance, in the case of Anangpur mines, the water was pumped into the Bhuria Nala and in the case of Pali, the groundwater was discharged into a nala to the Badkal lake and from Manger mine towards Dhauj lake causing "enormous losses to groundwater resources of the area". The mined water is also full of silt, which reduces recharge as well. 4. Furthermore, CGWB notes that the large surface lakes in the mines are leading to huge losses of groundwater through evaporation. 5. The Central Ground Water Authority (CGWA) has notified these areas - South district or NCT Delhi, Faridabad, Ballabhgarh Municipal Corporation area, Gurgaon town as water stressed areas and has put regulatory measures on ground water development in these areas. Given all this, CGWB concludes that the "dewatering of mines in the Aravalli hills ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s indeed sad to note the plight of people living in these hills who are caught between losing their water dependent livelihood and between losing their only desperate livelihood to break stones in the quarries. It is essential that the Government of Haryana seriously implements programmes to enhance the land based livelihood of people -- agriculture, animal care and forestry. Local people must not be thrown into making false choices, which may secure their present but will destroy their future. Already, all the villages visited by EPCA complained of dire and desperate shortages of drinking water. Women talked about long queues before taps to collect water. Clearly, water resources of the region are critical inputs to development and cannot be wasted and destroyed like this. The state government must come up with strategies to involve local communities in the future development of this region. We have been given to understand that under the mining lease, 10 per cent of the royalty is to be given to local villagers. We have also understood that the turnover is of the mining operations in this area is substantial -- between ₹ 50 lakhs to ₹ 1 crore a day were the gross es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions are going on in the area. The Hon'ble Court also noted the bias of the State Government to shield the offenders and has said that because there is prima facie evidence of the involvement of a 'person who holds the high position of the cabinet minister in the state', the enquiry should be done by CBI. This enquiry is still ongoing. During the examination of the case, EPCA Was told of other persons involved in the mining activity who are highly influential and part of the ruling political parties in the state and center. In this respect, EPCA would recommend that tighter and constant monitoring of the area must be done by a Central Government agency. To increase accountability, EPCA would also recommend that the environment management plan (EMP) for the mining area as well as the conditions of the NOC should be made a public document. All other subsequent monitoring reports of this region must be available publicly, preferably on the website of the monitoring agency." 16. With the report, a note given by the Chairmen, Central Ground Water Board on impact of pumping of ground water from mines and ground water regime in mining area and its buffer zone in Ara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tering of mines has resulted in rise of ground water levels in surrounding areas. 4. It has been observed that drainage pattern of the area has been modified due to haphazard mining and dumping of waste material which has bearing on natural path of ground water flow in the area. 5. It is claimed that abandoned pits act as recharge pits and in some cases the pumped ground water is put in these pits so there may not be substantial modification in the conditions of ground water regime. All the ground water pumped cut from Anangpur mine has not been put into abandoned adjoining pits resulting in wastage of ground water by discharge into Bhuria Nala. Observation have indicated that Bhuria Nala which was ephemeral stream became a perennial stream during mining operations and now flow has stopped after closure of mining activity. Similarly, pumped out ground water from Pali mine was being discharged in a easterly flowing nala to Badkal Lane and from Manger mine in a south westerly flowing nala towards Dhauj lake causing enormous losses to ground water resources of the area. Further, the pumped out water cannot be recharged effectively due to its high silt content. In silica sand mines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 186.52 hec. Mineral Extracted : Silica Sand Mines Status of Mining : Above groundwater level Whether groundwater is extracted : No. Status of environmental clearances : No clearance given. No environmental management plan. This mine is located very close to the Delhi border (in close proximity to the Asola sanctuary). EPCA members were shown two pits, which were not being worked currently. There was no groundwater exploitation seen in these pits. Only brown stagnant rain water was seen. But what was very clear was that this mining lease was adjoining the boundary of Delhi. Only recent plantation of sapling was noticed along the path. 2. (13) Name of Mine/Area: Anangpur Silica Sand Mines M/s. Mohan Ram and Co. Location : Village Anangpur, Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity : 175.00 Hec. Mineral Extracted: Silica Sand Mines. Status of Mining : Below groundwater level Whether ground water is extracted : Yes Status of environmental clearances : NOC granted by state pollution control board for renewal of lease in 1999. No environmental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Purni Devi. Location: Village Badkal Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 369.4 hec. (Of this 121 hec. Falls within 2 km of Badkal Tourist Complex where mining has been banned) Mineral Extracted : Silica sand, ordinary sand, road metal, masonry stone and minor mineral Status: mining above groundwater table Whether ground water is extracted : No. Status of environmental clearances: No clearance given. No environmental management plan. EPCA members saw one pit located next to the border of Delhi. The mining area is hard rock and the pit was being worked for stone. The mining site was at the boundary of Delhi and the Asola sanctuary was seen at a close distance. This mine is also adjoining the road. 7. (2) Name of Mine/Area: Mohan Ram & Co. Proprietor Kartar Singh. Location: Village Pali Distt Faridabad. Mineral extracted : Ordinary stone, road metal, masonry stone Under litigation in High Court of Delhi. 8. (11) Name of Mine/Area: Pali Silica Sand Mines, M/s Goodwill Mineral Corporation. Location: Village Pali, Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 50.5 hec. Min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This mine is adjoining the main bypass of Faridabad-Gurgaon, which is being tendered for a four-lane highway. 11. (22) Name of Mine/Area: M/s. Maruti Minerals. Location: Plot No. 1 Village Manger, Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 63.225 hec. Mineral Extracted : Silica sand, China clay, ordinary sand, road metal and masonry stone. Status: above groundwater. Whether ground water is extracted : No. Status of environmental clearances: clearance given. No environmental management plan. Observed surface stone mining. No water seen. New lease and so the mines have not reached ground water levels as yet. But mine ear Delhi bypass of Faridabad-Gurgaon road. 12A. (1) Name of Mine/Area: M/s. Seven Mines and Minerals Pvt. Ltd. Location: Plot No. 6, Village Manger, Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 59.3875 hec. Mineral Extracted : Ordinary sand, road metal and masonry stone. Status: Above groundwater table Whether ground water is extracted : No. Status of environmental clearances: Clearance given. No environmental management plan. Observed surface stone mining. No wat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent plan. Exposed groundwater could be seen. This mine was also been worked. Deep pits seen in this mine. 16. (24) Name of Mine/Area: M/s. Patram Mines and Minerals Pvt. Ltd. Location: Plot No. 11, Village Manger, Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 126.75 hec. Mineral Extracted : Silica sand and 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 water seen. Some efforts have been made to create plantation. 17. (18) Name of Mine/Area: M/s. Sheeshpal Singh Location: Village Pali, Distt. Faridabad. Total Area of Land on lease/Actual area under mining activity: 44.48 hec. Mineral Extracted : Solica/Ord. Sand & stone, road metal and masonry stone Status: Above groundwater table Whether ground water is extracted : No. Status of environmental clearances: No clearance given. No environmental management plan. Recent lease. Mining activity had recently started. New pit seen and as yet only stone was being quarried. 18. (4) Name of Mine/Area: Pali Silica Sand Mines, M/s. S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh and Co. Location: Village Bandhwari, Distt. Gurgaon. Total Area of Land on lease/Actual area under mining activity: 91.20 hec. Mineral Extracted : Silica Sand, Ord. Sand, china clay, quartz & stone mine. Status: Above groundwater table Whether ground water is extracted : No. Status of environmental clearances: Clearance given. No environmental management plan. Stone quarry. Very recent lease granted and clearance has only been done in April 2002. Large seemingly abandoned, pits seen on road. Labourer colony near on road near mine and a number of trucks seen on this road carrying material. No plantation seen. 23. (15) Name of Mine/Area: Mr. Ashok Gupta Location: Village Balola, Distt. Gurgaon. Total Area of Land on lease/Actual area under mining activity: 19.15 hec. Mineral Extracted : Silica Sand and china clay. Status: Above groundwater table Whether ground water is extracted : No. Status of environmental clearances: Clearance given. No environmental management plan. Stone quarry Recent lease and clearance of January 2002. No plantation seen. The mine is on the main Delhi bypass - Gurgaon-Faridabad road, which is being developed as a four-lane b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the water and not allowing it to flow to the Yamuna, where it would be lost to the State, A perusal of the reports of the ground water regime shows that this contention cannot be upheld." 21. It is also stated in the report that "the geology and geomorphology of the area comprises oldest exposed litho logy with upland units. The rock type is mainly quartzite and these rise 150-200 metres above ground level in the quartzite's the ground water aquifers occur in the weathered zones and interspaces within interconnected joints and fractures. According to the CGWB, the unconfined aquifer is about 50 metres thick. But between the 50-110 metre below ground level (bgi) a thick clay layer ranging in thickness from 25-60 metres separates the top unconfined aquifer from the confined aquifer. 