Y.K Sabharwal, J.— The main question to be examined in these matters is whether the mining activity in area up to 5 kilometres from the Delhi-Haryana border on the Haryana side of the ridge and also in the Aravalli hills causes environment degradation and what directions are required to be issued. The background in which the question has come up for consideration may first be noticed.
2. The Haryana Pollution Control Board (HPCB) was directed by orders of this Court dated 20-11-1995 to inspect and ascertain the impact of mining operation on Badkal lake and Surajkund — an ecologically sensitive area falling within the State of Haryana. In the report that was submitted, it was stated that explosives were being used for rock-blasting for the purpose of mining; unscientific mining operations were resulting in laying of overburden materials (topsoil and murum remain) haphazardly; and deep mining for extracting silica sand lumps was causing an ecological disaster as these mines lie unreclaimed and abandoned. It was, inter alia, recommended that an environmental management plan (EMP) should be prepared by mine leaseholders for their mines and actual mining operations made operative after obtaining approval from the State Departments of Environment or HPCB; EMP should be implemented following a time-bound action plan; land reclamation and afforestation programmes were also to be included in EMP and had to be implemented strictly by the implementing authorities. The report recommended stoppage of mining activities within a radius of 5 km from Badkal lake and Surajkund (tourist places). The Haryana Government, on the basis of the recommendations made in the report, stopped mining operations within the radius of 5 km of Badkal lake and Surajkund.
3. The mine operators raised objections to the recommendations of stoppage of mining operations. According to them, pollution, if any, that was generated by the mining activities could not go beyond a distance of 1 km and the stoppage was wholly unjustified.
NEERI report and earlier directions
4. By order dated 12-4-1996, the Court sought the expert opinion of the National Environmental Engineering Research Institute (NEERI) on the point whether the mining operations in the said area were to be stopped in the interest of environmental protection, pollution control and tourism development and, if so, whether the limit should be 5 km or less. NEERI in its inspection report dated 20-4-1996, inter alia, recommended that:
“6.1 Mining.—(1) Detailed exploratory operations need to be undertaken to facilitate the estimation of reserves in the region, and for scientific management of mining operations.
(2) The mine lease-owners need to undertake the mining operations in series i.e mining activities must be completed to full potential in a block before moving to the next. This will help in reclamation of land in the block in which mining operations have been completed.
(3) to (9)***
(10) The environmental management plans (EMPs) being formulated by the mine-owners should include land rejuvenation and afforestation programmes, and other measures necessary to protect the quality of the environment and human health. The mining operations should commence only after the approval of EMPs by a designated authority. A time-bound action plan needs to be initiated for the implementation of the measures delineated in the environmental management plans.
(11) and (12) ***
(13) The question of lifting the ban on mining operations needs to be considered in conjunction with the implementation of stringent pollution control, land reclamation, green belt, and other environmental management measures so as to facilitate the availability of construction materials and employment opportunities for the workers along with the protection of environment and public health.
(14) It is considered necessary to prepare a regional environmental management plan for urgent implementation to enable eco-friendly regional development in the area.”
5. On consideration of the reports, this Court came to the conclusion that the mining activities in the vicinity of tourist resorts were bound to cast a serious impact on the local ecology. The mining brings extensive alteration in the natural land profile of the area. Mined pits and unattended dumps of overburden 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 the environment and control pollution within the vicinity of two tourist resorts, it was necessary to stop mining activity within 2 km radius of the tourist resorts of Badkal lake and Surajkund. The Court further directed the Director, HPCB to enforce all the recommendations of NEERI contained in para 6.1 of its report so far as the mining operations in the State of Haryana were concerned. Further, it was directed that failing to comply with the recommendations could result in the closure of the mining operations and that the mining leases within the area from 2 km to 5 km radius would not be renewed without obtaining prior no-objection certificate from HPCB as also from the Central Pollution Control Board (CPCB). Unless both the Boards grant no-objection certificate, the mining leases in the said area would not be renewed (M.C Mehta v. Union of India (1996) 8 SCC 462).
Present issues
6. The aspects to be examined include the compliance with the conditions imposed by the Pollution Boards while granting no-objection certificates for mining and also compliance with various statutory provisions and notifications as also the obtaining of the requisite clearances and permissions from the authorities concerned before starting the mining operations.
7. In matters under consideration, the areas of mining fall within the districts of Faridabad and Gurgaon in Haryana State.
8. IA No. 1785 of 2001 has been filed by the Delhi Ridge Management Board praying that the Government of Haryana be directed to stop all mining activities and pumping of groundwater in and from the area up to 5 km from Delhi-Haryana border on the Haryana side of the ridge, inter alia, stating that in the larger interest of maintaining the ecological balance of the environment and protecting Asola Bhatti Wildlife Sanctuary and the ridge located in Delhi and adjoining Haryana, it was necessary to stop mining. In the application, it has been averred that Asola Bhatti Wildlife Sanctuary is located on the southern ridge which is one of the oldest mountain ranges of the world and represents the biogeographical outer layer of the Aravalli mountain range which is one of the most protected areas in the country. The sanctuary is significant as it is instrumental in protecting the green lungs of the National Capital of Delhi and acts as a carbon sink for the industrial and vehicular emissions of the country's capital which is witnessing rapid growth in its pollution level each year. The ridge, it is averred, is a potential shelter belt against advancing desertification and has been notified as a wildlife sanctuary and reserve forest by the Government of the 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 sanctuary's habitat and also pumping of large quantity of groundwater from mining pits. It was also stated that the groundwater level was being depleted as a result of the mining activity. Further, the quarry dust that comes out of mining pits is a serious health hazard for the human population living nearby and also the wild animals inhabiting the sanctuary pointing out that the mining and extraction of groundwater had been banned in the National Capital Territory of Delhi and the ridge being protected as per the order of this Court, it was necessary, that the ridge on the Haryana side was also protected — that being the extension of the range and, therefore, mining, withdrawal of groundwater and destruction of flora, etc. should also be restricted outside Delhi or at least up to 5 km from Delhi-Haryana border towards Haryana.
9. On 6-5-2002, this Court directed the Chief Secretary, Government of Haryana to stop, within 48 hours, all mining activities and pumping of groundwater in and from an area up to 5 km from the Delhi-Haryana border on the Haryana side of the ridge and also in the Aravalli hills. The question to be considered is whether the order should be made absolute or vacated or modified.
10. Our examination of the issues is confined to the effect on the ecology of the mining activity carried on within an area of 5 km of Delhi-Haryana border on the Haryana side in areas falling within the districts of Faridabad and Gurgaon and in the Aravalli hills within Gurgaon district. The question is whether the mining activity deserves to be absolutely banned or permitted on compliance of stringent conditions and by monitoring it to prevent the environmental pollution.
EPCA visits
11. In terms of the order passed by this Court on 22-7-2002, the Environmental Pollution Control Authority (EPCA) was directed to give a report with regard to the environment in the area preferably after a personal visit to the area in question without any advance notice. It may be noted that EPCA was constituted by the Government of India under notification dated 29-1-1998 issued in exercise of power under Sections 3(1) and (3) of the Environment (Protection) Act, 1986 (for short “the EP Act”). Mr Bhure Lal was appointed its Chairman. EPCA was constituted with a view to protect and improve the quality of environment and preventing, controlling and abating environmental pollution. EPCA has also the power to deal with environment issues pertaining to the National Capital Region which may be referred to it by the Central Government. EPCA has jurisdiction over the National Capital Region as defined in clause (f) of Section 2 of the National Capital Region Planning Board Act, 1985. The districts of Gurgaon and Faridabad are part of the National Capital Region, under Section 2(f) read with the Schedule to the said Act.
12. The Chairman of CPCB is a convenor member of EPCA. EPCA made a surprise visit to the area to see the mining sites. The mining sites visited are located in the villages of Anangpur, Pali, Mohabatabad and Manger, which fall within the notified area of 5 km radius from the Delhi border in Faridabad district. EPCA also visited mining sites that are located outside the notified zone in Kot area. EPCA also held consultation with the officials of the Central Ground Water Board and obtained their opinion on this matter. On 7-8-2002, members of 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 groundwater 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 10-5-1996 (1996) 8 SCC 462.
EPCA first report and recommendations
14. EPCA gave its report dated 9-8-2002. 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 at least 5 other mining sites in this area, which EPCA is not clear who owns.
At the time of visit there was no mining taking place. So EPCA members assessed level of compliance with some of the key conditions laid down in the NOCs. There was clear evidence of violation of the following conditions:
(i) The excavated pits should be filled with fly ash or municipal solid waste in the bottom layers. The topsoil should be used as a top layer while filling the pit. Land reclamation and tree plantation should be done in a planned manner over the reclaimed mine pits.
(ii) The applicant shall not discharge any effluent or groundwater outside their lease premises and shall take appropriate measures for rainwater harvesting and reuse of water so as not to affect adversely the groundwater table of the area. No mining operation shall be carried out in the water table area.
(iii) The green belt proposed in the environment management plan around the proposed mining lease area and along the roadside shall be developed.
The most serious violation noticed by EPCA was the continuation of mining even after reaching the groundwater level which has been disallowed by the regulatory agencies. Photographs taken by EPCA, which show deep mining pits have turned into large lakes of groundwater. In this mining lease area EPCA members saw extensive and deep water bodies. The water was blue, indicating that this was groundwater and not surface water run-off collected in the pits.
Even more serious violation noticed was configuration of water pipes laid out to draw water out of the pits to throw them over hills and let the water flow out. This is a grave misuse of precious groundwater in an area where groundwater is the only source of water for the local population — both urban and rural.
EPCA members talked to local villagers who complained that water table in the area has gone down over a period of time and that the village is facing water shortage. While earlier groundwater could be tracked at the depth of 30-35 ft now deep borewells have been dug to get drinking water, in addition, noise and dust pollution from the mining sites is a problem.
Goodwill Mine in Pali village.—EPCA found similar violation of conditions and evidence of mining sites reaching the level of groundwater in deep pits and pipes fitted to drain out water here as well.
During the long drive to various mining sites, EPCA could not see any credible sign of green belt along the roads. Moreover, one important condition of NOCs is that ‘a safe distance should be maintained from the road to overburden dumps and the mine pits in accordance with the directions/notifications of the Department of Environment, Haryana and Bureau of Mines’. But EPCA noticed mining sites very close to the roads and also very close to the ecologically sensitive area of Asola Sanctuary near the Goodwill Mine.
