Vijay Bansal And Others v. State Of Haryana And Others

This order shall dispose of (i) CWP No.20134 of 2004 preferred by three Members of the District Bar Association, Panchkula, purportedly in 'public interest' with a prayer to give direction for investigation into the 'indiscriminate' and 'callous' mining operations in the lower Shivalik hills in District Panchkula, as well as (ii) CWP No.4758 of CWP No.20134 of 2004 -: 2 :- 2008 M/s Chandi Mandir Stone Crushers Consumers Company v. State of Haryana & Ors. challenging, clause 14 of the auction notice (Annexure P-5) and/or alternatively to direct the State of Haryana to obtain 'Prior Environmental Clearance' from the Govt. of India in terms of the notification dated 14.9.2006 (Annexure P-2) and to conduct auction of mining rights of the quarries thereafter only. The 'auction notice' (Annexure P-5) to the extent it entails pre-payment of 25% of the total bid amount at the fall of the hammer irrespective of refusal or grant of the 'Environmental Clearance', has also been impugned.

[2]. To appreciate the nature of controversy, the brief facts of both the cases are being referred to separately. In the PIL (CWP No.20134 of 2004), the petitioners, inter-alia, have averred that the lower Shivalik ranges falling within the Districts of Panchkula, Ambala and Yamuna Nagar are drained by a number of non-perennial streams. Keeping the physical features of such like region in view that the Punjab Land Preservation Act, 1900 (in short the PLPA) was enacted to empower the State Govt. to notify the areas for 'conservation of sub-soil water and the prevention of erosion'. While Section 3 of the PLPA enables the State Govt. to notify the area(s) for issuance of directions to provide for the 'conservation of sub-soil water' and 'prevention of erosion', Section 4 empowers it to "regulate, restrict or prohibit by general or special order", the quarrying of the stone, or the burning of the lime; the cutting of trees or timber or collection, removal or subjection to any manufacturing process of any forest products; setting the trees, timber or forest produce on fire, etc. [3]. The Forest Department, Govt. of Haryana in exercise of its powers under Section 3 of the PLPA issued a notification dated 27.11.1997 CWP No.20134 of 2004 -: 3 :- (Annexure P-2) specifying the areas comprising Kalka, Panchkula Tehsils (District Panchkula), Naraingarh, Brara Tehsils of District Ambala and Jagadhari, Chachhrauli Tehsils of District Yamuna Nagar for the 'conservation of ground water and to prevent land erosion in these areas'. The Forest Department thereafter issued another notification dated 28.11.1997 (Annexure P-3) under Section 4 of the PLPA whereby "the cutting of trees or timber except eucalyptus or poplar or the collection or removal or subjection to any manufacturing process, of any forest produce other than flower, fruit and honey save for bona fide domestic or agricultural purposes or for purpose of the right holders in the land..." was prohibited in areas which stood notified under Section 3 of the PLPA vide notification dated 27.11.1997 (Annexure P-2).

[4]. The petitioners have referred to a report dated 31.8.2000 submitted by the Committee comprising the Sub Divisional Officer (Civil), Kalka, the Divisional Forest Officer, Morni, the Divisional Forest Officer, Kandi Project and the Mining Officer, Panchkula. The Committee which was constituted to conduct survey and submit report on the feasible areas for mining purposes, identified that three types of minor minerals, namely, boulders, bazri and sand were available in District Panchkula in different river beds and areas abutting thereto. The Committee went to each site of quarrying to find out the impact of restrictions imposed by the State Govt. in the mining permits or those notified by the Forest Department and noticed that with the passage of time, the quarrying of these minor minerals has begun posing a grave threat to the ecological balance of the area. It thereafter recommended that - (a) instead of giving mining contracts on revenue estate basis, the mining area should be demarcated by specifying CWP No.20134 of 2004 -: 4 :- the khasra numbers to minimize the illegal mining; (b) the quarries should be clubbed together by formation of feasible zones; (c) mining near the forest area and the foot-hills should be restricted to a reasonable distance to ensure safety of these areas; (d) the manpower in the Mining Office at Panchkula should be suitably increased; (e) the mining, however, should not be altogether banned as the raw materials for construction, namely, boulders, bazri and sand get replenished every time it rains and if there is no licenced mining, it would lead to illegal mining of these materials; and

(f) two police personnel should be deployed with the mining staff for effective enforcement and to check unauthorized extraction of minerals in the District.

[5]. The petitioners have also placed on record a copy of the DO letter dated 9.6.2005 (Annexure P-15) sent by the Deputy Conservator of Forests, Morni-Pinjore Forest Division, apprising the Deputy Commissioner, Panchkula that the auctioning of mining quarries in the area notified under Section 4 of the PLPA was illegal and requested him to cancel the mining contracts and provide police assistance to the staff of the Forest Department to stop illegal activities because, "at times the offenders belong to affluent strata of the society".

[6]. The petitioners maintain that notwithstanding the unequivocal prohibition against mining in the subject area imposed by the Forest Department or the recommendations made by the Committee, the entire area has become a den of the 'mining mafia' who operate under the alleged political patronage and minerals worth crores of rupees are being illegally extracted in connivance with and/or tacit support of the enforcement staff, including the District Administration.

CWP No.20134 of 2004 -: 5 :-

[7]. Separate counter affidavits have been filed by the Department of Mines and Zoology, Principal Chief Conservator of Forests and the Environment Department, State of Haryana. Relying upon section 3 (e) read with Section 14 and 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (in short the 1957 Act), the Mines and Zoology Department has averred that all the 'minor minerals' vest with the State Govt. who is empowered to make rules for regulating the quarries or other concessions in respect of 'minor minerals' and for the purposes connected therewith. Reference has been made to the Punjab Minor Minerals Concession Rules, 1964 (in short the 1964 Rules), as amended from time to time, which enable the State Govt. to grant contract for mining of 'minor minerals' for a period upto a maximum of 5 years. The Mining Department has asserted that 'mining contracts' in respect of the river beds are granted through 'public auction' and special conditions like prohibiting quarrying near the villages, culverts and banks are imposed and only those minor minerals which have got deposited in the river beds by the action of water are allowed to be extracted and that the said process in no way causes any ecological imbalance. The State Govt. is said to have prohibited the quarrying of minerals on the down-stream of the Ghaggar river in Panchkula upto the Punjab border and also upto village Choki for the protection of the 'bridge'. Similarly, quarrying is prohibited upto one kilometer upstream as well as downstream of the bridges on rivers Rajpur, Jhajri and Kaushalya near Pinjore. Quarrying is also banned in the revenue estate of various villages which are notified as 'forest lands'. The Department of Mines has further claimed that a total of 55 quarries in District Panchkula generate an annual revenue to the tune of Rs.9.5 crores CWP No.20134 of 2004 -: 6 :- to the exchequer. Allegations of illegal mining have been stoutly controverted.

[8]. The Principal Chief Conservator of Forests, Haryana in his counter affidavit dated 10.3.2005 maintains that given the constraints of increasing population, changing attitude of people towards forests and the extent and volume of work, the provisions of the PLPA, the Forest (Conservation) Act, 1980 and the Indian Forests Act, 1927 are meticulously enforced. The Forest Department has not disputed the fact that the lower Shivalik hills falling in Panchkula District are mainly drained by barsati nullas and include a considerable area of hill tract.

[9]. The Environment Department has filed a short counter affidavit pointing out that the State Govt. vide its notification dated 20.11.2001 has constituted a 'Designated Authority' for appraising and recommending the mining projects of 'major minerals' having an area of 5 hectares or less and 'minor minerals' irrespective of any area and that the mining contractors are required to get the 'Environmental Clearance' from the 'Designated Authority' prior to the commencement of the mining activity.

[10]. Rejoinder and various additional affidavits have also been filed by the parties.