22. The mines inspected by EPCA were below 150 feet (45 metres) and on checking it was found that most mines were further operating at 20-100 feet (6-30 metres) below water levels. This means that the mines are abstracting water from the confined aquifer. As annual rainfall mostly replenishes the unconfined or top aquifer levels, the mining activity is destroying a non-renewable resourc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lopment of Gurgaon block is 124 per cent, indicating that the entire block in which Gurgaon town is situated is over exploited.' The ground water levels are also falling dangerously according to the report of CGWB which recommends strict regulatory measures for ground water use. 28. The EPCA, white reaffirming the recommendations that had been made in its earlier report dated 9th August, 2002, made the following recommendations: "The overall assessment of the environmental impact of the mining activities in the area especially its implication for ground water level in the region reaffirms EPCA's assessment presented in its earlier report. EPCA upholds its earlier recommendations made vide the report submitted to the Hon'ble Supreme Court on August 9, 2002. EPCA is concerned that if mining is allowed to continue in this area, it will have serious implications for the groundwater reserve which is the only source of drinking water in the area. EPCA has also noticed uncontrolled construction activities that will expand urban habitation considerably in future. Unless immediate measures are taken to conserve and augment water resources in the area acute survival cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining operations including renewals of mining leases and sets out the procedure for taking prior permission before undertaking such an activity. The notification, in so far as material for the present purposes, reads : "S.O.319(E) - Whereas a Notification under Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act, 1986 (29 of 1986) inviting objections against restricting certain activities in specified area of Aravalli Range which are pausing Environmental Degradation in the Region was published in the Gazette of India Part II-Section 3 Sub-section (ii) vide S.O. 25 (E) dated 9th January 1992; And whereas all objections received have been duly considered by the Central Government; 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 (29 of 1986), read with Rule 5 of the Environment (Protection) Rules, 1988 the Central Government hereby prohibits the carrying on the following process and operations, except with its prior permission, in the areas specified in the Table appended to this Notification : (i) ..... (ii) (a) All new mining operations i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State Department of Environment and Forests." 31. The aforesaid notification, restricting mining activities in Aravalli range is relevant for mining operation in Gurgaon district wherein part of Aravalli hills range exist. 32. The powers vested in the Central Government in terms of the aforesaid notification dated 7th May, 1992 wore delegated to the State Governments concerned; namely, Rajasthan and Haryana by issue of notification dated November 29, 1999 by the Central Government, Ministry of Environment and Forest. The said notification reads thus: MINISTRY OF ENVIRONMENT AND FORESTS NOTIFICATION New Delhi, the 29th November, 1999 S.O.1189(E).- In exercise of the powers conferred by Section 23 of the Environment (Protection) Act, 1986 (29 of 1986), (hereinafter referred to as the said Act), read with Sub-rule (4) of Rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby delegates the powers conferred on it to take measures for protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution, to be exercised also by the State Governments as notified in the Notification of the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government concerned shall take a final decision and convey the same to the applicant within three months from the date of receipt of application or when further information has been asked for from the applicant within three months from the date of receipt of such information. 4. The Ministry of Environment and Forests retains appellate power against rejection of any proposal and the National Environmental Appellate Authority constituted under the National Environment Appellate Authority Act, 1997 (22 of 1997) shall continue as an Appellate Authority against approval." 33. Schedule I and II of the notification sets out the composition of the Expert Committee and of the Monitoring Committee. Some controversy and confusion in respect of constitution of committees insofar as it relates to appointment of an expert from non-government organization, was brought to our notice but the delegation in favour of State Governments having been withdrawn now, it is not necessary to examine this aspect. The Central Government, in terms of notification dated 28th February, 2003, has withdrawn the delegation in favour of State Governments. Notification of 27th January, 1994 Regarding Enviro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e undertaken in any part of India unless it has been accorded environmental clearance by the Central Government in accordance with the procedure hereinafter specified in this notification. 2. Requirements and procedure for seeking environmental clearance of projects: 1.