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 leftover 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 a.m to 9 a.m 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-minimising equipment.
Mining around Manger village.—Again the same situation was found around Anangpur. The villagers interviewed here were caught between the devastation of the mines, desperate shortage of drinking water and the only livelihood option that these manual stone quarries provided.
Legal mining in Kot area.—As mining is banned along the 5 km radius from the Delhi border, EPCA also visited some mines that are outside the notified area to ascertain the state of the environment. In this area, surface mining is being done and not deep mining. Therefore, as yet, the groundwater reserves are not being touched in this region. The entire area was like a giant dust field. We saw no evidence of any afforestation or even dust-minimising efforts being undertaken in the areas that are being mined. We did see one tanker of water, which was sprinkling the roads, unable to stop the dust from swirling. EPCA could not see any protection for the workers from dust. As this area will clearly emerge as a major mining area in the future, it is important that the mining area is properly demarcated and environment management plan implemented to enable scientific mining to minimise degradation of the environment.
Faridabad-Gurgaon Road.—EPCA saw mining alongside the road. Though the mines were closed because of the Hon'ble Court directive, EPCA saw vast pits and mining activity in this area. This is the road for the proposed bypass from Delhi.
3. The present laws and regulations in the area.—We have assessed the current applicable laws and regulations in the area, which govern land use and mining so as to understand what efforts have been made by different agencies to ensure compliance:
• In May 1992, parts of the Aravalli range were declared ecologically sensitive under the Environment (Protection) Act. Under this notification, certain activities — including all new mining operations, including renewals of mining leases — are restricted and permission has to be sought from the Ministry of Environment and Forests. This notification is valid for reserved forests in the districts of Gurgaon in Haryana and Alwar in Rajasthan.
• In August 1992, the Forest Department of Haryana had issued a notification under the Punjab Land Preservation Act, 1900, banning the clearing and breaking up of the land not under cultivation, quarrying of stone … in the Badkal area without prior permission of the Forest Department. This ban was for 30 years. Earlier it had already issued a similar notification for the Pali area for 25 years.
• In 1996, the Hon'ble Supreme Court banned all mining activity within 2 km 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 2-5 km was allowed under condition that there would be strict adherence to the environment management plan laid down by NEERI. It has to be noted here that 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 km 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 the two lakes. On this basis, the Hon'ble Court directed that radius be extended to 2 km for a green belt and to cushion the impacts of air and noise pollution.
• The Hon'ble Court in its order asked the agencies to ensure enforcement of the recommendations of NEERI. It directed that ‘failure to comply with the recommendations may result in the closure of the mining operations’.
4. Compliance and enforcement: absent and missing.—To discuss the future strategy for this area, it would be important to assess the track record of the different agencies in ensuring that the previous orders and directives are enforced and complied with:
1. No mining within 2 km of Badkal and Surajkund: probably enforced. But difficult to assess as the area is hilly.
2. Mining within 2-5 km should get permission from Haryana Pollution Control Board and CPCB. CPCB has issued 2 NOCs dated 20-12-2001 and 6-5-2002. No further record has been found of NOCs given for mining in this area. EPCA has not been able to find the NOCs granted by the Haryana Pollution Control Board.
Compliance with the Environmental Management Plans Recommended by NEERI as Directed by the Hon'ble Supreme Court
Sl. No. Directive Enforced or not 1. 200 m wide green belt along Surajkund and Badkal. Shrubs and wild growth. No real evidence of good afforestation. 2. 100 m wide green belt outside mining lease boundary. Definitely not done. EPCA did not see afforestation, except for some recent plantation of dying and dead trees in one or two places. The signboards were more prominent than the trees they were supposed to show. 3. 100 m open peripheral area around stone-crusher zone with green belt. Not done. 4. Green belt on either side of the road between Surajkund and Badkal. We saw large-scale construction on this road — from schools to management colleges and housing colonies. 5. Mining should commence only after the environmental management plan (EMP) is approved by a designated authority. There is no evidence of an environmental management plan being adhered to in this region.
Adherence to the Conditions of the No-Objection Certificate Granted by CPCB for Mining
Sl. No. Directive Enforced or not 1. Mining to be done with approved mining plan. No evidence. 2. Excavated pit to be filled by fly ash or municipal solid waste in the bottom layers. Overburden should be used in the middle layer. Topsoil on top layer and afforestation. EPCA saw no evidence that this recommendation had even been attempted to be followed. All abandoned mines were left open and degraded. The entire region was pockmarked with deep holes and overburden. 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 groundwater 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 quality 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 Ground Water 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. Ground Water Board has not given any clearance that we could ascertain.
From the above, it is clear that little or nothing has been done to seriously comply with the directives of the Hon'ble Supreme Court as well as to enforce the regulations and conditions laid down by the authorities for environmental management of the mining areas.
5. Impact on groundwater reserves.—It has been argued by the Government of Haryana in its IA No. 1785 of 2001 that the Expert Committee constituted by it under the Chairmanship of the Principal Conservator of Forests has submitted that there is a water divide between the two boundaries of the two States which prevents the flow of water from Delhi side to Haryana side. It has, therefore, argued that the mining on the Haryana side is not affecting the water balance in the Delhi side of the ridge.
It has further said that only in four pits the groundwater was pumped regularly and in two pits occasionally. Therefore, it has argued that little or no impact on groundwater reserves is possible.
5.1 Ground Water Board.—EPCA requested the Central Ground Water Board (CGWB) for its opinion. The Board has based its recommendations on the data available with it as well as a field survey. The key issues are:
1. On the issue of the ridge providing a water divide between the two States, CGWB has maintained that while the surface water divide follows the Delhi-Haryana border, except in the catchment of Bhuria nala, ‘the surface water divide may not be the groundwater divide in the strict sense due to secondary porosity and also flat-topped nature of the hills’. It also states that the Aravalli hills are highly fractured, jointed and weathered making the major recharge zone for the surrounding areas.
2. On the impact on the groundwater reserves due to mining, the Board has found that its observation wells have shown an increase in groundwater levels in Anangpur and Manger, after the mining has been stopped in May. Therefore, in spite of monsoon failure and continued abstraction of water, the observation wells have noted increased water levels within just 2 months of the mining being closed.
The groundwater levels in a tubewell monitored in Mewla Maharajpur during mid-July and first week of August showed a rise of 0.18 metres. A higher rise — 0.71 to 0.78 metres, was observed in the two tubewells near the Manger mines and Pali mines in the two months since the mines were closed. This clearly points to the impact of mining on groundwater 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 Bhuria nala and in the case of Pali, the groundwater was discharged into a nala to 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 of NCT Delhi, Faridabad, Ballabhgarh Municipal Corporation area, Gurgaon town as water-stressed areas and has put regulatory measures on groundwater development in these areas.
Given all this, CGWB concludes that the ‘dewatering of mines in the Aravalli hills has affected groundwater regimes of the mine area as well as buffer zone resulting in the depletion of groundwater resources’.
5.2 Compliance with groundwater-related regulations.—The NOC given by the Central Pollution Control Board includes an explicit condition regarding groundwater:
That the mine-owner will ensure that there is no discharge of effluent of groundwater outside lease premises. They must take measures for rainwater harvesting and reuse of water so as not to affect the groundwater table in the areas. Most importantly, it stipulates that no mining operations shall be carried out in the water table area.
This condition has been grossly violated. Even the Haryana Government's affidavit in court accepts that pumping of groundwater is taking place, though it attempts to soften the issue by arguing that it is only being done in a few cases.
Under this condition, mining is not allowed in the water table area. EPCA saw deep and extensive pits of mines with vast water bodies. EPCA also saw evidence of pumps and pipes being used to drain out the groundwater so that mining could continue. Therefore, the miners are mining for silica, but also in the process, mining and destroying the groundwater reserves of the areas.
In times of such water stress and desperation, this water mining is nothing less than a gross act of wastage of a key resource. This time the stress has been further aggravated by the failure of monsoon. Notices have been issued in the nearby housing colonies stating that fall in groundwater table due to lack of rains is responsible for water shortage in the area this season. This only indicates how important it is to conserve groundwater in the region for long-term sustainability of drinking water sources. Groundwater is the only source of drinking water here.”
15. On the basis of study and visit as well as the report of the Central Ground Water Board, EPCA made the following recommendations:
“1. The ban on the mining activities and pumping of groundwater in and from an area up to 5 km from the Delhi-Haryana border in the Haryana side of the ridge and also in the Aravalli hill must be maintained.
2. Not only must further degradation be halted but all efforts must be made to ensure that the local economy is rejuvenated, with the use of plantations and local water-harvesting-based opportunities. It is 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 of the mining operations in this area is substantial — between Rs 50 lakhs to Rs 1 crore a day were the gross estimates provided to us. However, we do not have any estimate of the money that has been given to villagers from this revenue. But there was little evidence in these poor and destitute villages that any effort had been made to share the proceeds with them.
3. The Central Ground Water Board must be consulted urgently about what should be done with the huge standing water in the area. This is a valuable national resource and the Board should be asked if the water is best conserved by covering it to stop evaporation or should it be used for recharge and storage with further water-harvesting efforts.
4. The Ministry of Environment and Forests (MOEF) should be asked to extend the notification under the Environment (Protection) Act to the Faridabad part of the Aravalli ridge as well. Currently, the notification is only for Gurgaon district. This notification declaring it an ecologically sensitive area will help to regulate the activities in this region.
5. It is not clear to us if adequate planning for water is being done in the large-scale construction activities being undertaken in this area. This aspect is outside the purview of this report but needs to be examined carefully.
6. It must also be noted that Gurgaon-Faridabad Road is being proposed as the major bypass for the city of Delhi. The Hon'ble Court will note its directives on the air pollution case in this regard. It has been said to the Court in that matter that the Government of Haryana is intending to widen the road and bids have even been issued to this effect. Therefore, it is all the more important that the mining activity along the road must not be allowed. The 5 km ban from the border of Delhi will take care of this requirement.
7. EPCA would also recommend that the mining area outside the 5 km area must be demarcated and regulated. In this context, EPCA would like to draw the attention of the Court to the violations and gross disregard for regulations found in the present mines. It is not out of place to mention that these mines are owned by very powerful and highly placed individuals in the establishment. In a related case the High Court of Punjab and Haryana has directed on 20-4-2001 a CBI enquiry on the basis of a public interest litigation filed by a journalist. In its order the Hon'ble Court maintained that its examination has found evidence that illegal mining operations 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 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 Centre.