[11]. During the course of hearing on 2.9.2008, while the petitioners held a grouse against the unabated illegal mining in the area, the State Counsel strongly refuted such allegations. We accordingly directed the Chief Judicial Magistrate, Panchkula to visit and inspect the area from Nadda Sahib upstream Ghaggar with the assistance of the Divisional Forest Officer, the Mining Officer and the Tehsildar, etc. The learned Chief CWP No.20134 of 2004 -: 7 :- Judicial Magistrate-cum-Local Commissioner vide her report dated 16.9.2008 found that even in the areas where ban had been imposed, "the mining activities had been carried out on the site as well as of the river bank" and despite her asking, "the Mining Officer was not able to show any agreement or any receipts for carrying on any mining operations there and the contractor failed to turn up there.". She also noticed that some of the persons found extracting minerals could not show any receipts or the Sales-tax number, permission or licence for their activities in the areas "adjoining the restricted area". The local commissioner was of the view that "the mining operations are going on and have been carried out in the recent past in the area from Chandi Mandir to Kedarpur". [12]. Taking cognizance of the said report, we further directd the learned Chief Judicial Magistrate to submit a fact-finding report on the following aspects:-

"1. What are the total number of mining licenses given on long

term basis in the District of Panchkula;

2. Is any one of the said licence still valid and if so what is the

date of their expiry;

3. What were the total extent of mining areas covered under

each one of such licences and whether any environmental

clearance was taken from the concerned Ministry, as

required under the notification referred to by Mr. Malik;

4. what is the procedure being followed by the Mining Officer

for issue of short term permits and whether the record

reveals any adoption of transparent method for allotment of

such permits;

CWP No.20134 of 2004 -: 8 :-

5. How many such permits issued by the Mining Officer from

the date of long term licenses have expired;

6. How many such permits are granted for an area stretching

to more than five acres so as to attract the requirement of

environmental clearance from the Ministry concerned; and

7. Is any part of the area authorized for mining under the short

term permits covered by the notification issued under

Sections 4 and 5 of the Punjab Land Preservation Act,

1900."

[13]. In compliance with the above, the learned Chief Judicial Magistrate, Panchkula submitted her 2nd report based on a study of the relevant record produced before her and the surprise visit of the area concerned. This report throws light on two distinct aspects. Firstly, the local commissioner found the procedure for allotment of 'short-term mining contracts' to be doubtful and unsatisfactory for want of any transparent method of inviting bids for such allotments as the so-called one or two offers received for different zones were from the same person though these were purported to have come from different persons/companies. Secondly, the 'illegal mining activities' were going on in the entire upstream area starting from the Nadda Sahib as noticed by the local commissioner during a surprise visit to the mining areas at Fatehpur Kedarwala, Kotian, Diwanwala and Raipur. [14]. A brief reference to the facts of the connected case, i.e., CWP No.4758 of 2008 may also be made at this stage. The petitioner - company owns multiple stone crushers and deals in the 'sale of sand, gravels and boulders'. It has challenged the auction notice dated 10.3.2008 (Annexure P-5) to the extent it provides that

"mining will be allowed to be commenced CWP No.20134 of 2004 -: 9 :- only after prior environmental clearance from competent authority, as required under notification dated 14.9.2006 issued by the Ministry of Environment and Forests, Govt. of India"

. The main grievance of the petitioner, however, revolves around the Notification dated 14.9.2006 (Annexure P-2) issued by the Central Govt. in exercise of its powers under section 3(2) of the Environment (Protection) Act, 1986 read with rule 5(3)

(d) of the Environment (Protection) Rules, 1986. According to the petitioner, the afore-stated notification has no applicability in the case of "minor minerals" which are different from the "minerals" as is implicit from the distinct definitions of these two expressions in the 1957 Act. The petitioner asserts that the Notification dated 14.9.2006 would require compliance only for the start of a new project or activity or if there is expansion/modernization of the existing projects or activities. The petitioner's 2nd grievance is that the 'prior environment clearance' should be obtained by the Department of Mining (and not by the contractor/lessee) before the State Govt. puts the quarries to public auction. The penal consequences like forfeiture of 25% of the bid money to be deposited by the highest bidder at the fall of hammer etc. are also being assailed. [15]. The State of Haryana has filed its counter-affidavit explaining that the Central Govt. notification dated 14.9.2006 applies to the mining of 'major' as well as 'minor' minerals and that the 'prior environmental clearance' is required by the lessee/contractor and not by the authorities "from whom the project proponent obtains licence/lease/contract...". According to the respondents, the assessment of the impact to be caused due to the activity to be undertaken by the project proponent can be made only after he discloses the method of working, plant and machinery to be CWP No.20134 of 2004 -: 10 :- deployed and the quantity of the material to be produced. The respondents have also defended their order-cum-notice dated 10.3.2008, dividing the minor mineral quarries in District Panchkula into 10 zones for the purpose of granting mining contracts for a period of 5 years and an additional period of one year for obtaining the 'environmental clearance'. Similarly, grant of 'short-term permits' during the period of one year slated for seeking the 'environmental clearance', is sought to be justified on the plea that the closing of mining quarries would cause shortage of the building material, thereby adversely affecting the development works and also resulting into unemployment of the labourers working in the quarries and other connected activities besides the loss to the State revenue. The respondents have also taken a categoric stand that the notification dated 14.9.2006 applies to those areas also where the mining activities were going on before it was issued as every new contract will amount to be a new activity. [16]. Before we formulate the issues involved, the legal support behind the Notification dated 14.9.2006 may also be briefly summed up. [17]. The Parliament enacted the Environment (Protection) Act, 1986 (in short the 1986 Act) to "protect and improve the environment and for the prevention of human beings, other living creatures, plants and property". Section 2(a) expansively defines the expression "environment" which 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. Section 2(c) defines "environmental pollution" to mean the presence in the environment of any environmental pollutant, i.e., any solid, liquid or gaseous substance which is injurious to environment. Section 3 empowers the Central Govt. to take CWP No.20134 of 2004 -: 11 :- measures to protect and improve the quality of environment and to prevent, control and abate environmental pollution. These measures include the restriction of areas in which any industries, operations or processes etc. shall not be carried out or shall be carried out subject to certain safeguards. Section 3(3) provides for constitution of more than one authorities who shall exercise such powers as may be conferred by the Central Govt. Section 5 begins with a non-obstante clause and empowers the Central Govt. to issue directions in writing to any person, officer or an authority who shall be bound to comply with such directions. Section 24 establishes the legislative supremacy and over-riding effect of the Act over any other inconsistent piece of legislation and reads as follows:-

"24. Effect of other laws.- (1) Subject to the provisions of sub-

section (2), the provisions of this Act and the rules or orders

made therein shall have effect notwithstanding anything

inconsistent therewith contained in any enactment other than

this Act.

(2) Where any act or omission constitutes an offence

punishable under this Act and also under any other Act then

the offender found guilty of such offence shall be liable to be

punished under the other Act and not under this Act."

[18]. The Environment (Protection) Rules, 1986 have been enacted in exercise of powers given under Section 6 and 25 of the 1986 Act. Sub- rule (3) of rule 5 provides that whenever it appears to the Central Govt. to be expedient to impose prohibition or restrictions on the location of an industry or carrying on of processes and operations in an area, it may, by notification in the official gazette and in such other manner as it may deem CWP No.20134 of 2004 -: 12 :- fit, give notice of its intention to do so and after inviting objections thereto, publish the notification imposing the prohibition or restrictions etc. [19]. In exercise of its powers under Section 3 of the 1986 Act read with Rule 5 of the 1986 Rules that the Ministry of Environment and Forests, Govt. of India published a draft notification on 15.9.2005 proposing to impose certain restrictions and prohibitions on new projects or activities, or on the 'expansion' or 'modernization' of the existing projects or activities based on their potential environmental impacts, being undertaken in any part of India, unless 'prior environmental clearance' has been accorded in accordance with the National Environment Policy. After considering the objections and suggestions received in response to the draft notification that the notification dated 14.9.2006 (Annexure P-2) was issued mandating that henceforth

"the required construction and new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity option with change in process and/or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Govt. or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Govt. under sub-section (3) of Section 3 of the said Act...."