(a) Any person who desires to undertake any new project or the expansion or modernization of any existing industry or project listed in Schedule I shall submit an application to the Secretary, Ministry of Environment and Forests, New Delhi. The application shall be made in the proforma specified in Schedule II of this notification and shall be accompanied by a project report which shall, inter alia, include an Environmental Impact Assessment Report/Environment Management Plan prepared in accordance with the guidelines issued by the Central Government in the Ministry of Environment and Forests from time to time. (b) Cases rejected due to submission of insufficient or inadequate data and plans may be reviewed as and when submitted with complete data and plans. Submission of incomplete data or plans for the second time would itself be a sufficient reason for the Impact Assessment Agency to reject the case summari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Impact Assessment Agency. The assessment shall be completed within a period of ninety days from receipt of the requisite documents and data from the project authorities and completion of public hearing where required, and decision conveyed within thirty days thereafter. The clearance granted shall be valid for a period of five years for commencement of the construction or operation. No construction work preliminary or otherwise, relating to the setting up of the project may be undertaken till the environmental and/or site clearance is obtained. IV. In order to enable the Impact Assessment Agency to monitor effectively the implementation of the recommendations and conditions subject to which the environmental clearance has been given the project authorities concerned shall submit a half-yearly report to the Impact Assessment Agency. Subject to the public interest, the Impact Assessment Agency, shall make compliance reports publicly available. V. If no comments from the Impact Assessment Agency are received within the time limit, the project would be deemed to have been approved as proposed by project authorities. 3. Nothing contained in this Notification shall appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994 1 to 3. 4. Public Hearing Public hearings could be called for in case of projects involving large displacement or having severe environmental ramifications. 5 to 7. ... 8. Exemption for projects already initiated For projects listed in Schedule-I to the notification in respect of which the required land has been acquired and all relevant clearances of the State Government including NOC from the respective State Pollution Control Boards have been obtained before 27th January, 1994, a project proponent will not be required to seek environmental clearance from the IAA. However, those units who have not as yet commenced production will inform the IAA." 36. Reference may also be made to a notification issued by the Haryana Government on November 28, 2001 with a view to enforce the recommendations of NEERI contained in para 6.1 of its report so far as mining operations in the State of Haryana are concerned. In terms of the notification, the Designated Authority and the Monitoring Committee were directed to impose the conditions, mentioned in the notification while according environmental clearance. This notification, it seems, was issued in the purported attempt to comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the pendency of these matters under the order of this Court. The EIA applications of the lease holders are lying with CEC. CEC was constituted in terms of notification dated 17th September, 2002, issued by the Government of India, Ministry of Environment and Forest in exercise of power conferred by Section 3(3) of the EP Act for the purposes of monitoring and ensuring compliance of the order of this Court covering the subject matter of forest and wildlife and related issues arising out of the said order and one of the functions of the Committee in terms of the notification is to monitor the implementation of the orders of this Court and place reports of non-compliance before the Court including in respect of encroachment and removals, working plans, compensatory afforestation, plantations and other conservation issues. 40. In the order dated 31st October, 2002, this Court has observed that no mining activity can be carried out without remedial measures taking place and for this purpose, it is necessary that environment impact assessment is done and the applications dealt with before any mining activity can be permitted. It was also observed that the application of lease hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties are permitted in a manner which is destroying the ground water table and also the deep aquifers thereby causing irreparable damage to the critical ground water reserves. There is no effective mechanism to ensure compliance of various conditions stipulated while granting statutory approvals. No deterrent action was taken against mines even in those cases where during monitoring serious violations and non compliance of conditions were found. The CEC has made the following suggestions : "i) For major mineral mines above 5 hectare in Faridabad district, mining activity may be allowed to be undertaken only after the required environmental clearances are accorded by the Ministry of Environment and Forest (MOEF); ii) the powers delegated to the State Government by notification dated 27.1.1997 to grant environmental clearances in respect of areas of Gurgaon district falling within Aravalli notification dated 7.5.1992 requires to be reconsidered as the presumptions on the basis of which powers were delegated to the State Government