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 Chairman, Central Ground Water Board on impact of pumping of groundwater from mines and groundwater regime in mining area and its buffer zone in Aravalli hills of NCT Delhi, Faridabad and Gurgaon districts of Haryana was also annexed. The said note reads as under:
“Based on available data with Central Ground Water Board and a quick survey in and around mining area in Aravalli hills, following observations are made—
1. The area under consideration forms part of Aravalli range from where mining of silica sand and other construction material was being carried out. The mining of silica sand was mainly carried out below water table by dewatering the mines whereas mining for other construction material is carried out above water table. The major mining areas are Anangpur, Pali, Manger and Mohabatabad.
2. The surface water divide in the area approximately follows Delhi-Haryana border except the catchment of Bhuria nala flowing in Haryana State, which extends in Asola area of Delhi State also. The formations in the Aravalli hills are highly fractured, jointed and weathered making it the major recharge zone for the surrounding areas. The surface water divide may not be groundwater divide in strict sense due to secondary porosity and also flat-topped nature of the hills.
3. The pumping of groundwater during mining of silica sand affects groundwater regime of surrounding area. During the field visit, it was reported by local people that during the dewatering of mines there was decline in groundwater levels and reduction in discharge in surrounding wells whereas after stoppage of pumping the rise in water levels and increase in discharge has been reported. In few observation wells on downstream side of mines rise in groundwater levels has been observed in Anangpur and Manger villages after stoppage of abstraction of groundwater from deep mines. The groundwater levels in a tubewell monitored in Mewla Maharajpur during mid-July 2002 and first week of August 2002 were 24.39 and 24.57 m below ground level respectively, showing a rise of 0.18 m. Groundwater levels in a tubewell located at a temple near Manger mine in second week of July 2002 and first week of August 2002 were 51.70 and 49.99 m below ground level respectively showing a rise of 0.71 m. Similarly, groundwater levels in a tubewell at Indernagar in Delhi area near Pali mine in third week of June 2002 and first week of August 2002 were 59.68 and 58.90 m below ground level respectively showing a rise of 0.78 m. The stoppage of dewatering of mines has resulted in rise of groundwater 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 groundwater flow in the area.
5. It is claimed that abandoned pits act as recharge pits and in some cases the pumped groundwater is put in these pits so that there may not be substantial modification in the conditions of groundwater regime. All the groundwater pumped out from Anangpur mine has not been put into abandoned adjoining pits resulting in wastage of groundwater by discharge into Bhuria nala. Observation has 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 groundwater from Pali mine was being discharged in an easterly flowing nala to Badkal lake and from Manger mine in a south-westerly flowing nala towards Dhauj lake causing enormous losses to groundwater resources of the area. Further, the pumped-out water cannot be recharged effectively due to its high silt content. In silica sand mines the water table has been intersected and is presently exposed to the atmosphere causing huge losses to groundwater through evaporation.
6. Studies conducted by Central Ground Water Board have revealed that water levels in Faridabad new town which falls in buffer zone of mine area have declined by 1.44 m/year. The decline of groundwater level in the towns has been attributed to overdevelopment of groundwater for domestic and industrial uses which is totally dependent on groundwater. The pumping out of groundwater for mining of silica sand in recharge zone might have aggravated the declining trend of groundwater levels which otherwise would have contributed to the buffer zone.
7. Central Ground Water Authority has notified south district of NCT Delhi and Faridabad and Ballabhgarh Municipal Corporation area and Gurgaon town and adjoining industrial area in August 2000, October 1998 and December 2000 respectively mainly on consideration of overdevelopment of groundwater resources resulting in substantial decline in groundwater levels. Regulatory measures on groundwater development have been imposed in these areas.
8. Therefore, it is observed that dewatering of mines in Aravalli hills has affected groundwater regime of the mine area as well as buffer zone resulting in depletion of groundwater resources.”
17. When the aforesaid report came up for consideration, some of the mine-owners submitted that their mines had not been inspected by Bhure Lal Committee. Particulars of the mines that were stated to have not been inspected were filed on 23-9-2002. Bhure Lal Committee was requested to carry out the inspection of the said areas/mines. The Committee was also permitted to associate such other organisations or persons as it may deem fit and proper for the purpose of inspection.
EPCA second report and recommendations
18. In terms of the aforesaid order, 26 mines were inspected and report dated 21-10-2002 was submitted. The observations made as a result of inspection in regard to each mine are as follows:
“The numbers indicated in parenthesis are serial numbers of mines given in the list of mines furnished by Kailash Vasdev, Senior Advocate to the Hon'ble Supreme Court that was forwarded to EPCA:
1. (9)
Name of mine/area: New Anangpur Silica Sand Mines, M/s S.P Sethi.
Location: Village New Anangpur, District Faridabad.
Total area of land on lease/Actual area under mining activity: 186.52 ha.
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 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 rainwater was seen. But what was very clear was that this mining lease was adjoining the boundary of Delhi. Only recent plantation of saplings was noticed along the path.
2. (13)
Name of mine/area: Anangpur Silica Sand Mines, M/s Mohan Ram and Co.
Location: Village Anangpur, District Faridabad.
Total area of land on lease/Actual area under mining activity: 175.00 ha.
Mineral extracted: Silica sand mines.
Status of mining: Below groundwater level.
Whether groundwater is extracted: Yes.
Status of environmental clearances: NOC granted by State Pollution Control Board for renewal of lease in 1999. No environmental management plan.
This mine has large pits where sand and silica was being extracted. This was a working mine and had large amount of water in the two pits. EPCA members also saw a pipe, which was currently unused, meant for pumping out the water from the pits. The pits were at least 100-150 feet deep and the groundwater had been clearly exploited for some time. Large amount of overburden was also seen in the area.
3. (12)
Name of mine/area: Anangpur Silica Sand Mines, M/s S.P Sethi, Anangpur.
Location: Village Anangpur, District Faridabad.
Total area of land on lease/Actual area under mining activity: 489.34 ha.
Mineral extracted: Silica sand, china clay, ordinary sand, stone road material (RM) and masonry stone (MS).
Status of mining: Below groundwater table.
Whether groundwater is extracted: Yes.
Status of environmental clearances: No clearance given. No environmental management plan.
The mining pit here has turned into a huge groundwater lake. Groundwater is fully exposed. Extensive overburden could be seen near the pits. It was very evident that no major efforts were made to create plantation in the area. Some new and young saplings could be seen alongside the paths leading to the pits. Clearly these were planted very recently.
4. (8)
Name of mine/area: Anangpur Silica Sand Mines, M/s Rajdhani Minerals Corporation.
Location: Village Anangpur, District Faridabad.
Total area of land on lease/Actual area under mining activity: 188.47 ha.
Mineral extracted: Silica sand, china clay, ordinary sand, stone RM and MS.
Status: Seen one closed pit. Did not see any water.
Status of environmental clearances: NOC granted by State Pollution Control Board.
5. (7)
Name of mine/area: Mewla Maharajpur Silica Sand Mines, M/s K.C Ahuja & Co.
Location: Village Mewla Maharajpur, District Faridabad.
Total area of land on lease/Actual area under mining activity: 162.905 ha.
Mineral extracted: Silica sand, china clay, ordinary sand, stone road material (RM) and masonry stone (MS).
Status: Surface mining from the rocks.
Whether groundwater is extracted: No.
Status of environmental clearances: No clearance given. No environmental management plan.
One pit seen, mostly stone being quarried. Some water seen. No evidence of tree plantation seen in the area. But mine pits are adjoining the road.
6. (19)
Name of mine/area: M/s Ramkrishna Purni Devi.
Location: Village Badkal, District Faridabad.
Total area of land on lease/Actual area under mining activity: 369.4 ha.
(Of this 121 ha 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 groundwater 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 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, District Faridabad.
Mineral extracted: Ordinary stone, road metal, masonry stone.
Under litigation in the High Court of Delhi.
8. (11)
Name of mine/area: Pali Silica Sand Mines, M/s Goodwill Mineral Corporation.
Location: Village Pali, District Faridabad.
Total area of land on lease/Actual area under mining activity: 50.5 ha.
Mineral extracted: Silica sand, china clay, sand.
Status of mining: Below water table.
Whether groundwater is extracted: Yes.
Status of environmental clearances: NOC granted by State Pollution Control Board in 1999 for renewal of lease. Asked to comply with conditions laid down by CPCB as well. No environmental management plan as yet.
A deep pit with extensive water body. Pipes, pumps and generators could be seen at the site. Water is extracted from the pit. Very little plantation could be seen at the site. The pit is contiguous to other mines in the area and the extent of groundwater being exploited is massive and the expanse is vast. Some trees have been planted along the roadside. This mine is adjoining the main Delhi bypass of Faridabad-Gurgaon, which is being tendered for a four-lane highway.
9. (17)
Name of mine/area: M/s Sheeshpal Singh.
Location: Village Pali, District Faridabad.
Total area of land on lease/Actual area under mining activity: 127.95 ha.
Mineral extracted: Silica, china clay, sand, quartzite.
Status: Below groundwater table.
Whether groundwater is extracted: Yes.
Status of environmental clearances: No clearance given. No environmental management plan.
Large lake of groundwater could be seen at the site. The lake apparently covers a few contiguous mining pits. No efforts to create plantation in the area except a few young saplings which seemed to have been planted very recently. Huge overburden could be seen near the pits. This mine is adjoining the main Delhi bypass of Faridabad-Gurgaon, which is being tendered for a four-lane highway.
10. (20)
Name of mine/area: M/s Ram Chandar.
Location: Villages Gothra, Mohabatabad, District Faridabad.
Total area of land on lease/Actual area under mining activity: 296 ha.
Mineral extracted: Silica sand, ordinary sand, road metal and masonry stone.
Status: Below groundwater table.
Whether groundwater is extracted: Yes.
Status of environmental clearances: No clearance given. No environmental management plan.
Deep mining pits with large water bodies could be seen. The mine is also contiguous to the other mines so the amount of water that is being exploited is massive and uncontrolled. Huge amounts of overburden were also seen in the area. In this mine some efforts have been made to create plantations and the trees, unlike those seen in other areas, were more mature. 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, District Faridabad.