. [20]. Clause (2) read with Clause (4) of the notification provides that in respect of the matters falling under 'Category A' in the Schedule, 'prior environmental clearance' shall be obtained from the Central Govt. in the Ministry of Environment and Forests on the recommendations of the Expert Appraisal Committee and for the matters falling under 'Category B', such 'prior environmental clearance' shall be obtained from the 'State CWP No.20134 of 2004 -: 13 :- Environment Impact Assessment Authority' on the recommendations of State/Union Territory level Expert Appraisal Committee. [21]. Clause (3) of the notification provides composition of the'State Level Environmental Impact Assessment Authority' to be constituted by the Central Govt. whereas Clause (5) lays down that the 'Expert Appraisal Committees' at the Central level and the 'State Level Expert Appraisal Committee' at the State/Union Territory level, shall screen, scope and appraise the projects or activities falling in Category 'A' and Category 'B' respectively.

[22]. The "mining of minerals" in an area of 50 hectares or above, is one of the projects/activities included at Sr. No.1(a) in Category 'A' of the Schedule which means that save as otherwise provided or interpreted, 'prior environmental clearance' is required to be obtained from the Central Govt. in the Ministry of Environment and Forests on the recommendations of the Expert Appraisal Committee.

[23]. An application seeking 'prior environmental clearance' is to be made in the prescribed Form-1, after identification of the prospective sites for the projects/activities to which the application relates to before commencing any construction activities or preparation of land at the site. The applicant needs to furnish along with the application "a copy of the pre-feasibility project report" put in the case of construction projects or activities, a copy of the conceptual plan instead of the pre-feasibility report is required to be appended. The environmental clearance process comprises a maximum of four stages though all of them may not apply to a particular case. These four stages are - (i) screening (only for Category B cases); (ii) scoping; (iii) public consultation; and (iv) appraisal. CWP No.20134 of 2004 -: 14 :- [24]. On a cursory glance at Form-1 (Appendix 1) one finds that an applicant is obliged to furnish details in respect of - (i) physical changes in the typographic/land use/water bodies etc., if any, on account of construction, operation and de-commissioning of the project; (ii) use of natural resources such as land, water, materials or energy for the construction or operation of the project; (iii) use, storage, transport, handling or production of substances or material to be harmful to human health or the environment or raise concerns about actual or perceived risks to human health; (iv) production of solid-wastes during construction/operation/de-commissioning; (v) release of pollutants or any hazardous toxics or noxious substances into air; (vi) generation of noise and vibration and emission of light and heat; (vii) risks of contamination of land or water from the release of pollutants into the ground or into sewers, surface water, ground water, coastal water or the sea; (viii) risk of accidents during construction or operation of the project which could affect human health or the environment; (ix) factors which could lead to environmental effects or the potential for cumulative impacts with either existing or planned activities in the locality; and (x) environmental sensitivity, if any, like Areas protected under international conventions, national or local legislation for their ecological, land-scape, cultural or other related value. [25]. Appendix-B of the notification enlists the minute details to be provided under different sub-heads of the ten columns of the Application Form, broadly referred to above. Appendix-III thereto prescribes the format of generic structure of environmental impact assessment documents. Appendix-IV lays down the procedure for conduct of public hearing whereas Appendix-V prescribes the procedure for appraisal. Appendix-VI CWP No.20134 of 2004 -: 15 :- descripts the composition of the Expert Appraisal Committee (RAC) and the State/UT level Expert Appraisal Committees (SEACs). [26]. The notification dated 14.9.2006, thus, evinces an integrated and self-sustaining mechanism evolved for the grant of 'prior environmental clearance', which, henceforth is a pre-condition for launching any new project/activity or expansion and modernization of the existing projects/activities listed in the Schedule to the notification or any change in product - mix in any manufacturing unit included in the said Schedule. [27]. Having stated the factual backdrop and the legal framework, we may now take notice of the rival contentions. The petitioners in the PIL expressed their concern for the protection of the fragile lower Himalayan ranges, known as the Shivalik hills, which are spread over in the Districts of Panchkula, Ambala and Yamuna Nagar and are being subjected to alleged illegal and excessive mining overlooking its devastating effect on the environment and seek a ban on these mining activities on the plea that the entire mining area has already been notified as "forest land" under the PLPA 1900 and no prior permission or 'environmental clearance' from the Ministry of Environment and Forests has been obtained. [28]. The petitioner in the second case per contra urged that since the mining operations in District Panchkula are going on for the last several years, the notification dated 14.9.2006 is not attracted at all. According to Shri Rajiv Atma Ram, learned Senior Counsel, neither the mining areas have been 'expanded' nor the ongoing activities are being 'modernized', therefore, the subject notification is not attracted. It was argued that since the mining quarries to be auctioned by the State of Haryana consist of "minor minerals", the notification dated 14.9.2006 is inapplicable as the CWP No.20134 of 2004 -: 16 :- same is meant to regulate the mining of "minerals" only. Clause (a) of Section 3 of the 1957 Act which defines "minerals" to mean 'all minerals except mineral oils' and the expression "minor minerals" defined in clause

(e) of Section 3 of the 1957 Act, have been pressed into aid to contend that by necessary implication, 'minor minerals' are excluded from the ambit of the notification. Reference to Section 14 of the 1957 Act has also been made according to which Sections 4 & 13 of the Act do not apply to 'minor minerals' as in respect thereto, the State Govt. can make separate Rules under Section 15 of the Act. It was argued that the Central Govt. has consciously exempted the 'minor minerals' from the purview of the notification dated 14.9.2006 as the 'minor minerals' like gravels, sand and stones are collectible from the river beds only and require hardly any activity like the blasting, deep-boring or digging, cutting of trees or breaking of earth/rocks etc. The petitioner has also predicated that the collection of 'minor minerals' from the river beds, which are replenished in every rainy season has no adverse impact on the environment. It is explained that the State of Haryana does not grant lease-hold rights for a period of 30 years, rather only mining contracts for 5 years are granted, out of which if 270 days are consumed in the process of 'prior environmental clearance' only, the enforcement of the subject notification would cause severe prejudice to the mining contractors. On this premise and alternatively, it was contended that the State of Haryana being the exclusive owner of the 'minor minerals' ought to seek 'prior environmental clearance' before putting the mining areas to open auction. The insistence of the State Govt. to seek deposit of the non-refundable 25% of the bid amount at the fall of hammer even without allowing the mining activities to start or its CWP No.20134 of 2004 -: 17 :- refusal to refund the same if such activities cannot be started for want of 'environmental clearance' etc., has also been assailed on the touchstone of reasonableness.

[29]. Appearing for the intervenors, Mr. Bali argued that if the 'prior environmental clearance' is held to be mandatory for extraction of the 'minor minerals' also, the hardship likely to be faced by the general public due to non-availability of construction material and plight of the quarry workers or those employed at the stone crushers who would be rendered jobless, equally deserves attention of this Court. Learned counsel pointed out that since the Central Govt. has prescribed a schedule of a minimum of 270 days for 'prior environmental clearance', the ongoing mining activities during the interregnum may not be closed down.