have been found to be incorrect; iii) mining activity may be allowed in respect of areas notified under Section 4 and 5 of the PLP Act, which for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch stipulations would remain only on paper; xi) in respect of forest area, including areas notified under Section 4 and 5, net present value of the land leased out for mining may be recovered as per the Hon'ble Supreme Court order dated 30.10.2002 in I.A. No. 566 in Writ Petition (Civil) No. 202/95 (forest matter); xii) a suitable system of securing adequate bank guarantee, bank deposit or other personal guarantee from the mine owner may be worked out to ensure compliance of all statutory and other conditions; xiii) after considering the annual approved rate of mining and mineral deposits in the area, optimum size of the mines may be determined in respect of approved mines to ensure optimum utilization of the mineral resources; xiv) presently, the over burden is not stacked as per approved Mining Plan, which makes it practically impossible to carry out any reclamation work. The over burden dumping may be allowed only at identified sites within the mining lease area as per approved Mainlining Plans; p>xv) for the purpose of afforestation, the funds may be recovered from the mine owners and deposited with the forest department for undertaking afforestation in a planned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us conditions as found by the above Inspection Team(s) or by the CEC may be imposed. Norms for quantifying the penalties for violation of various conditions may be formulated by the State Government with the concurrence of the CEC. No mine may be allowed to resume mining activity without first paying the penalty imposed on it. (iv) mining activity may completely be prohibited in area where plantations have been undertaken with the foreign assistance/funding (externally aided projects). Mining leases already granted/approved in all such areas may be cancelled; (v) year wise requirement of funds for implementation of various conditions under which mining has been approved may be computed for each mine. To ensure compliance of these conditions, adequate safeguards by way of bank guarantee, mortgage of immovable assets, pledge of movable assets, personnel guarantee of the lessee or others (supported by adequate assets) may be put in place; (vi) MOEF may examine the Environment Impact Assessment Report/Environment Management Plan of individual major mineral mines and proposals for approval under the FC Act, if the mining lease is in 'forest' as per the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , provides that it shall be the duty of every citizen of India to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creatures. Article 47 which provides that it shall be the duty of the State to raise the level of nutrition and the standard of living and to improve public health is also relevant in this connection. The most vital necessities, namely, air, water and soil, having regard to right of life under Article 21 cannot be permitted to be misused and polluted so as to reduce the quality of life of others. Having regard to the right of the community at large it is permissible to encourage the participation of Amicus Curiae, the appointment of experts and the appointments of monitory committees. The approach of the Court has to be liberal towards ensuring social justice and protection of human rights. In M.C. Mehta v. Union of India [1988]1SCR279 , this Court held that life, public health and ecology has priority over unemployment and loss of revenue. The definition of 'sustainable development' which Brandt land gave more than 3 decades back still holds good. The phrase covers the development that m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplying stringent safeguards, it is possible to carry on development activity applying the principles of sustainable development, in that eventuality, the development has to go on because one cannot lose sight of the need for development of industries, irrigation resources and power projects etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck. We may note that to stall fast the depletion of forest, series of orders have been passed by this Court in T.N. Godavarman's case regulating the felling of trees in all the forests in the country. Principle 15 of Rio Conference of 1992 relating to the applicability of precautionary principle which stipulates that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing effective measures to prevent environmental degradation is also required to be kept in view. In such matters, many a times, the option to be adopted is not very easy or in a straight jacket. If an activity is allowed to go ahead, there may be irreparable damage to the environment and if it is stopped, there may be irreparable dama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 of the MMRD Act, Chapter IV of these Rules relate to crane of mining leases in respect of land in which the minerals vest in the Government. Rule 22(4), inter alia, provides that on receipt of the communication from the State Government of the precise areas to be granted for mining purpose, the applicant shall submit a mining plan, within the period stipulated in the Rules, to the Central Government for its approval. The applicant, on approval of the mining plan by the Central Government, shall submit the same to the State Government to grant mining lease over that area. Rule 4A, inter alia, provides that notwithstanding