Total area of land on lease/Actual area under mining activity: 63.225 ha.
Mineral extracted: Silica sand, china clay, ordinary sand, road metal and masonry stone.
Status: Above groundwater.
Whether groundwater 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 groundwater levels as yet. But mine near 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, District Faridabad.
Total area of land on lease/Actual area under mining activity: 59.3875 ha.
Mineral extracted: Ordinary sand, road metal and masonry stone.
Status: Above groundwater table.
Whether groundwater 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 groundwater levels as yet. But mine near Delhi bypass of Faridabad-Gurgaon Road.
12B.
Name of mine/area: M/s Seven Mines and Minerals Pvt. Ltd.
Location: Plot No. 8, Village Manger, District Faridabad.
Total area of land on lease/Actual area under mining activity: 63.75 ha.
Mineral extracted: Ordinary sand, road metal and masonry stone.
Status: Above groundwater table.
Whether groundwater 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 groundwater levels as yet. But mine near Delhi bypass of Faridabad-Gurgaon Road.
13. (25)
Name of mine/area: M/s Ashok Minerals Industry.
Location: Plot No. 7, Village Manger, District Faridabad.
Total area of land on lease/Actual area under mining activity: 67.00 ha.
Status: Above groundwater table.
Whether groundwater is extracted: No.
Status of environmental clearances: No clearance given. No environmental management plan.
Observed surface stone mining. No water seen. New lease and so the mines have not reached groundwater levels as yet. But mine is on the Delhi bypass of Faridabad-Gurgaon Road.
14. (23)
Name of mine/area: M/s Jaikrishan Impex Pvt. Ltd.
Location: Plots Nos. 2 and 3, Village Manger, District Faridabad.
Total area of land on lease/Actual area under mining activity: 44.785 ha and 56.4375 ha.
Mineral extracted: Stone mining.
Status: Below groundwater table.
Whether groundwater is extracted: Yes.
Status of environmental clearances: No clearance given. No environmental management plan.
Was shown one pit with small water collection. But at a distance seen another pit with large amount of groundwater collected. This mine is being worked and clearly water must have been pumped from the mine. Deep pits seen. But mine is near Delhi bypass of Faridabad-Gurgaon Road.
15. (10)
Name of mine/area: M/s Faridabad Gurgaon Minerals.
Location: Plot No. 5, Village Manger, District Faridabad.
Total area of land on lease/Actual area under mining activity: 33.0375 ha.
Mineral extracted: Ordinary sand, road metal and masonry stone.
Status: Below groundwater table.
Whether groundwater is extracted: Yes.
Status of environmental clearances: No clearance given. No environmental management plan.
Exposed groundwater could be seen. This mine had 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, District Faridabad.
Total area of land on lease/Actual area under mining activity: 126.75 ha.
Mineral extracted: Silica sand and stone.
Status: Above groundwater table.
Whether groundwater 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, District Faridabad.
Total area of land on lease/Actual area under mining activity: 44.48 ha.
Mineral extracted: Silica/Ord. sand and stone, road metal and masonry stone.
Status: Above groundwater table.
Whether groundwater 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.P Sethi.
Location: Village Pali, District Faridabad.
Total area of land on lease/Actual area under mining activity: 82.20 ha.
Mineral extracted: Silica/Ord. sand, china clay, stone (road metal and masonry).
Status: Below groundwater table.
Whether groundwater is extracted: Yes.
Status of environmental clearances: NOC given by State Pollution Control Board in 1999 for renewal of lease. No environmental management plan.
Pit with little water seen. Being worked. Large amount of overburden was seen close to mine. 1 ha of plantation created near mine.
19. (3)
Name of mine/area: Pali Silica Sand Mines, M/s P.K Sethi.
Location: Pali, District Faridabad.
Total area of land on lease/Actual area under mining activity: 162 ha.
Mineral extracted: Sand, china clay, stone (road and masonry).
Status: Above groundwater table.
Whether groundwater is extracted: No.
Status of environmental clearances: No clearance given. No environmental management plan.
Pit with no water seen. Being worked. Large amount of overburden was seen close to mine.
20. (5)
Name of mine/area: Pali Silica Sand Mines, M/s Lucky Minerals.
Location: Village Pali, District Faridabad.
Total area of land on lease/Actual area under mining activity: 261.36 ha.
Mineral extracted: Sand, china clay, stone (road metal and masonry).
Status: Above groundwater table.
Whether groundwater is extracted: No.
Status of environmental clearances: No clearance given. No environmental management plan.
Pit with no water seen. Being worked. Large amount of overburden was seen close to mine. Nominal plantation seen. But area with lessee is very large — over 261 ha — and no idea if other mines in the area have reached water levels.
21. (6)
Name of mine/area: Mohabatabad Silica Sand Mines, M/s P.K Sethi.
Location: Village Mohabatabad, District Faridabad.
Total area of land on lease/Actual area under mining activity: 399.59 ha.
Mineral extracted: Sand, china clay, stone (road metal and masonry).
Status: Above groundwater table.
Whether groundwater is extracted: No.
Status of environmental clearances: No clearance given. No environmental management plan.
Shown pit where stone is being quarried. But area with lessee is very large — over almost 400 ha — and no idea if other mines in the area have reached water level as yet.
22. (14)
Name of mine/area: M/s Tejvir Singh and Co.
Location: Village Bandhwari, District Gurgaon.
Total area of land on lease/Actual area under mining activity: 91.20 ha.
Mineral extracted: Silica sand, ordinary sand, china clay, quartz and stone mine.
Status: Above groundwater table.
Whether groundwater 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 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, District Gurgaon.
Total area of land on lease/Actual area under mining activity: 19.15 ha.
Mineral extracted: Silica sand and china clay.
Status: Above groundwater table.
Whether groundwater 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 bypass.
24. (16)
Name of mine/area: Mr Ashok Gupta.
Location: Plot No. 3, Village Behrampur, District Gurgaon.
Total area of land on lease/Actual area under mining activity: 94.05 ha.
Mineral extracted: Silica sand, quartzite.
Status: Above groundwater table.
Whether groundwater is extracted: No.
Status of environmental clearances: No clearance given. No environmental management plan.
Stone quarry. Recent lease. No plantation seen. But near village. As this mine is near the five km radius, other mines with crushers and blasting seen at close distance.
11B. (22)
Name of mine/area: M/s Maruti Minerals.
Location: Village Haidpur, District Gurgaon.
Total area of land on lease/Actual area under mining activity: 18.125 ha.
Mineral extracted: Stone.
Status: Above groundwater table.
Whether groundwater is extracted: No.
Status of environmental clearances: No clearance given. No environmental management plan.
Stone quarry. No plantation seen. Near habitation of Gurgaon town.
25. (21)
Name of mine/area: Mr Karan Singh.
Location: Village Nathpur, District Gurgaon.
Total area of land on lease/Actual area under mining activity: 5.996 ha.
Mineral extracted: Silica sand.
Status: Above groundwater level (surface mining).
Whether groundwater is extracted: No.
Status of environmental clearances: No clearance given. No environmental management plan.
Stone quarry. No plantation seen. Mine on main Delhi-Gurgaon Road at the border of Delhi. Mine lease recently awarded at the edge of DLF Residential Colony. Allegations that illegal mining is being done at the Delhi side of this mine, next to the protected area of Delhi forest.”
19. In respect of the groundwater regime the report states that:
“The key issue to examine is the impact of mining on the groundwater regime in the region. It is evident from the inspection done by EPCA that groundwater reserves are being exploited and destroyed, it must be stressed that it is not a matter of individual mines reaching groundwater levels or not, the issue to examine is the water regime of the entire area.”
20. The report further states that
“during his inspection of the mines, Kartar Singh Badana, Minister of Cooperatives in the State and also a mine-owner told EPCA members that the impact of groundwater abstraction is minimal. He maintained that the miners were harvesting 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 groundwater 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 the oldest-exposed lithology with upland units. The rock type is mainly quartzite and these rise 150-200 metres above ground level. In the quartzites the groundwater aquifers occur in the weathered zones and interspaces within interconnected joints and fractures. According to CGWB, the unconfined aquifer is about 50 metres thick. But between 50-110 metres below ground level (bgl) 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 resource. EPCA saw deep and extensive pits of mines with vast water bodies — stretching at times to a kilometre and more. EPCA also saw evidence of pumps and pipes being used to drain out the groundwater so that mining could continue. Therefore, the miners are mining for silica, but also in the process mining and destroying the groundwater reserves of the areas.
23. The NOC given by the Central Pollution Control Board includes an explicit condition regarding groundwater:
“That the mine-owner will ensure that there is no discharge of effluent or groundwater outside lease premises. They must take measures for rainwater harvesting and reuse of water so as not to affect the groundwater table in the areas. Most importantly, it stipulates that there should be no mining operations carried out in the water table area.”
24. The report of the Central Ground Water Board states very categorically that the groundwater table is already at a critical stage in Faridabad. It states:
“The stage of groundwater development of Faridabad block is 89.02 per cent in dark category and no further abstraction of groundwater should be carried out to avoid any adverse environment impact on groundwater regimes. Thus no additional tubewells are advisable to be constructed for community water supply scheme even though they may not affect the storage in Badkal lake.”
The report further states that “the domestic water supply to Faridabad town has to be catered to and there are no surface water sources which can be tapped”.
25. EPCA further observes that most of the mining is happening inside the municipal area of Faridabad. In fact, the Department of Mines and Geology states in the letter dated 12-10-2002,
“it is submitted that the mineral rights of the mines vests with the State Government…. The surface rights of Villages Badkal, Pali, Gothra, Mohabatabad, Anangpur, Mewla Maharajpur are with Municipal Corporation, Faridabad and Manger revenue estate is with Gram Panchayat.”
26. Sensitivity of this region is further accentuated by its close proximity to the reserved forests of Asola Sanctuary located at the border of Delhi and Haryana and other ecologically sensitive areas like Surajkund and Badkal lake.
27. Even in Gurgaon, the CGWB report indicates that the groundwater scenario is grim. According to CGWB, the “groundwater development of Gurgaon block is 124 per cent, indicating that the entire block in which Gurgaon town is situated is overexploited”. The groundwater levels are also falling dangerously according to the report of CGWB which recommends strict regulatory measures for groundwater use.