[30]. Per contra, learned Additional Advocate General, Haryana, maintained that the mining area(s) of District Panchkula comprise more than 50 hectares of land and as such, the mining activity in this area falls in Category 'A' of the Schedule to the notification dated 14.9.2006 for which 'prior environmental clearance' before the start of such project/activity needs to be obtained. Refuting the petitioner's contention that the State should seek the 'prior environmental clearance', learned State Counsel relied upon the contents of Form-I appended with the notification and urged that only the project proponent can furnish the desired information, like "description of machinery to be used", "nature and extent of manual workmanship", use of "hazardous materials", use of equipments like "engines, ventilation plant, crushers" or the "expected cost" of the project/activity. He also supported Mr. Bali in contending that the mining activities should not be banned completely till the grant of 'prior CWP No.20134 of 2004 -: 18 :- environmental clearance', as, besides the reasons already highlighted, it would also bring the projects like construction of national highways to a halt and cause a huge loss to the State Exchequer. The practice of "short- term licences" being granted on month-to-month basis for extraction of the 'minor minerals' is also sought to be justified and is statedly permissible under the 1964 Rules. Reference has been made to the terms and conditions of 'auction notice' to suggest that the Department of Mining is fully conscious to the cause of environmental degradation and stringent conditions have been imposed and are being enforced to minimize the adverse impact of the mining activities on the environment. Regarding forfeiture of the 25% bid amount notwithstanding the fact that the highest bidder cannot start mining operations for want of 'prior environmental clearance', learned State Counsel suggested that the issue is highly premature as no such forfeiture has actually taken place so far. [31]. Having heard Learned Counsel for the parties at a considerable length and on perusal of the records including various additional documents referred to by the parties during the course of hearing, we find that the following issues do arise for our determination:-

(i) What is the legal impact of the notifications issued under

sections 3, 4 or 5 of the PLPA 1900?

(ii) Whether the ongoing mining operations need to be

regulated and monitored , and by whom, to protect the

fragile ecology of Shivalik range of hills?

(iii) Whether the mining activities in the area of Shivalik range

of Himalayas fall within the ambit of notification dated

14.9.2006 (Annexure P-2)?

CWP No.20134 of 2004 -: 19 :-

(iv) If so, whether these mining activities should be banned or

allowed to continue till the 'prior environmental clearance' is

granted by the Central Govt. in the Ministry of Environment

and Forests on the recommendations of the Environment

Appraisal Committee?

(v) Whether the 'prior environmental clearance' if so required,

is to be obtained by the State of Haryana or by the project

proponent/contractor/ lessee?

(vi) Whether the practice and procedure being followed while

granting short-term permits for mining is legally

sustainable?

Issue No.1 - The legal impact of notifications issued under Sections 3 and 4 of the PLPA 1900?-

[32]. The Statement of 'Objects and Reasons' of the PLPA deciphers that due to destruction of the under-growth and forests on the Shivalik mountain range, the surface soil has been largely washed away from the high-lands by rains, and the injurious action of mountain torrents and streams on the low-lands had greatly increased. The fertile plains below the water-shed of the Shivalik range were being damaged and deteriorated by erosion, deposits of sand and boulder and sand drift. It was with a view to prevent the injury to the rich region of the plains that the PLPA was enacted to enable the Government to extinguish the pasture and wood cutting rights and right to break-up new land for cultivation of 'forest areas' which otherwise were not the property of the government; and to prevent the future growth of such rights. Section 2(c) of the PLPA (as amended from time to time) provides same expression to "tree", "timber", "forest CWP No.20134 of 2004 -: 20 :- produce" and "cattle" as has been given to these expressions in Section 2 of the Indian Forest Act, 1927. Section 3 of the PLPA enables the State Government to notify the areas whenever it is so desirable "to provide for the conservation of sub-soil water or the prevention of erosion". The restrictions or directions which the State Government is competent to issue are itemized under Section 4 of the PLPA. Section 5 further empowers the State Government to issue 'special orders' in respect of any specific village/villages or part thereof, comprised within the area already notified under Section 3 of the PLPA. Section 19 contains the penal consequences for breach of any regulation or restriction/prohibition imposed under the Act. Section 20 is indeed significant as by virtue thereof, several provisions of the Indian Forest Act, 1927 have been borrowed to be read as a part of the PLPA.

[33]. It would be apropos to reproduce sections 3, 4 and 20 of the PLPA which read as follows:-

"3. Notification of areas.-- Whenever it appears to the

Provincial Government that it is desirable to provide

for the conservation of sub-soil water or the prevention

of erosion in any area subject to erosion or likely to

become liable to erosion, such Government may by

notification make a direction accordingly.

4. Power to regulate, restrict or prohibit, by general or

special order, within notified areas, certain matters.--

In respect of areas notified under section 3 generally or

the whole or any part of any such area, the Provincial

Government may, by general or special order temporarily

CWP No.20134 of 2004 -: 21 :-

regulate, restrict or prohibit--

(a) clearing or breaking up or cultivating of land not

ordinarily under cultivation prior to the

publication of the notification under section 3;

(b) quarrying of stone or the burning of lime at

places where such stone or lime had not

ordinarily been so quarried or burnt prior to the

publication of the notification under section 3;

(c) cutting of trees or timber, or the collection or

removal or subjection to any manufacturing

process, otherwise than as described in clause

(b) of this sub-section of any forest-produce other

than grass, save for bona fide domestic or

agricultural purposes of right-holder in such

area;

(d) setting on fire of trees, timber or forest produce;

(e) admission, herding, pasturing or retention of

sheep, goats or camels;

(f) examination of forest-produce passing out of any

such area; and

(g) granting of permits to the inhabitants of towns

and villages situate within the limits or in the

vicinity of any such area, to take any tree, timber

or forest produce for their own use therefrom, or

to pasture sheep, goats or camels or to cultivate

or erect buildings therein and the production and

CWP No.20134 of 2004 -: 22 :-

return of such permits by such persons.

20. Application of provisions of Act XVI of 1927.-- The

provisions of sections 52, 54, 55, 56, 57, 58, 59, 60, 61,

62, 64 (excluding the last sentence), 66, 67, 68 and 73 of

the Forest Act, 1927, shall, so far as applicable, be read

as part of this Act, and for the purposes of those

provisions, every offence punishable under section 19

shall be deemed to be a "forest offence" and every officer

employed in the management of any area notified under

section 3 or section 8, as care-taker or otherwise, shall be

deemed to be a forest officer."

[34]. As may be noticed, firstly, the State Government may notify a large chunk of land under Section 3 to prevent erosion and for the conservation of sub-soil water and thereafter issue directions under Section 4 in respect of the entire or part of that land. The notification dated 27.11.1997 (Annexure P-2) has been issued by the Forest Department, Haryana in exercise of its powers under Section 3 of the PLPA, comprising the areas of revenue estates of Kalka and Panchkula sub-divisions of District Panchkula.

[35]. Thereafter, the notification dated 28.11.1997 (Annexure P-3) under Section 4 of the PLPA has been issued prohibiting the 'cutting of trees' or timber except eucalyptus and poplar or the collection or removal or subjection to any manufacturing process of any forest produce other than flower, fruit and honey, save for bona fide domestic or agricultural purposes of the right holders. In addition, owners/right holders of the land have been asked to sell tree or timber only after obtaining 'permit' from the CWP No.20134 of 2004 -: 23 :- Divisional Forest Officer and the purchase of khair trees has been solely assigned to the Haryana Forest Development Corporation Limited. The directions issued vide the notification under Section 4 of the PLPA, however, do not apply to the entire area notified under section 3 on 27.11.1997. Rather, these directions are confined to the following areas of Districts Panchkula, Ambala and Yamuna Nagar:-

District Tehsil Villages

Panchkula Kalka Areas lying on the north side of

metalled and unmetalled

road connecting Chandigarh,

Ambala Naraingarh Panchkula, Ramgarh, Raipur

Rani, Naraingarh, Sadhaura,

Bilaspur, Chhachhrauli,

Yamuna Nagar Dadupur and reaching Jamuna

river near villages Nathanpur

and Lakur.