anything contained in Sub-rule (4), the State Government shall be competent to approve mining plan of open cost mines (mines other than underground mines) in respect of now metallic or industrial minerals, named therein, one of it being Silica sand. The mining plan, as provided in Sub-rule (5) of Rule 22, shall, inter alia, incorporate the mineral reserves of the area and the plan of area showing, inter alia, water courses, limit of reserves and other forest areas and density of trees, if any, assessment of impact of mining activity on forest, land surface and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvironment and control of pollution while conducting mining operations in the area; shall, wherever top soil exists and is to be excavated for mining operations, remove it separately and utilize for restoration or rehabilitation of the land which is no longer required for mining operations. The holder is also required to take steps so that the overburden, waste rock, rejects and fines generated during prospecting and mining operations or tailings, slims, and fines produced during sizing salting and beneficiation or metallurgical operations shall be stored in separate dumps which shall be properly secured to prevent escape of material therefrom in harmful quantities which may cause degradation of environment. Wherever possible, the waste rock, overburden etc. shall be back-filled into the mines excavation with a view to restoring the land for its original use as far as possible and wherever it is not feasible during mining operation, the waste dumps shall be suitably terraced and stabilized through vegetation or otherwise. It is also required that the phased restoration, reclamation and rehabilitation of lands affected by mining operation shall be undertaken which work shall be comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under forest or tree cover. In the hills and in mountains regions, the aim should be to maintain 2/3rd of the area under such cover in order to prevent erosion and land degradation and to ensure the stability of the fragile eco-system. It also provides that a massive need based end time bound programme of afforestation and tree planting, with particular emphasis on fuel wood and fodder development, on all degraded and denuded lands in the country, whether forest or non-forest land, is a national imperative. Mining in Forest Area 56. The question of permitting mining in the area where large scale of afforestation with foreign funding has taken place is required to be examined keeping in view the National Forest Policy which also provides, that forest land or land, with tree cover should not be treated merely as a resource readily available to be utilized for various projects and programmes but as a national asset which requires to be properly safeguarded for providing sustained benefits to the entire community. Diversion of forest land for any non-forest purpose should be subject to the most careful examinations by specialists from the standpoint of social and environmental costs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake a stand that the areas covered under the Aravalli project is not forest. The National Forestry Action Programme of December 2000 issued by the Ministry of Environment and Forest, Government giving project profile also makes detailed reference to the institution building and integrated national resource development in the Aravalli region, Haryana under the project implementing agency of Forest Department, Government of Haryana. The project profile, inter alia, states that the Central to such a policy is rehabilitation of common lands to meet the needs of the rural poor and to reduce soil and water erosion and the proposed programme was envisaged to bring the benefit of integrated development of the Aravalli eco-system to the whole community, particularly, to the poorer sections. The project, it is stated; has been implemented in Aravalli hills situated in the five districts of Haryana including Gurgaon. One of the expected outcome of the project is the reduced soil erosion and improved water regime in the rehabilitated area will be drastically reduce and run-off leading to recharge of constantly depleting ground water resources. It records that Haryana Forest Department has impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pare environmental management plan to abate various environmental problems. 3. To prepare action plan the restoration of environmental quality. 61. The environmental problems in the Aravalli Range in Gurgaon district have been identified and remedial measures including the pollution control guidelines and action plan for various stakeholders have been suggested by CMPDI. It has been noticed that in large scale mining projects what is still required is a proposal on district level as to what will be mined, how it will be mined and with what method and many such areas of environmental concern which had not been adequately addressed keeping in view the environmental degradation of the Aravalli Hills. It has also been noticed that the Aravalli notification restricts process and operations under certain categories of the land in district. Though the records of such lands are available at every village level map, there is no record available in the district level in respect of these areas to undertake realistic appraisal and effective monitoring of mining and other projects at the macro level on such lands. While noticing that, notification dated 29th November, 1999, inter