28. EPCA, while reaffirming the recommendations that had been made in its earlier report dated 9-8-2002, made the following recommendations:
“The overall assessment of the environmental impact of the mining activities in the area especially its implication for groundwater 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 9-8-2002.
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 an acute survival crisis is expected. Interviews with local villagers in the vicinity of mines confirm that water shortage is already a serious problem in the region.
The extent of degradation in and around mines is the evidence of failure to enforce basic rules for ecological safeguards. Recent attempts at planting trees are cosmetic. Exposed groundwater lakes observed in mining sites only reconfirm the worst fears. If mining could not be stopped in so many pits even after reaching groundwater level there is no guarantee that even some of those mines still at the surface level will abide by the stipulated norms when they reach the water table.”
Submissions for confirming or varying order dated 6-5-2002
29. Having regard to the ground realities as reflected in the aforesaid reports, should the order passed on 6-5-2002‡ be varied is the question. The continuance of the order has been strenuously objected to by the mining leaseholders and also by the Government of Haryana. Various applications have been filed seeking vacation of the order and in support thereof, submissions have been made mainly by Mr Shanti Bhushan, Dr. Rajeev Dhavan, Mr Kapil Sibal, Mr K.B Rohatgi and Mr Dhruv Mehta representing the leaseholders and Mr Mukul Rohatgi, learned Additional Solicitor General representing the Government of Haryana. We have also heard Mr Raju Ramachandran and Mr Altaf Ahmed, learned Additional Solicitors General for the Ministry of Environment and Forests, Government of India, Mr C.S Vaidyanathan and Mr Kaushik (in support of IA No. 1825 of 2002 filed by the villagers). Mr Ranjit Kumar, learned amicus and Mr M.C Mehta, advocate/petitioner-in-person and Mr Kailash Vasdev for the Government of Delhi have made submissions in support of closure of mining activity and for making the order dated 6-5-2002 absolute by prohibiting all mining activities and pumping of groundwater in and from an area up to 5 km from Delhi-Haryana border in the Haryana side of the ridge and also in the Aravalli hills.
Notifications regarding mining on Aravalli hills
30. The notification dated 7-5-1992 issued by the Ministry of Environment and Forests, Government of India under Section 3(2)(v) of the EP Act read with Rule 5 of the Rules made under the said Act has considerable bearing on the aspect of mining in Aravalli hills. The notification, inter alia, bans all new mining operations including renewals of mining leases and sets out the procedure for taking prior permission before undertaking such an activity. The notification, insofar 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 causing environmental degradation in the region was published in the Gazette of India, Part II, Section 3 sub-section (2) vide S.O 25(E) dated 9-1-1992;
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, 1986 the Central Government hereby prohibits the carrying on of 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 including renewals of mining leases;
(b) existing mining leases in sanctuaries/national parks and areas covered under Project Tiger; and/or
(c) mining is being done without permission of the competent authority;
(iii) cutting of trees;
(iv) construction of any clusters of dwelling units, farmhouses, sheds, community centres, information centres and any other activity connected with such construction (including roads, a part of any infrastructure relating thereto);
(v)***
2. Any person who desires to undertake any of the abovementioned processes or operations in the said areas, shall submit an application to the Secretary, Ministry of Environment and Forests, New Delhi, in the attached application form (annexure) specifying, inter alia, details of the area and proposed process or operation. He shall also furnish an environment impact statement and an environmental management plan along with the application and such other information as may be required by the Central Government for considering the application.
3. The Central Government in the Ministry of Environment and Forests shall, having regard to the guidelines issued by it from time to time for giving effect to the provisions of the said Act, grant permission within a period of three months from the date of receipt of the application or where further information has been asked for from the applicant, within a period of three months from the date of the receipt of such information, or refuse permission within the said time on the basis of the impact of the proposed process or operation on the environment in the said area.
4. For seeking permission under this notification, an application in the prescribed form (see annexure), duly filled in, may be submitted to the Secretary, Ministry of Environment and Forests, Paryavaran Bhavan, CGO Complex, Lodi Road, New Delhi.
***
3. (b)(ii) Erodability classification of the proposed land.
***
5. (a) Water balance at site surface and groundwater availability and demand.
***
12. (a) Environmental impact assessment report.
(b) Environmental management plan: prepared as per guidelines of MEF issued from time to time.
(c) Detailed feasibility report.
(d) Proposal for diversion of forest land under Forest (Conservation) Act, 1980 including benefit-cost analysis.
13. Recommendations of the State Pollution Control Board and/or the State Department of Environment and Forests.”
31. The aforesaid notification, restricting mining activities in the Aravalli range is relevant for mining operation in Gurgaon district wherein part of Aravalli hill range exists.
32. The powers vested in the Central Government in terms of the aforesaid notification dated 7-5-1992 were delegated to the State Governments concerned, namely, Rajasthan and Haryana by issue of notification dated 29-11-1999 by the Central Government, Ministry of Environment and Forests. The said notification reads thus:
“Ministry of Environment and Forests Notification
New Delhi, 29-11-1999
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 Government of India in the Ministry of Environment and Forests No. S.O 319(E) dated 7-5-1992 subject to certain conditions which are as follows:
(i) the State Governments concerned, namely, Haryana and Rajasthan shall constitute an Expert Committee for each State as per the composition given in Schedule I annexed to this notification;
(ii) each State Government shall also constitute a Monitoring Committee, under the Chairmanship of the District Collector concerned (Gurgaon in Haryana and Alwar in Rajasthan) as given in Schedule II annexed to this notification which shall inter alia monitor the compliance of the conditions stipulated while according environmental clearance by such State Governments and report to such State Government about the violations, if any, and the action taken thereon;
(iii) the District Collectors of Gurgaon in Haryana and Alwar in Rajasthan shall be authorised by the respective State Governments to take necessary action under Section 5 of the said Act in respect of cases where the project proponents fail to implement the conditions.
2. The State Government concerned shall initiate steps to prepare a master plan for the development of the area covered by Notification No. S.O 319(E) dated 7-5-1992 integrating environmental concerns and keeping in view the future land use of the area. This master plan shall be prepared by the State agency concerned, approved by the competent authority and finally published, within two years from the date of issue of this notification, in accordance with the procedure laid down in the Town and Country Planning Act or any other similar Act of the respective State Government. The State Government concerned shall implement the master plan forthwith after its final publication.
3. Any person desirous of undertaking any of the activities mentioned in Notification No. S.O 319(E) dated 7-5-1992 shall submit an application to the Secretary, Department of Environment of the Government of Haryana/Rajasthan, as the case may be. The applicant shall also furnish environment impact statement and an environment management plan and such other information as may be prescribed by such State Governments. The application after due scrutiny shall be placed before the Expert Committee for its recommendations. Based on the recommendations of the Expert Committee, the Department of Environment in the State 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.”
(emphasis in original)
33. Schedules I and II of the notification set 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 organisation, 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 28-2-2003, has withdrawn the delegation in favour of the State Governments.
Notification of 27-1-1994 regarding environment impact assessment (EIA)
34. Another notification which is of considerable importance on the aspect of mining is dated 27-1-1994, as amended on 4-5-1994. The notification has been issued by the Ministry of Environment and Forests, Government of India, in exercise of powers conferred by sub-section (1) and clause (v) of sub-section (2) of Section 3 of the EP Act read with clause (d) of sub-rule (3) of Rule 6 of the EP Rules stipulating that expansion or modernisation of any activity (if the pollution load is to exceed the existing one) or a new project listed in Schedule I of the notification shall not be undertaken in any part of India unless it has been accorded environmental clearance by the Central Government in accordance with the procedure specified in the notification.
35. The issue in these matters is of the interpretation of the notification, its applicability also to mining leases granted earlier to the issue of the notification i.e at the time of the renewal of such mining lease. The notification dated 27-1-1994, to the extent material for the present purpose, reads as under:
“S.O 60(E).—Whereas a notification under clause (a) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 inviting objections from the public within sixty days from the date of publication of the said notification, against the intention of the Central Government to impose restrictions and prohibitions on the expansion and modernisation of any activity or new projects being undertaken in any part of India unless environmental clearance has been accorded by the Central Government or the State Government in accordance with the procedure specified in that notification was published as No. S.O 80(E) dated 28-1-1993:
And whereas all objections received have been duly considered;
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 clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby directs that on and from the date of publication of this notification in the Official Gazette, expansion or modernisation of any activity (if pollution load is to exceed the existing one) or a new project listed in Schedule I 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 hereinafter specified in this notification.
2. Requirements and procedure for seeking environmental clearance of projects:
I. (a) Any person who desires to undertake any new project or the expansion or modernisation 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 pro forma 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 summarily.
II. In case of the following site-specific projects:
(a) mining;
(b)-(d)***
(e) prospecting and exploration of major minerals in areas above 500 ha,
the project authorities will intimate the location of the project site to the Central Government in the Ministry of Environment and Forests while initiating any investigation and surveys. The Central Government in the Ministry of Environment and Forests will convey a decision regarding suitability or otherwise of the proposed site within a maximum period of thirty days. The said site clearance shall be granted for a sanctioned capacity and shall be valid for a period of five years for commencing the construction, operation or mining.
III. (a) The reports submitted with the application shall be evaluated and assessed by the impact assessment agency, and if deemed necessary it may consult a Committee of Experts, having a composition as specified in Schedule III of this notification. The impact assessment agency (IAA) would be the Union Ministry of Environment and Forests. The Committee of Experts mentioned above shall be constituted by the IAA or such other body under the Central Government authorised by the IAA in this regard.
(b) The said Committee of Experts shall have full right of entry and inspection of the site or, as the case may be, factory premises at any time prior to, during or after the commencement of the operations relating to the project.
(c) The impact assessment agency shall prepare a set of recommendations based on technical assessment of documents and data, furnished by the project authorities, supplemented by data collected during visits to sites or factories, if undertaken, and interaction with affected population and environmental groups, if necessary. Summary of the reports, the recommendation and the conditions, subject to which environmental clearance is given, shall be made available subject to the public interest to the parties concerned or environmental groups on request. Comments of the public may be solicited, if so decided by impact assessment agency, within thirty days of receipt of proposal, in public hearings arranged for the purpose after giving thirty days' notice of such hearings in at least two newspapers.