[36]. The restrictions against cutting of trees etc. issued by the

Forest Department under Section 4 of the PLPA, give rise to yet another ancillary question "as to whether such notified areas constitute "forest land"?" In T.N. Godavarman Thirumulkpad v. Union of India & Others, (1997)2 SCC 267, the Hon'ble Supreme Court ruled that the expression "forest land" occurring in section 2 of the Forest (Conservation) Act, 1980 (in short the 1980 Act) will not only include 'forest' as understood in the dictionary sense but also any area recorded as 'forest' in the Government record irrespective of the ownership. In fact, the lands notified under section 4 or 5 of the PLPA are treated as "forest land" by the Forest Department, Haryana, as has been noticed by the Supreme Court in the following passages of its decision in IA No.1758 of 2001 in Writ Petition (Civil) no.4677 of 1985 (M.C. Mehta v. Union of India, JT 2004 CWP No.20134 of 2004 -: 24 :- SC 214):-

" 80. 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.

81. 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 only in their record the area has been shown as forest but the affidavits have been filed in this Court stating the area to be `forest'. In T.N. Godavarman Thirumulkpad v.

Union of India and others, (1997)2 SCC 267,

this Court held that the term `forest' is to be

understood in the dictionary sense and also

that any area regarded as a 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 for the Central Government for

diversion of such land for non-forestry

purpose....."

"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." (Emphasis applied)

[37]. Suffice it to state here that the powers of the State Govt. to

CWP No.20134 of 2004 -: 25 :-

impose restrictions or issue directions under sections 3, 4 and 5 of the PLPA are supplementary and complimentary to its somewhat similar powers under Section 35 of the Indian Forest Act, 1927 (in short the 1927 Act). The only inescapable conclusion would be that if directions against cutting of trees or timber etc. have been issued under Section 4 in respect of an area or a part thereof notified for the purpose of 'conservation of sub- soil water' or 'prevention of erosion' under section 3 of the PLPA, such an area being 'forest land' for the purposes of 1927 and 1980 Acts, cannot be used for 'non forest purposes' save as permitted by the Central Govt. We, however, hasten to add that the afore-stated prohibition against use for "non forest purposes" does not ipso-facto apply to the entire area forming part of the notification under section 3 of the PLPA.

Issue No.2 - Whether the ongoing mining operations need to be regulated and monitored, and by whom, to protect the fragile ecology of the Shivalik range of hills?-

[38]. The lands notified under section 3 coupled with sections 4 or 5 of the PLPA being "forest lands" not to be used for "non forest purposes", except as provided under the Law, we are of the considered view that the power coupled with the duty enjoined upon the respondents under the 1980 and 1986 central acts leave no room to doubt that all types of "non forest activities" including mining or extraction of 'minor minerals' from the river- beds falling within or abutting the "forest lands" have to be regulated and monitored within the prescribed statutory framework. It has been so held by their Lordships of the Supreme Court in:- (i) Ambica Quarry Works v. State of Gujrat & Ors. 1987(1) SCC 213; (ii) Tarun Bhagat Singh v. Union of India, 1993 Supp. (3) SCC 115; and (iii) T.N. Godavarman CWP No.20134 of 2004 -: 26 :- Thirumulkpad v. Union of India & Ors. 1997(2) SCC 267.

[39]. Equally apt would be to refer to the 'Public Trust Doctrine' explained by the Apex Court in M.C. Mehta v. Kamal Nath & Ors., 1997 (1) SCC 388, to encompass within it all eco-systems operating in our natural resources. It was held that our legal system being based upon English common law includes the 'public trust doctrine' as a part of its jurisprudence and the State is only a Trustee of all 'natural resources' which are by nature meant for 'public use' and 'enjoyment'. Public at large was held to be the beneficiary of the sea-shore, raining waters, air, forest and ecologically fragile lands. Their Lordships ruled that the State as a Trustee is under a legal duty to protect the 'natural resources' which are meant for public use and cannot be converted to 'private ownership'. Re- enforcing the 'public trust doctrine' and the principle of 'intergenerational equity', the Supreme Court in T.N. Godavarman Thirumulpad v. Union of India, (2006)1 SCC 1, ruled that - "... Natural resources are not the ownership of any one State or individual, the public at large is its beneficiary and, therefore, the contention that the amount of NPV shall be made over to the State Government cannot be accepted. The environment is not State property and is a national asset. In any case, the object of charging NPV is to utilize the fund to conserve the ecology without in any manner affecting proprietary rights of the State Government over the land, timber or the minerals. It is the obligation of all to conserve the environment, and for its utilization, it is necessary to have regard to the principles of sustainable development and intergenerational equity ...". It was further observed that the, "natural resources are the assets of the entire nation. It is the obligation of all concerned, including the Union CWP No.20134 of 2004 -: 27 :- Government and State Governments to conserve and not waste these resources. Any threat to the ecology can lead to violation of right of enjoyment of healthy life guaranteed under Article 21...". [40]. The Central or the State Governments are, therefore, under an accented legal obligation to ensure that the pressures of the changing needs do not trespass the balancing principles of 'sustainable development'. In our view, the notification dated 14.9.2006 is also a leap towards performance of such duties entrusted to the Central Govt. under the 1986 Act. Similarly, it is imperative upon the enforcing authorities constituted or notified under the Central Acts to monitor the scheduled activities and ensure that no one tampers with the legislative intentment behind these Acts.

Issue No.3 - Whether the mining activities in the area of Shivalik range of Himalayas falls within the ambit of notification dated 14.9.2006 (Annexure P-2)?

[41]. This takes us to the third limb of the controversy, namely, applicability of the notification dated 14.9.2006 qua those mining activities which are in operation in the Shivalik range of Himalayas statedly for the last over 30 years. There is indeed no quarrel that the 'prior environmental clearance' is mandatory for all the new projects or activities listed in the Schedule to the notification dated 14.9.2006. There are, however, divergent views on the question as to whether or not such 'prior environmental clearance' is required for the ongoing mining operations, especially when there is no 'expansion' or 'modernization' done to the activity which has already been on.

[42]. The 1986 Act is dedicated to the cause of 'protection and CWP No.20134 of 2004 -: 28 :- improvement of environment' as well as the 'prevention of hazards to human beings, other living creatures, plants and property' which adheres essentially to the axiom of 'sustainable development'. The public interest policy propounded by the Parliament, therefore, deserves rapid enforcement and given a chance, the courts' endeavour would as well be to interpret and construe the provisions of the 1986 act in a manner that achieves the legislative object as against the onslaught on natural resources. [43]. While including the project/activity of "mining of minerals" in the Schedule to the notification dated 14.9.2006, the Central Govt. was presumptuously aware of the fact that the maximum lease period under the Mines and Minerals (Regulation & Development) Act, 1957 being upto 30 years, there could have been some subsisting mining lease/contracts as on 14.09.2006. Nevertheless, the Central Government consciously brought the mining activities within the purview of the notification. The subject- notification need not be read or interpreted like a Statute, the expressions used therein are to be construed rather in a manner subservient to the object sought to be achieved.

[44]. The nature and profile of a project/activity are the best guides to determine, on case to case basis, as to whether such a 'project'/'activity' is different from or just a replica of what was actually in operation previously. Looking at the nature of the mining activities, it appears to us that no sooner does the contract/lease period come to an end and the mining operations stand temporarily halted, than their re-start on the basis of a new contract, lease or licence would amount to a new project/activity. We say so for the reason that quarrying rights are auctioned after reasonable intervals and the statistics would show a substantial difference in the bid CWP No.20134 of 2004 -: 29 :- amount, the royalty, the extent of mining area, the identified quarries, the strength of man or machine power, the quantity of the 'minor minerals' to be extracted, transportation fleet and other allied industrial activities like stone-crushing etc. as compared to the previous such auction. Not only this, the above mentioned factors are required to be furnished in Form-I prescribed in Appendix-I of the notification dated 14.9.2006 and have a direct bearing on the nature and extent of the steps which the Expert Appraisal Committee may direct a contractor/lessee to take while granting the 'environmental clearance'. We accordingly hold that every new contract, lease or licence of a 'mining area' or renewal thereof, shall amount to the start of a new project or activity, attracting the regulatory measures enumerated by the notification dated 14.9.2006. [45]. The issue, in fact, is no longer res integra. In Ambica Quarry works (supra), a mining lease was granted in the year 1971 for a period of 10 years. When the lease period was about to expire, the lessee applied for renewal of the lease but it was declined on the ground that the land being a "reserve forest" was regulated by the Forest (Conservation) Act, 1980, in terms whereof, the 'forest land' could not be used for 'non-forest purposes'. The lessee's contention that the lease was executed much before the 1980 Act came into force and as such its provisions won't apply in the case of a subsisting contract, was rejected after holding that keeping the primary purpose of the 1980 Act in view, all interpretations must sub-serve and help implementation of the intention of the Act.