alia, made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , etc.etc. The planning should, inter alia, include environmental impact and concerns of activities of one sector on the other sectors in the district, e.g., afforestation should be planned not only with a view to increase vegetation on the hills but also to be supplement for fuel, fodder etc. in the district. All efforts should be made to preserve the ground water resources. Water shed management and rainwater harvesting to be implemented in the Aravalli hills regions on war footing. In the areas where mining deeper than the ground water label of the area is to be carried out, adequate provision of pollution control and consideration of water resources should be made. There should be frequent inspections of the mining operations to ensure that these are in line with the requirement for sustainable development. The inspections may be carried out at an interval of three months. There should be continual source of revenue from the mining operators to the fund, recommended to be created, for the eco-restoration of the Aravalli hills. The minimum period of lease should be 15-20 years. This will induce the mine operators to take environmental protection measures more seriously. The Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronmental impact is also poor. In the past, the mine operators took no note of environmental damage. In fact, they were not even conscious about it. The attitude of mining community is to ignore the environmental concerns. In majority of the cases, the environmental concerns are ignored for making quick profits the small mines (less than 5 hectares) and the mining of minor minerals which are no doubt small individually but have damaging characteristics when in clusters, e.g. the mines of granite, marble, slates, quartzite etc. (falling under minor minerals) are no less damaging than the others, especially when the processing is taken into consideration. The mining activities results in disturbance of land surface, altering drainage pattern and land use, besides the pollution problems, which may lead to the environmental problems of air, water and noise pollution and solid waste pollution. 64. It has been suggested that the short term and long term action plan for the restoration of environmental quality of the area shall be prepared separately. The action plan shall be prepared in such a way that it should be a guiding tool also in the hands of the state pollution control boards a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offering broad framework to the industrial units to function under environmentally sustainable framework. The suggestions also include the enactment of rules for grant of mine leases to levy a separate charge for dump removal, ecological restoration in the area, the technology to be used for mining operations and post mining land use and mine decommissioning. As far as environmental protection in the Aravalli hills is concerned, planning and provisions must start from the stage of grant of mine lease and what all it should include have been set out. It has been, inter alia, suggested that the environmental framework shall include the framework for environmental clearance such as depth of cutting, area of plantation and the type of plantation, which are attributes related to closure planning as also framework for monitoring and for forestry besides air quality, land use pattern etc. in nutshell, it has been suggested that it is imperative on the part of the mine operators to carry out the mine operations in such a fashion that it has least impact on the ecology of the area. The pollution prevention guidelines have been suggested in para 7.1.1.2. 69. Having regard to the detailed s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicability of order dated 6th May, 2002 to mining in Aravalli Range, it is clarified that the said order would be applicable in all the (SIC) hill range in Gurgaon district. Applicability of notification dated 27th January, 1994 72. The notification has been reproduced in the earlier part of the judgment. It, inter alia, applies to mining projects (major minerals) with leases of more than 5 hectares. It can neither be disputed nor has been disputed that the notification is mandatory. It, inter alia, provides that on and from the date of its publication in official Gazette expansion or modernization of any activity (if pollution load is to exceed the existing one) or a new project listed in Schedule A of this 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 therein. The contention urged on behalf of the lease holders is that the leases in question do not relate to expansion or modernization of any activity as postulated by the notification. Further, it is contended, that the notification applies to a 'new project' which means that it will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vity at village Anangpur, district Faridabad shall also seeking environmental clearance of its mining project in compliance with this notification without even mentioning any time limit for it and admittedly till date that had not been done. None bothered to find out whether conditions in the order has been compiled or not. Further the letter dated 25th January, 2003, sent to Principal Secretary of Central Empowered Committee by Director Mines and Ecology, Haryana shows how the State Government has been circumventing the legal requirements and permitting mining. In that letter, it has been stated that pending approval of the environmental plan, the mining lessees undertook the mining operation of the minor mineral on issue of short term permit, in cases where the fresh mining leases were granted and in case of renewal of mining leases, the mining activities were going on. This is despite conditions in the judgment dated 10th May, 1996 by this Court that the Director Mining and Ecology Haryana would be responsible for mining in the State of Haryana. 