Public shall be provided access, subject to the public interest, to the summary of the reports/environmental management plans at the headquarters 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 apply to:
(a) any item falling under Entries 3, 18 and 20 of Schedule I to be located or proposed to be located in the areas covered by Notifications Nos. S.O 102(E) dated 1-2-1989, S.O 114(E) dated 20-2-1991, S.O 416(E) dated 20-6-1991 and S.O 319(E) dated 7-5-1992.
(b) any item falling under Entries 1, 2, 3, 4, 5, 7, 9, 10, 12, 13, 14, 16, 17, 19, 21, 25 and 27 of Schedule I if the investment is less than Rs 50 crores.
(c) any item reserved for small-scale industrial sector with investments less than Rs 1 crore.
4. Concealing factual data or submission of false, misleading data/reports, decisions or recommendations would lead to the project being rejected. Approval, if granted earlier on the basis of false data would also be revoked. Misleading and wrong information will cover the following:
— False information.
— False data.
— Engineered reports.
— Concealing of factual data.
— False recommendations or decisions.
Schedule I
(See paras 1 and 2)
List of Projects Requiring Environmental Clearance from the Central Government
1. Nuclear power and related projects such as heavy water plants, nuclear fuel complex, rare earths.
2.-19. ***
20. Mining projects (major minerals) with leases more than 5 hectares.
21.-29. ***
***
Schedule III
[See sub-para III(a) of para 2]
Composition of the Expert Committees for Environmental Impact Assessment
1. The Committee will consist of experts in the following disciplines:
(i) Ecosystem Management
(ii) Air/Water Pollution Control
(iii) Water Resource Management
(iv) Flora/Fauna Conservation and Management
(v) Land Use Planning
(vi) Social Sciences/Rehabilitation
(vii) Project Appraisal
(viii) Ecology
(ix) Environmental Health
(x) Subject Area Specialists
(xi) Representatives of NGOs/Persons concerned with environmental issues.
2. The Chairman will be an outstanding and experienced ecologist or environmentalist or technical professional with wide managerial experience.
3. The representative of IAA will act as Member-Secretary.
4. Chairman and members will serve in their individual capacities except those specifically nominated as representatives.
5. The membership of a committee shall not exceed 15.
Explanatory Note regarding the Impact Assessment Notification dated 27-1-1994
1.-3. ***
4. Public hearing.—Public hearings could be called for in case of projects involving large displacement or having severe environmental ramifications.
5.-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 NOCs from the respective State Pollution Control Boards have been obtained before 27-1-1994, 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 28-11-2001 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 comply with the directions of this Court as contained in the order dated 10-5-1996 as reported in M.C Mehta case (1996) 8 SCC 462.
37. We may also refer to the circular dated 14-5-2002 issued by the Ministry of Environment and Forests noticing that in the past several units had come up in violation of the notification dated 27-1-1994 and a view had been taken earlier that such units were permitted to apply for environment clearance by 31-3-1999. For a period of five years, there was no circular or notification granting any time to apply for EIA (environmental impact assessment) under notification dated 27-1-1994. The period to apply for environment clearance was extended up to 30-6-2001 which deadline was extended up to 31-3-2003, stating that it was to give opportunity to defaulting units to avail of the last and final opportunity to obtain ex post facto environment clearance. The notification dated 27-1-1994 is applicable also to construction activity. It seems that this circular was issued to give opportunity to those who had undertaken constructions after issue of notification without compliance of stipulations therein. We are, however, not concerned in these matters with the construction which may have come up in breach of the notification. It does not appear that MOEF intended to legalise the commencement or continuance of mining activity without compliance of stipulations of the notification. In any case, a statutory notification cannot be notified by issue of circular. Further, if MOEF intended to apply this circular also to mining activity commenced and continued in violation of this notification, it would also show total non-sensitivity of MOEF to the principles of sustainable development and the object behind the issue of notification. The circular has no applicability to the mining activity.
Central Empowered Committee (CEC) — its suggestions
38. The notification dated 27-1-1994 is mandatory. The compliance with the notification before commencement of any mining operation is essential and cannot be dispensed with. MOEF has so far not conducted environment impact assessment in respect of any of the mining leases under the notification dated 27-1-1994.
39. Before the order dated 6-5-2002 was passed, the leaseholders had not made any application before the Ministry for grant of EIA. The applications were filed during the pendency of these matters under the order of this Court. The EIA applications of the leaseholders are lying with the Central Empowered Committee (CEC). CEC was constituted in terms of notification dated 17-9-2002, issued by the Government of India, Ministry of Environment and Forests 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 forests 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 31-10-2002, 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 leaseholders for environmental clearance can be disposed of within a period to be specified by this Court. In terms of order dated 25-11-2002, the Central Empowered Committee was asked to file its suggestions in regard to the time for considering the applications for grant of EIA. CEC had received a large number of voluminous environment impact assessment plans only in the last few days which are being examined further stating that the process of examination and formulation of suggestions is likely to take some more time. On 24-1-2003, CEC was granted time to file its report up to 8-2-2003. CEC has filed three reports, the last having been filed on 7-2-2003.
41. In an interim report dated 22-6-2003 CEC stated that the complete information had not been supplied to it by the State of Haryana. The report states that as per the information provided by Haryana State, in Faridabad district there are 21 sanctioned major mineral mines with the size varying from 44.48 hectares to 516.518 hectares. In Gurgaon district 54 mining leases have been sanctioned varying in size from 5.96 hectares to 802.322 hectares. All the mines of major minerals were operating in Faridabad district without obtaining statutory environmental clearance under the EP Act. It also noticed that in respect of the Aravalli hill range being acknowledged as eco-friendly area under the Aravalli notification, clearances were being granted on the basis of examination of an expert group without any public hearing or participation of NGOs or the affected people. As already noticed, the delegation in favour of the State has been now withdrawn. The report further observes that most of the mines are operating in violation of approved plans. Instead of doing sectionwise mining (bench mining) the mining operations are carried on unscientifically with the sole aim to make maximum profits which has resulted in a number of fatal accidents involving labourers, hazards to the adjoining population, indiscriminate scattering of the overburden, wasteful manner of mining with complete disregard to mineral conservation aspect, rendering reclamation of mined area impossible. Further it points out that several mining leases have been granted in areas where plantations were undertaken with the financial assistance provided by international donor agencies. Mining activities are permitted in a manner which is destroying the groundwater table and also the deep aquifers thereby causing irreparable damage to the critical groundwater reserves. There is no effective mechanism to ensure compliance with 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. CEC has made the following suggestions:
“(i) for major mineral mines above 5 hectares 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 Forests (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 require 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 Sections 4 and 5 of the PLP Act, which for the purpose of the FC Act are ‘forest’ even as per the State Government records, only after obtaining prior approval under the said Act from MOEF;
(iv) all mining leases granted in respect of areas where plantations have been raised under the financial assistance received from any international donor agencies may be cancelled forthwith. The authorities concerned may be prohibited from allowing any mining operations, allowing renewals or grants of fresh leases in such areas;
(v) mining activity may be allowed only as per the approved mining plans. Mines which are found to be operating at variance with the approved mining plans may be made liable for cancellation of lease and payment of exemplary compensation;
(vi) in view of rampant and indiscriminate mining, which was being done, a high-level Monitoring Committee may be constituted comprising representatives of the State Government, MOEF, Indian Bureau of Mines, Director General of Mines Safety and reputed NGOs. This Committee may be empowered to monitor the implementation of the conditions imposed while approving mining plans, grants of environmental clearances and other approvals/clearances. Whenever any violation is detected, the Committee should have the powers to direct closure of the defaulting mines and also to impose fines commensurate with the seriousness of the violation;
(vii) in addition to the above (vi), the officials of the State Government, Indian Bureau of Mines, MOEF, Director General of Mines Safety may independently monitor, at least once in three months, to ensure compliance of all statutory conditions;
(viii) the State Government may identify and notify officials, who would ensure enforcement of the directions given by the Monitoring Committee and/or the abovementioned officials;
(ix) no mining activity may be allowed without obtaining ‘no-objection certificate’ from the Central Ground Water Board to ensure that the water table and the underground aquifers are not adversely affected;
(x) before allowing resumption of mining activity in any approved mining lease, the status of compliance of the conditions of the approved mining plans, approved environmental management plans, environmental clearances and other statutory conditions/clearances may be ascertained. Suitable and adequate compensation/penalty for non-compliance of stipulations may be recovered, otherwise such stipulations would remain only on paper;
(xi) in respect of forest area, including areas notified under Sections 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 IA No. 566 in Writ Petition (Civil) No. 202 of 1995 (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 utilisation of the mineral resources;
(xiv) presently, the overburden is not stacked as per approved mining plan, which makes it practically impossible to carry out any reclamation work. The overburden dumping may be allowed only at identified sites within the mining lease area as per approved mining plans;
(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 manner;
(xvi) the identification of the consultants for preparation of EIAs should be done by the regulating agency instead of by the mine-owners to ensure good and credible reports. It is important that payment to the consultants should also be routed through the regulating agency and not directly by the mine-owners.”
42. The report of CEC dated 7-2-2003 mentions that the State Government, despite letters, had not made available to the Committee the following information:
(i) minewise details of stipulated conditions, which have been fulfilled and those which have not been fulfilled;
(ii) details of five major mineral mines in Faridabad and Gurgaon districts which have fulfilled all the conditions stated in the approved mining plans, environmental and other clearances;
(iii) details of the mines where mining activity has been undertaken without obtaining requisite environmental clearance.
43. In the absence of the information as aforesaid CEC gave its suggestions on the basis of information available to it which are as under:
“(i) the ban on mining activity may continue up to 2 km from Surajkund and Badkal lakes, as per the Hon'ble Court's order dated 10-5-1996 (1996) 8 SCC 462;
(ii) each of the existing mines may be physically inspected by Inspection Team(s) comprising officials of the State Government, Indian Bureau of Mines, Director General of Mines Safety and the Ministry of Environment and Forests to report the specific conditions which have not been fulfilled/violated especially in respect of:
(a) sectionwise (benchwise) mining to be done as per approved mining plan;
(b) storage of topsoil as per approved mining plan;
(c) dumping of overburden in identified area as per the approved mining plan;
(d) plantations as per environmental management plan;
(e) observance of Mines Safety Rules and Regulations;
(f) damage to the plantations raised under externally aided projects (foreign funding);
(g) damage if any to the water table/underground aquifers; and
(h) compliance of environmental clearance stipulations;
The Inspection Team(s) may submit the reports to the State Government and the Ministry of Environment and Forests (MOEF) with copies to the Central Empowered Committee (CEC) for their comments and for carrying out verification, if found necessary.