Issue No.4 - As to whether these mining activities should be banned or allowed to continue till the 'prior environmental clearance' is granted by the Central Govt. in the Ministry of Environment and Forests on CWP No.20134 of 2004 -: 30 :- the recommendations of the Environment Appraisal Committee? [46]. Having held that the notification dated 14.9.2006 applies to the existing mining activities also, we re-iterate that the powers vested with the Central Government under sections 3 and 5 of the 1986 act to take measures to protect and improve environment, and issue directions in that regard, are not subject to any other law except the Act itself. The notification dated 14.9.2006 which also derives its force from these provisions, directs, in no uncertain terms that from the date of its publication, required construction of new 'projects or activities' or the 'expansion or modernization' of 'existing projects and activities' listed in the Schedule 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"

. No new mining contract or lease in respect of the mining quarries spread over an area of 50 hectares and above can, thus, be granted without 'prior environmental clearance, which is also a pre-condition for 'expansion' or 'modernization' of the existing projects/activities included in the Schedule to the notification. We wish to fend off all sorts of doubts and clarify that if the total area where the mining activities are permitted or which can be mined in future, is more than 50 hectares, the mandatory requirement of 'prior environmental clearance' cannot be defeated through artificial means like division of the 'mining area' into different quarries or zones of smaller sizes.

Their Lordships of the Supreme Court in T.N. Godavarman Thirumulpad v. Union of India, (2006)13 SCC 689, have strongly CWP No.20134 of 2004 -: 31 :- deprecated the action of Delhi Development Authority in auctioning a piece of land for construction of hotels, convention centres, etc. without the requisite environmental clearances.

Issue No.5 - As to whether the 'prior environmental clearance' is to be obtained by the State of Haryana or by the contractor/lessee? [47]. The fifth question posed before us is somewhat ticklish and hotly debated, may be for the reason that the notification dated 14.9.2006 or the 1986 Act do not throw any light on it. The 'mining activities' have their own unique characteristic. While the surface is owned by the private owners, the 'minerals' lying underneath vest with the State. The State permits extraction of the minerals for heavy consideration determined through public auction, besides the 'royalty'. The extracted mineral then becomes the sole property of the lessee/contractor. The 'mining activities', thus, are a joint venture of public and private participation, with the common object of profiteering. As explained earlier, the State is also the Trustee of the 'natural resources' meant to be utilized by public on the principles of 'sustainable development' and 'intergenerational equity'. Can it be then permissible for the State to devise an 'escape route' and shift the responsibility to seek 'prior environmental clearance' entirely on the shoulders of the private contractor/lessee/licenceee? The impersonal character of the 'State' gives rise to yet another dilemma as what one of its Departments plans or professes, is opposed by the other. Even in the present case, the Forest and Environment Department(s) on one hand and the Mining Department on the other are at the loggerheads. In view of the over-riding effect of Section 24(1) of the 1986 Act, the State Governments too are amenable to the directions that may be issued by the Central CWP No.20134 of 2004 -: 32 :- Government, no matter what their power or authority be under any other Statute/law. The 'Public Trust Doctrine' and the 'Intergenerational Equity' also cast legal duty upon the State Govt. to protect the 'natural resources'. No immunity, therefore, can be claimed by the State on the strength of its 'sovereignty' for the reason that every power enjoined upon by a State is preceded by its constitutional and statutory 'duties', including as a Trustee of the 'natural resources'. That apart, whenever the State ventures into commercial activities like the conditional sale of its monopolistic proprietary rights over the 'minerals' to improve its fiscal conditions, it shall have to abide by the consequential legal obligations, rather with stricter parameters.

[48]. With a view to segregating the duties and responsibilities between the 'public' and 'private' partners who both are beneficiaries of the 'project/activities', included in the Schedule to the Notification dated 14.9.2006, we have minutely gone through the different clauses of the notification dated 14.9.2006. As noticed earlier, that the 'environmental clearance' process comprises four stages, namely, (i) screening (only for category B projects); (ii) scoping; (iii) public consultation; and (iv) appraisal. Since the mining of minerals is a category 'A' project/activity, the first stage of "screening" which entails the 'scrutiny of an application' by the State Level Expert Appraisal Committee for determining whether or not the project/activity requires further environmental stages for preparation of environmental impact assessment, stands dispensed with. "Scoping" refers to the process by which the Expert Appraisal Committee (for category 'A' cases) and State Level Expert Appraisal Committee (for category 'B' cases) determines the detailed and comprehensive 'Terms of CWP No.20134 of 2004 -: 33 :- Reference' (TOR) addressing all relevant environmental concerns for the preparation of an 'Environment Impact Assessment Report' (EIAR) of the project/activity for which 'prior environmental clearance' is sought. It appears to us that the expressions "all relevant environmental concerns" for the preparation of "Environment Impact Assessment Report" contain and carry the 'soul' and 'spirit' of the notification and are so vital that their rigid or mechanical construction confining them to a mining area of 50 hectares or so, shall be self-destructive to the very purpose and object of the subject-notification. We may elaborate and explain that the measures recommended by the 'State level Expert Appraisal Committee' or approved by the 'Central Appraisal Committee' for one mining zone would have no visible impact or become an ineffective exercise unless planned and applied homogeneously in the 'entire mining area' by clubbing together all the Mining Zones. We say so for the reason that the geographical map of the subject mining area clearly depicts that the river(s), seasonal streams, forests, culverts and hills etc. are spread all over the place and it is in between these 'natural resources' that the mining zones have been carved out. Therefore, unless a composite and unified Terms of Reference (TOR) addressing all the possible and relevant environmental concerns for the entire area is prepared and cared for in the Environment Impact Assessment Report (EIAR), the salutary object behind the notification dated 14.9.2006 would remain a mirage - far beyond the actual impact.

[49]. Stage three, namely, the "public consultation" is an equally significant barrier. Though public consultation does not mean 'public participation', the object behind it is to have the viewpoint of the locals. If CWP No.20134 of 2004 -: 34 :- the process of public consultation is restricted to every 'mining zone', it may invite conflicting and self-contradictory viewpoints. The project proponent may influence the locale to escape the conditions that may be imposed while granting 'environmental clearance'. Contrary to it, if the suggestions/viewpoints are solicited in respect of the 'entire mining area', the Competent Authority would be enriched with an overall view to understand and appreciate the ground realities.

[50]. After the process of 'public consultation' is over, following sub-paras (vii) of Stage (3) (Public Consultation) and Para (IV) - Stage (4)

- Appraisal of paragraph 7 of the notification take us to the next significant stage of "appraisal":-

III. Stage (3) - Public Consultation:

(i) to (vi) xxx xxxx xxxx xxxx xxxxx

(vii) After completion of the public consultation, the

applicant shall address all the material environmental

concerns expressed during this process, and make appropriate

changes in the draft EIA and EMP. The final EIA report, so

prepared, shall be submitted by the applicant to the concerned

regulatory authority for appraisal. The applicant may

alternatively submit a supplementary report to draft EIA and

EMP addressing all the concerns expressed during the public

consultation.