75. Be that as it may and reverting to legal position in Ambica Quarry Works v. State of Gujarat and Ors. [1987]1SCR562 , though a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k precedence, in our opinion, in these cases. The obligation to the society must predominate over the obligation to the individuals." 76. In Rural Litigation and Entitlement Kendra v. state of U.P. 1988(2)SCALE493 , agreeing with views expressed in Ambica Quarry Workers, it was held that the FC Act applies to renewals as well and even if there was a provision for renewal in the lease agreement on exercise of lessee's option, the requirement of the Act had to be satisfied before such renewal could be granted, in State of M.P. and Ors. v. Krishnadas Tikaram 1994(4)SCALE523 , these two decisions were relied upon and it was held that even the renewal of lease cannot be granted without the prior concurrence of the Central Government. It is settled law that the grant of renewal is a fresh grant and must be consistent with law. 77. We are unable to accept the contention that the notification dated 27th January, 1994 would not apply to leases which come up for consideration for renewal after issue of the notification. The notification mandates that the mining operation shall not be undertaken in any part of India unless environmental clearance by the Central Government has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me at places where such stone or lime had ordinarily been so quarried or burnt prior to the publication of the notification under Section 3. In respect of some mining areas notifications have been issued under Section 4 and in respect of some notifications have been issued both under Sections 4 and 5. The submission is that invoking of Sections 3, 4 and 5 is only to conserve sub-soil water and prevention of the area from erosion of land and is not to create any forest. It has been pointed out that in cases where the notifications have been issued, only felling of trees had been prohibited and not quarrying of stone. 81. It cannot be disputed that the State Forest Department has been treating and showing the aforesaid areas as 'forest'. The contention urged on behalf of the State Government is that it was on account of erroneous view point of Forest Department. In fact and law, such area is not 'forest' and mining is not prohibited and, therefore the question of seeking permission under Section 2 of the FC Act does not arise. 82. In the instant case, it is not necessary to decide the legal effect of issue of the notification under Section 4 and/or 5 of the Act. Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co-operate and not undertake any mining in such an area. Non-payment of royalty to the villagers 85. A controversy has been raised about non-payment of royalty by the leaseholders to villagers on whose behalf it was contended that the order dated 6th May, 2002 prohibiting mining should not be varied till the leaseholders discharge their liability to pay royalty to the villagers. On the other hand, mine leaseholders dispute the claim put-forth on behalf of the villagers and it has been submitted that no amount is payable by them and the villagers can make their claim, if any, from the State Government. The dispute of this nature cannot be properly adjudicated in these proceedings. We leave it open to be adjudicated before appropriate forum in accordance with law. Leases in respect of minor mineral 86. Though notification dated 27th January, 1994 is not applicable to minor minerals, but having regard to what we have discussed above in regard to degradation of environment and the required standard about the risk of harm to the environment or to human health to be decided in public interest according to 'reasonable person's test', and the report of CMPDI, we direct the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the implementing organizations and also to monitor implementation of recommendations contained in reports referred herein, it is necessary to constitute a Monitoring Committee. The heads of the following departments would be members of the Monitoring Committee : 1. Regional Officer of State Pollution Control Board. 2. Forest Department 3. District Administration 4. Department of Mining & Geology 5. Irrigation Department 6. Regional Officer of CGWB 7. Agriculture Department 8. District industry Department. 9. Chairman - CPCB. 93. Besides above, MOEF is directed to appoint an officer from Central Ground Water Board to be a member of the Monitoring Committee. The following persons as representatives of public shall also be members of the said Committee: 1. Prof. Dilip Biswas, Ex Chairman, CPCB. 2. Mr. Valmiki Thapar, 3. Mr. Bhure Lal. 94. The MOEF would act as a nodal agency of the Monitoring Committee. The Secretary of MOEF is directed to appoint an officer not below the rank of a Joint Secretary in the Ministry for the said purpose. 95. The Monitoring Committee is directed to inspect the mines in question and file a report within a period of three mon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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