(iii) suitable penalties for non-compliance/violation of various conditions, as found by the above Inspection Team(s) or by 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 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 foreign assistance/funding (externally aided projects). Mining leases already granted/approved in all such areas may be cancelled;
(v) yearwise 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, personal 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 Court's order dated 12-12-1996 in Writ Petition (C) No. 206 of 1995, and take decision(s) thereon, including regarding measures for protecting the water table and underground aquifers, in a time-bound manner; and
(vii) regular inspection of the mines may be undertaken by the identified officials of the State Government, Indian Bureau of Mines and Director General of Mines Safety. Mines which are found to have violated the conditions may be made liable to pay stiff penalties including closure of the mines.”
44. Some mining leases were granted prior to notification dated 27-1-1994 and some after the issue of that notification. Even in respect of the leases granted prior to 27-1-1994, the renewal of most of the leases has come up after issue of notification. Some of the leases are for extraction of major mineral, some for extraction of minor mineral and some for extraction of both major and minor mineral. In respect of none of the leases, before commencement of mining activity, EIA was obtained from MOEF. In respect of mining in Aravalli hills in Gurgaon, the relevant notifications dated 7-5-1992, 29-11-1999 and 28-1-2003 have been noticed earlier. Under the notification dated 7-5-1992, no permission was granted by MOEF though some applications were pending before it when power was delegated to the State Government. Permissions were granted by the State Government after the powers were delegated to it. The delegation in favour of the State has since been withdrawn.
Legal parameters
45. The natural sources of air, water and soil cannot be utilised if the utilisation results in irreversible damage to environment. There has been accelerated degradation of environment primarily on account 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. (See Subhash Kumar v. State of Bihar (1991) 1 SCC 598, AIR 1991 SC 420.)
46. Further, by the Forty-second Constitutional Amendment, Article 48-A was inserted in the Constitution in Part IV stipulating that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Article 51-A, inter alia, 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 to 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 (1987) 4 SCC 463 this Court held that life, public health and ecology has priority over unemployment and loss of revenue. The definition of “sustainable development” which Brundtland gave more than 3 decades back still holds good. The phrase covers the development that meets the needs of the present without compromising the ability of the future generation to meet their own needs. In Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 this Court observed that sustainable development means the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a “reasonable person's” test. [See Chairman Barton: The Status of the Precautionary Principle in Australia (Vol. 22, 1998, Harv. Envtt. Law Review, p. 509 at p. 549-A) as referred to in para 28 in A.P Pollution Control Board v. Prof. M.V Nayudu (1999) 2 SCC 718.]
47. The mining operation is hazardous in nature. It impairs ecology and people's right to natural resources. The entire process of setting up and functioning of mining operation requires utmost good faith and honesty on the part of the intending entrepreneur. For carrying on any mining activity close to township which has tendency to degrade environment and is likely to affect air, water and soil and impair the quality of life of inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. The fullest disclosures including the potential for increased burdens on the environment consequent upon possible increase in the quantum and degree of pollution, has to be made at the outset so that the public and all those concerned including authorities may decide whether the permission can at all be granted for carrying on mining activity. The regulatory authorities have to act with utmost care in ensuring compliance of safeguards, norms and standards to be observed by such entrepreneurs. When questioned, the regulatory authorities have to show that the said authorities acted in the manner enjoined upon them. Where the regulatory authorities, either connive or act negligently by not taking prompt action to prevent, avoid or control the damage to environment, natural resources and people's life, health and property, the principles of accountability for restoration and compensation have to be applied.
48. Development and the protection of environment are not enemies. If without degrading the environment or minimising adverse effects thereupon by applying stringent safeguards, it is possible to carry on development activity applying the principles of sustainable development, in that eventuality, 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, a series of orders have been passed by this Court in T.N Godavarman case 1991 Supp (2) SCC 665, (1997) 2 SCC 267, (1997) 3 SCC 312, (1997) 5 SCC 760, (1997) 7 SCC 440, (1997) 10 SCC 775, (1998) 2 SCC 59, (1998) 6 SCC 190, (1998) 9 SCC 632, (1999) 5 SCC 736, (1999) 9 SCC 121, (2000) 6 SCC 413, (2000) 10 SCC 494, (2002) 9 SCC 502 regulating the felling of trees in all the forests in the country. Principle 15 of the 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 postponing cost-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 straitjacket. 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 damage to economic interest. In case of doubt, however, protection of environment would have precedence over the economic interest. Precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment.
49. Bearing in mind the aforesaid principles, we have to consider the main question: should the mining activity in the areas in question be banned altogether or permitted and, if so, conditions to be provided therefor? The reports and suggestions of NEERI, EPCA and CEC have already been extensively noted. The effect of mining activity in area up to 5 km from Delhi-Haryana border on Haryana side of the ridge and also in the Aravalli hills is to be seen in the light of these reports and another report dealt with later. One of the aspects stated in these reports is about carrying on of mining activity in close proximity to the residential area and/or main roads carrying traffic.
Mines and Minerals (Regulation and Development) Act and Rules thereunder
50. The grant of mining leases is governed by the Mines and Minerals (Regulation and Development) Act, 1957 (for short “the MMRD Act”) which was enacted to provide for the development and regulation of mines and minerals under the control of the Union. Section 13 is the rule-making power of the Central Government. The Central Government is empowered to make rules to provide for the manner in which rehabilitation of flora and other vegetation, such as trees, shrubs and the like destroyed by reason of any mining operation shall be made in the same area or in any other area selected by the Central Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the mining lease. Section 18, inter alia, casts a duty upon the Central Government to take all such steps as may be necessary for the conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling any pollution which may be caused by mining operations and for such purposes, the Central Government may, by notification in the Official Gazette, make such rules as it thinks fit.
51. The Mineral Concession Rules, 1960 have been framed by the Central Government in exercise of the powers conferred by Section 13 of the MMRD Act. Chapter IV of these Rules relates to grant 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 4-A, inter alia, provides that notwithstanding anything contained in sub-rule (4), the State Government shall be competent to approve mining plans of opencast mines (mines other than underground mines) in respect of new 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, watercourses, limit of reserves and other forest areas and density of trees, if any, assessment of impact of mining activity on forest, land surface and environment including air and water pollution; details of the scheme of restoration of the area by afforestation, land reclamation, use of pollution control devices and such other measures as may be directed by the Central Government or the State Government from time to time. A tentative scheme of mining and annual programme and plan for excavation from year to year for five years is also required to be incorporated in the mining plan. Rule 22(5) was inserted in the Rules by notification dated 27-9-1994 to which certain amendments were made in terms of notification dated 17-1-2000 also inserting by the same notification Rule 22(4-A). Sub-rule (4) to Rule 22 had been earlier inserted by notification dated 27-9-1994.
52. The grant of permission for mining and approving mining plans 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 the Ministry of Mines, the 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 leaseholder is also required to comply with other statutory provisions such as the Environment (Protection) Act, 1986, the Air (Prevention and Control of Pollution) Act, 1981, the Water (Prevention and Control of Pollution) Act, 1974 and the Forest (Conservation) Act, 1980. Mere approval of the mining plan by the Government of India, Ministry of Mines would not absolve the leaseholder from complying with the other provisions.
53. Rules 31 to 41 contained in Chapter V of the Mineral Conservation and Development Rules, 1988 framed under Section 18 of the MMRD Act deal with the measures required to be taken by the lessee for the protection of environment from any adverse effect of mining or irreversible consequences thereof. These Rules, inter alia, provide that every holder of a mining lease shall take all possible precautions for the protection of environment and control of pollution while conducting mining operations in the area (Rule 31); shall, wherever topsoil exists and is to be excavated for mining operations, remove it separately and utilise for restoration or rehabilitation of the land which is no longer required for mining operations [Rule 32(2)]. 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 stabilised through vegetation or otherwise (Rule 33). It is also required that the phased restoration, reclamation and rehabilitation of lands affected by mining operation shall be undertaken which work shall be completed before the conclusion of mining operations and the abandonment of mine (Rule 34). Air pollution due to fines, dust and smoke or gaseous emissions during mining operations and related activities shall be controlled and kept within “permissible limits” specified under various environmental laws of the country including the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 by the holder of mining lease (Rule 37). Further, noise arising out of such operations shall be abated or controlled by the lessee at the source so as to keep it within the permissible limit (Rule 39). The mining operations shall be carried out in such a manner so as to cause least damage to the flora of the area and nearby areas [Rule 41(1)]. Every holder of a mining lease shall take immediate measures for planting in the same area or any other area as selected by the authorised officer not less than twice the number of trees destroyed by reason of any mining operation and look after them during the subsistence of the licence/lease and restore, to the extent possible, other flora destroyed by mining operations [Rule 41(2)(a)].
54. The aforesaid measures are not required to remain only on paper but strictly complied for the protection of environment and control of pollution as a result and consequence of mining operations.
National forest policy
55. In respect of mining in the forest area, we may also refer to the National Forest Policy, 1988 issued by the Ministry of Environment and Forests, Government of India which, inter alia, notices that over the years, forests in the country have suffered serious depletion. One of the reasons for it is inadequacy of protection measures and diversion of forest land to non-forest uses, without ensuring compensatory afforestation and essential environmental safeguards; and the tendency to look upon forests as revenue-earning resource. The basic objectives of the policy, inter alia, are maintenance of environment stability through preservation and, where necessary, restoration of the ecological balance that has been adversely disturbed by serious depletion of the forests of the country and checking the soil erosion and water conservation and increasing substantially the forest/tree cover through massive afforestation and social forestry programmes. It provides that the national goal should be to have a minimum of 1/3rd of the total land area of the country under forest or tree cover. In the hills and in mountainous regions, the aim should be to maintain 2/3rds of the area under such cover in order to prevent erosion and land degradation and to ensure the stability of the fragile ecosystem. It also provides that a massive need-based and 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 utilised 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 and benefits. Mining and industrial development should be consistent with the need for conservation of trees in forests. It provides that no mining should be granted to any party, private or public, without a proper mine management plan appraised from the environmental angle and enforced by adequate machinery.