IV. Stage (4) - Appraisal:

(i) Appraisal means the detailed scrutiny by the Expert

Appraisal Committee or State Level Expert Appraisal

Committee of the application and other documents like the

CWP No.20134 of 2004 -: 35 :-

Final EIA report, outcome of the public consultations

including public hearing proceedings, submitted by the

applicant to the regulatory authority concerned for grant of

environmental clearance. This appraisal shall be made by

Expert Appraisal Committee or State Level Expert Appraisal

Committee concerned in a transparent manner in a

proceeding to which the applicant shall be invited for

furnishing necessary clarifications in person or through an

authorized representative. On conclusion of this proceeding,

the Expert Appraisal Committee or State Level Expert

Appraisal Committee concerned shall make categorical

recommendations to the regulatory authority concerned either

for grant of prior environmental clearance on stipulated terms

and conditions, or rejection of the application for prior

environmental clearance, together with reasons for the same.

(ii) The appraisal of all projects or activities which are not required to undergo public consultation, or submit an Environment Impact Assessment report, shall be carried out on the basis of the prescribed application Form 1 and Form 1A as applicable, any other relevant validated information available and the site visit wherever the same is considered as necessary by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned." (emphasis applied) [51]. We may also usefully reproduce the following sub-paras (i) to

(iv) of Paragraph 8 of the notification dated 14.9.2006 pertaining to the "Grant or rejection of prior environmental clearance":- CWP No.20134 of 2004 -: 36 :-

"8. Grant or Rejection of Prior Environmental Clearance

(E): (i) The regulatory authority shall consider the

recommendations of the EAC or SEAC concerned and convey

its decision to the applicant within forty five days of the receipt

of the recommendations of the Expert Appraisal Committee or

State Level Expert Appraisal Committee concerned or in other

words within one hundred and five days of the receipt of the

final Environment Impact Assessment Report, and where

Environment Impact Assessment is not required, within one

hundred and five days of the receipt of the complete

application with requisite documents, except as provided

below.

(ii) The regulatory authority shall normally accept the

recommendations of the Expert Appraisal Committee or State

Level Expert Appraisal Committee concerned. In cases where

it disagrees with the recommendations of the Expert Appraisal

Committee or State Level Expert Appraisal Committee

concerned, the regulatory authority shall request

reconsideration by the Expert Appraisal Committee or State

Level Expert Appraisal Committee concerned within forty five

days of the receipt of the recommendations of the Expert

Appraisal Committee or State Level Expert Appraisal

Committee concerned while stating the reasons for the

disagreement. An intimation of this decision shall be

simultaneously conveyed to the applicant. The Expert

Appraisal Committee or State Level Expert Appraisal

CWP No.20134 of 2004 -: 37 :-

Committee concerned, in turn, shall consider the observations

of the regulatory authority and furnish its views on the same

within a further period of sixty days. The decision of the

regulatory authority after considering the views of the Expert

Appraisal Committee or State Level Expert Appraisal

Committee concerned shall be final and conveyed to the

applicant by the regulatory authority concerned within the

next thirty days.

(iii) xxx xxx xxx xxx xxx xxx

(iv) On expiry of the period specified for decision by the

regulatory authority under paragraph (i) and (ii) above, as

applicable, the decision of the regulatory authority, and the

final recommendations of the Expert Appraisal Committee or

State Level Expert Appraisal Committee concerned shall be

public documents." (emphasis applied)

[52]. It is, thus, possible that after the 'public consultation' is over,

the draft 'Environment Impact Assessment Report' (EIAR) and EMP may

require appropriate changes. The final EIAR then has to be submitted by

the applicant to the concerned Regulatory Authority for 'appraisal'.

Alternatively, the applicant may submit a supplementary report to the draft EIAR and EMP addressing all the concerns expressed during the 'public consultation' for the purpose of "appraisal", which, in turn means the scrutiny of the "application"along with other appended documents like the final EIAR, or the proceedings of the public hearing conducted by the 'Expert Appraisal Committee'/the 'State Level Expert Appraisal Committee'. The 'appraisal' of these documents is expected to be in a transparent manner CWP No.20134 of 2004 -: 38 :- and in association with the applicant so as to enable him to furnish necessary clarifications followed by the categorical recommendations by the Expert Appraisal Committee/State level Expert Appraisal Committee to the Regulatory Authority either for grant of 'prior environmental clearance' on stipulated terms and conditions or rejection of the application along with the reasons.

[53]. What is significant to be noticed is that the 'Environment Impact Assessment Report' along with the outcome of the 'public consultation' in respect thereto, are some of the supporting documents only to be relied upon by an "applicant" at stage four, namely, detailed scrutiny of his 'application' by the Expert Appraisal Committee or the State Level Expert Appraisal Committee, as the case may be. It also stands crystalized that the Competent Authority may then accept the application and make conditional recommendations to the Regulatory Authority for the 'prior environmental clearance' or may reject the application together with the reasons. The fourth stage obviously binds down the applicant to adhere to the stipulated terms and conditions that may be imposed in the event of grant of 'prior environmental clearance'.

[54]. The procedural dissection leaves no room to doubt that the notification dated 14.9.2006 has conceptualized two distinct and separate stages, i.e., the first stage contemplating preparation of the 'Environmental Impact Assessment Report' and the 2nd stage of its 'appraisal' by the Competent Authority along with the 'application' and 'other documents' to be appended by the applicant, which then may lead to acceptance of the application subject to the terms and conditions or its rejection with reasons. While 'Environmental Impact Assessment Report' has to be prepared for the CWP No.20134 of 2004 -: 39 :- entire area comprising different mining zones, the 'prior environmental clearance' may be sought and granted to the individual applicant, who then, besides the State Govt., shall be individually bound by the terms and conditions. We say so for the reason that the State Govt. being the principal owner of the 'minor minerals' in the entire mining area of more than 50 hectares and consisting of several 'mining zones', the said mining area cannot be subjected to artificial divisions for the purposes of preparation of the Environmental Impact Assessment Report. Also a successful bidder of a 'mining zone' cannot be burdened with the responsibility of getting the Environmental Impact Assessment Report prepared and approved for the 'entire mining area' which also includes invaluable but depleting 'natural resources' like rivers, streams, forests, etc. The State Govt. being their sole Trustee and lawful guardian is, therefore, under a profound legal obligation to protect these natural resources from encroachment by the private beneficiaries so that the commercial enthusiasm does not eat away the aesthetics and pristine glory of the environment and the eco-systems.

[55]. We accordingly hold that before auctioning the 'mining areas' falling within the fragile Shivalik ranges of Himalayas located in more than one Districts, the State of Haryana shall be under a legal obligation to apply to the Expert Appraisal Committee (for category A project/activities) for determining the comprehensive Terms of Reference (TOR), addressing all relevant environmental concerns for the preparation of Environmental Impact Assessment Report (EIAR). It shall be the duty of the State of Haryana alone to ensure that the Environment Impact Assessment Report is prepared for the 'entire mining areas' in Shivalik ranges and put to stage CWP No.20134 of 2004 -: 40 :- No.III, namely, 'public consultation'. The State Govt. shall see as to whether, in the light of the suggestions received from the public, any modification in the EIAR or supplement thereto is also required. If the final EIAR indicates the feasibility of 'prior environmental clearance', it is then only that the State Govt. may conduct 'public auction' for entering into a contract/lease/licence in respect of the 'mining areas' with a clear stipulation in the 'Terms and Condition of the Public Auction' that the highest bidder shall be under obligation to apply for 'appraisal' of his project/activity by the Expert Appraisal Committee and the 'Environment Impact Assessment Report' along with the proceedings of the public consultation shall be made available to such applicant by the State Govt. to enable him to appear before the Expert Appraisal Committee and furnish the necessary clarifications and/or to abide by those Terms and Conditions which the 'Expert Appraisal Committee' may impose while granting the 'prior environmental clearance'. Nothing shall, however, preclude the State Govt. from including the expenditure incurred by it in 'scoping', preparation of the 'Terms of Reference' or the resultant preparation of 'Environment Impact Assessment Report' and the 'public consultation', in the bid-amount to be fixed at the time of 'public auction' of the mining areas. In other words, firstly, the State Govt. shall itself incur the entire expenditure in the discharge of its afore-stated legal duties but it shall be entitled to apportion the said expenditure amongst the successful bidders. We hold so for the reason that in terms of paragraphs 9 and 10 of the notification dated 14.9.2006, the 'environmental clearance' once granted for the mining projects can be valid for a maximum period of 30 years and it is a 'transferable instrument'. The 'environmental clearance', thus, shall be a CWP No.20134 of 2004 -: 41 :- State property and on expiry of the contract/ lease/ licence period, will be re-useable during its validity period on the same terms and conditions without any fresh reference for the 'prior environmental clearance'. Our directions to the State to share the responsibility along with the successful bidders, to seek the 'prior environmental clearance' is also fortified by a recent order passed by the Supreme Court in T. N. Godavarman Thirumulpad v. Union of India, (2008)2 SCC 222. Therein, the Supreme Court, while adopting the approach of 'sustainable development', refused to take risk of placing an important national asset (Bauxite Deposits) into the hands of V Company without being satisfied about its credibility but keeping the poor and backward condition of the area in view, granted liberty to the State owned company S and the State concerned to jointly apply for the grant of the clearance of the project in question and also to agree to comply with the recommended rehabilitation package.

[56]. The only issue left for consideration is the legality and propriety of the procedure being followed by the State of Haryana in granting the 'short-term permits' for mining. The learned Additional Advocate General submitted that the State Govt. itself is reluctant to grant 'short-term permits' the practice of which, according to him, was resorted to as no contract for the fixed term could be awarded due to interim directions issued by this Court. He submitted that 'short-term permits' are granted by "displaying" a "public notice" in the office of the Mining Officer and/or by getting a news-item published to that effect. He, however, fairly conceded that neither any 'public notice' inviting all the prospective bidders to participate in the 'auction' has ever been published, nor any 'auction' is held CWP No.20134 of 2004 -: 42 :- for the grant of 'short-term permits'. In fact, the Chief Judicial Magistrate- cum-Local Commissioner in her second interim report has categorically unveiled the discretionary distribution of State largesse through a self- serving procedure which lacks transparency. Suffice it to say that the procedure being followed presently is totally abhorrent to the principle of equality guaranteed under Article 14 of the Constitution. We accordingly direct that henceforth and till the 'prior environmental clearance' is granted within the Time-Schedule laid down herein-after, no 'short terms permits' shall be granted without issuing public notices in at least two daily newspapers, one each in vernacular and English, and on the same terms and conditions that are imposed on the successful bidders for the five years' contract. We further make it clear that if the State Govt. or their private partners fail to obtain the requisite 'prior environmental clearance' within the stipulated period, no further 'short-term permits' or a contract/lease/licence in any form whatsoever, shall be granted and the 'mining activities' shall be stopped forthwith, notwithstanding the alleged hardship or the consequences highlighted by the respondents. [57]. To sum up, both these petitions are disposed of with the following consolidated directions:-

(i) the lands/areas forming part of the notification under

section 3 of the Punjab Land Preservation Act, 1900 and in

respect of which restrictions have been imposed under

Section 4 of the said Act are declared to be "forest lands" for

the purposes of the Indian Forest Act, 1927 and the Forest

(Conservation) Act, 1980. It is, accordingly, directed that

these areas shall not be used for 'non forest purposes'

CWP No.20134 of 2004 -: 43 :-

including the mining of 'major' or 'minor' minerals;

(ii) Notification dated 14.9.2006 issued by the Central Govt. in

exercise of its powers under the Environment (Protection)

Act, 1986 governs all the 'mining activities' irrespective of

the fact that the 'minerals' are 'major' or 'minor' and is, thus,

fully applicable in respect of the 'mining areas' in the

Shivalik ranges of Himalayas, including those falling in

District Panchkula. No mining activity shall be carried out

in these areas without the 'prior environmental clearance',

save beyond the maximum period granted hereinafter for

obtaining such 'prior environmental clearance'.

(iii) the State of Haryana and the State Level Expert Appraisal

Committee are directed to enforce the Notification dated

14.9.2006 qua all the 'mining areas' and monitor the mining

operations regularly and vigorously so as to bring them in

conformity with the terms and conditions imposed while

granting the prior environmental clearance;

(iv) Notification dated 14.9.2006 is directed to be applied qua

those 'mining areas' also where the 'mining activities' used

to be undertaken prior to its issuance and every new

contract/licence/lease permitting the 'mining' shall be taken

as a 'new activity' for the purpose of the said notification;

(v) it is also directed that wherever the 'total mining area' is a

homogeneous or otherwise identifiable piece of 50 hectares

or above, the Notification dated 14.9.2006 shall be

enforceable even if such mining area has been divided into

CWP No.20134 of 2004 -: 44 :-

zones or quarrying plots of smaller sizes.

(vi) the State of Haryana is directed to apply to the 'Expert

Appraisal Committee' for determining the Terms of

Reference (TOR) and get the Environment Impact

Assessment Report (EIAR) prepared for the entire 'mining

area' falling within the fragile Shivalik ranges of Himalayas

and then complete the process of 'public consultation',

prescribed as Stage No.III in the Central Govt. notification

dated 14.9.2006 and thereafter get a final Environment

Impact Assessment Report prepared. The State Government

shall submit the application, complete in all respects, before

31st August, 2009;

(vii) we also direct that no public auction shall be held and no

licence/contract/lease or right for extraction of minerals

from the Shivalik ranges of Himalayas shall be granted by

the State of Haryana until the final 'Environment Impact

Assessment Report' is prepared and made available as a

public document to the prospective bidders;

(viii) every successful bidder shall be required, and be under a

legal obligation, to apply along with a copy of the final

Environment Impact Assessment Report and obtain the

'prior environmental clearance', and then abide by the Terms

and Conditions as may be imposed by the 'Expert Appraisal

Committee'. No lease/licence/contract shall attain finality

unless 'prior environmental clearance' is granted and the

project proponent undertakes the responsibility to comply

CWP No.20134 of 2004 -: 45 :-

with the terms and conditions as may be imposed by the

Expert Appraisal Committee. The Project Proponents/

successful bidders shall apply for 'prior environmental

clearance' within one month from the date of auction;

(ix) the Govt. of Haryana shall be entitled to recover the

expenditure incurred by it in the compliance of stage Nos.(I)

to (III) (whichever is applicable) prescribed in the Central

Govt. notification dated 14.9.2006 for obtaining the 'prior

environmental clearance' including the expenditure incurred

on 'public consultation' or the preparation of the tentative

and/or final 'Environment Impact Assessment Report',

proportionately from the successful bidders;

(x) the Expert Appraisal Committee is directed to prepare the

final Environment Impact Assessment Report (EIAR) within

a period of six months from the date of receipt of the

application from the State Government and thereafter to

grant or reject the 'prior environmental clearance' within a

period of two months from the date of receipt of the

application of the project proponent/successful bidders;

(xi) having regard to all the attending circumstances and to

obviate varied hardships caused to the general public, labour

and the State, we direct that the mining activities may

continue till 28th February, 2010, however, only on the basis

of the contract/licence granted to the highest bidders through

a transparent 'public auction' held after wide publicity and

subject to the terms and conditions, as are imposed while

CWP No.20134 of 2004 -: 46 :-

granting a five-year contract and further subject to strict

compliance of such terms and conditions;

(xii) we clarify that the State of Haryana shall not stand

absolved of its legal obligation on mere successful

accomplishment of the Fourth Stage enumerated in the

Central Govt. notification dated 14.9.2006 and it shall

continue to enforce the measures contained in the Forest

Department's notifications dated 27.11.1997 and

28.11.1997 (Annexures P-2 & P-3) issued under Sections 3

and 4 of the Punjab Land Preservation Act, 1990,

respectively.

[58]. There shall be no order as to costs.

[ Surya Kant ]

Judge

May 15, 2009. [T.S. Thakur]

kadyan Chief Justice