57. Our attention was drawn by learned counsel appearing for leaseholders to the part of the national policy which provides that beneficiaries who are allowed mining and quarrying in forest land and in land covered by trees should be required to repair and revegetate the area in accordance with established forestry practices to submit that the policy itself contemplates mining operations in the forest area. For the present, we are not suggesting a complete ban on mining operations on forest land so long as it is possible to undertake the said operation on the sustainable development principle and after obtaining due approvals under various statutory provisions including Section 2 of the Forest (Conservation) Act, 1980. At the same time, we are unable to appreciate the commencement and continuation of mining over areas on which crores of foreign funds have been spent for afforestation and plantation. Further, it is also not possible to accept the contention urged on behalf of the leaseholders that only that part of such leased land where allegedly damage has been caused to plantation as a result of mining operations, be excluded from mining and not the entire area of the lease. For example, if the mining area is 5 hectares and damage as a result of mining is to plantation in an area of 1 hectare, it is not practicable or reasonable to exclude only that 1 hectare and permit the mining operation on the rest of the mining area. Reference can also be usefully made to the part of the State Forest Report, 1999 issued by Forest Survey of India in relation to Haryana. It, inter alia, provides that large-scale plantations were carried out under the Aravalli Project since 1992. The document claims increase of the forest cover in the State as a result of plantation under the Aravalli Project. It, inter alia, mentions that forest cover increase in Gurgaon and Faridabad is mainly due to plantation raised under the Aravalli Project which was started in the early 1990s. In these matters, neither the State nor the leaseholders can be permitted to turn round and now take a stand that the areas covered under the Aravalli Project are not forest. The National Forestry Action Programme of December 2000 issued by the Ministry of Environment and Forests of the 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 the Forest Department, Government of Haryana. The project profile, inter alia, states that 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 ecosystem 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 outcomes of the project is the reduced soil erosion and improved water regime in the rehabilitated area which will drastically reduce the run-off leading to recharge of constantly depleting groundwater resources. It records that the Haryana Forest Department has implemented a project on the eco-restoration of common lands in the Aravalli hills, from June 1990 to October 1999. The project is being funded by the Delegation of European Communities. The total cost was 28.8 million ECU in which external assistance was to the extent of 23.2 million ECU.
Aravalli hill range
58. The Aravallis, the most distinctive and ancient mountain chain of peninsular India, mark the site of one of the oldest geological formations in the world. Heavily eroded and with exposed outcrops of slate rock and granite, it has summits reaching 4950 feet above sea level. Due to its geological location, the Aravalli range harbours a mix of Saharan, Ethiopian, peninsular, oriental and even Malayan elements of flora and fauna. In the early part of this century, the Aravallis were well wooded. There were dense forests with waterfalls and one could encounter a large number of wild animals. Today, the changes in the environment at Aravalli are severe. Though one finds a number of tree species in the hills, timber-quality trees have almost disappeared. Despite the increase of population resulting in increase of demand from the forest, it cannot be questioned nor has it been questioned that to save the ecology of the Aravalli mountains, the laws have to be strictly implemented. The notification dated 7-5-1992 was passed with a view to strictly implement the measures to protect the ecology of the Aravalli range. The notification was followed more in its breach.
59. In the aforesaid background, any mining activity on the area under plantation under the Aravalli Project cannot be permitted. The grant of leases for mining operation over such an area would be wholly arbitrary, unreasonable and illogical.
Report of CMPDI on Aravalli
60. The Central Mine Planning and Design Institute Limited (CMPDI) on being asked by the Central Pollution Control Board to conduct a study of environmental problems of Aravalli hills and preparation of action plan for restoration of environmental quality in Gurgaon district, after extensive examination, has submitted to CPCB its final report in July 2003. CMPDI is a subsidiary of Coal India Limited (Government of India enterprise). The report in respect of Aravalli range in Gurgaon district has been prepared by CMPDI with the following objectives:
1. To prepare status report of the pollution problems in the Aravalli hills.
2. To prepare environmental management plan to abate various environmental problems.
3. To prepare action plan for 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 at the 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 land in the district. Though the records of such lands are available in every village-level map, there is no record available at 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 29-11-1999, inter alia, made provision for preparing a master plan integrating the environmental concerns and the future land use of the area, but the master plan prepared on 28-8-2002 does not, inter alia, address the issue of natural resource assessment and water resource status; the areas near crushing zone and active mining zone remain a matter of concern and concerted efforts have not been given to the quality of roads and the dust suppression measures to maintain the air quality within safe limits. The guidelines of operation in an eco-friendly manner have been issued by the State Government but the compliance is only partial, inasmuch as windbreaking walls are not proper, pollution control devices are not operating and the green belts around the crushing zones are not maintained. Identification of mines in the district is difficult. There does not seem to be any mechanism to upgrade the mining technologies and methodologies to minimise the impact due to mining in the eco-sensitive zones in the district. There is no identified land where overburden could be temporarily dumped prior to being utilised for void filling and for other purposes. There does not seem to be adequate awareness among the people in respect of the environmental problems. In some parts of the district, the groundwater potential is already in the dark category. Lack of water conservation measures and rainwater harvesting may ultimately lead to water scarcity in the near future.
62. Having identified the environmental problems, various actions have been recommended by CMPDI for the eco-restoration in the Aravalli range in Gurgaon district. It has been, inter alia, recommended that it is imperative on the part of the State Government to improve interdepartmental coordination among various government departments to achieve the common objective i.e ecological restoration of Aravalli hills in the district. The master plan should indicate the proposed eco-restoration plan to compensate the environmental degradation by the proposed activities in the master plan. Rehabilitation programmes for the abandoned mine areas are either to convert these to water reservoirs and eco-parks or reclamation by filling by rural waste, urban waste or fly ash. The master plan should be detailed to show the areas where overburden could be dumped, areas where waste material could be stocked, areas where plantation could be carried out, 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 groundwater resources. Water-shed management and rainwater harvesting to be implemented in the Aravalli hill regions on a war footing. In the areas where mining deeper than the groundwater table of the area is to be carried out, adequate provision of pollution control and conservation 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 operations to the fund, recommended to be created, for the eco-restoration of the Aravalli hills. The minimum period of lease should be for 15-20 years. This will induce the mine operators to take environmental protection measures more seriously. The State Pollution Control Board shall undertake regular monitoring to check compliance and to assess the ambient air quality, water quality and other environmental protection measures. The Ministry of Environment and Forests should take initiative to appoint a Central agency to monitor the eco-restoration efforts and to provide technical support to the implementing organisations. The renewal of mining lease and granting new leases should be effected after examining the environmental protection measures taken by the lessee. Requisite data should be displayed on the Internet to arouse awareness in the public and for further usage. Stringent action should be taken for water conservation. The Forest Department may even carry out the afforestation on behalf of mine operators. Expenses should, however, be borne by the mine operators. The afforestation shall be carried out keeping in view, inter alia, the consideration of checking soil erosion. The mining lessee should implement the environmental management plan and mining plan approved by the authority concerned. In future, efforts in respect of search for sustainable development should broadly take into consideration resource potential in the region, the demand of the products and the supply options. Though the demand for the niche products existing in the Aravalli range which is one of the oldest mountain ranges in India will continue to grow, the supply options need to be given a closer look due to eco-sensitivity of the region. The environmental cost needs to be internalised in the cost of the product and there is need to limit the supply options. Noticing that the Aravalli range prevents the desert from spreading into the Indo-Gangetic plains, it has been suggested that all future planning should not only concentrate to meet the ever-growing demand of the products but due consideration should also be given to protect the chain. All the developmental activities should, therefore, be planned in a coherent manner and there should be integrated approach for sustainable development.
63. CMPDI has noticed that in the Aravalli hills a large number of activities, operations of stone-crushers and deforestation besides other activities are causing environmental degradation. These mines are usually located in clusters in remote mineral-rich districts/areas where living standards are lower and understanding of people towards environmental 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 the mining community is to ignore the environmental concerns. In the 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 mines of granite, marble, slate, quartzite etc. (falling under minor minerals) are no less damaging than the others, especially when the processing is taken into consideration. The mining activities result in disturbance of land surface, altering drainage pattern and land use, besides 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 and government agencies for enforcement of the environmental laws for the restoration of environmental quality of the area. Monitoring programme shall include frequency of monitoring for air quality, water quality, groundwater, solid wastes, noise level etc.
65. In respect of water resources, it has been, inter alia, suggested that in order to draw water resource management plan, it is essential to assess the water quality of the various components of the hydrologic cycle i.e stream, groundwater, surface water etc. It has been pointed out that since the surface water potential is not promising in the district, there is increased dependence on the groundwater for meeting the agricultural, domestic and industrial requirement resulting in depletion of groundwater resources in the district. It has been suggested that utmost care is required for further development of groundwater in the areas where the recharge of the groundwater is low.
66. Dealing with the flora and fauna, it has been pointed out that the earliest account shows that at one time the Aravalli hills were well covered with dhauk (Anogeissus pendula). Now, except in a few places viz. Jhir Forest in Firozpur Jhirka (dedicated to Mahadeo Temple) and near Bhondsi recently regenerated with dhauk, the Aravallis are by and large, bereft of vegetation in the district.
67. It has been noticed that in order to take stock of the environmental problems, CPCB and CMPDI team made several visits to Aravalli hills and held discussion with the mine operators, State officials and local people. There are a number of mining projects etc. which are already existing and there is also tremendous potential to further increase industrial and other development activities. The environmental impact due to mining projects on air quality, water quality, noise level, overburden etc. has been noticed and it has been pointed out that the opening of new projects will further affect some of the environmental attributes.
68. The report notices that the environmental degradation has taken place due to mining activities. The existing crusher units are also not functioning on the environmental sound systems. The situation warrants closer look on various components of the systems affecting the environmental attributes in the area, devising pragmatic approaches to facilitate eco-restoration of the Aravalli hills and 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 a 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 study, the recommendations and action plan has been dealt with in Chapter VIII of the report, inter alia, suggesting that concerted efforts from various departments are needed. The report states that though the environmental upgradation measures need to be taken more seriously by the mine and other industrial operators, there is need on the part of the State Government to immediately start these measures in the areas where degradation has already taken place. The other recommendations have already been broadly noticed.
70. No one has raised any objection to the recommendations contained in the report of CMPDI. We accept the recommendations in principle.
Modification of order dated 6-5-2002regarding mining in Aravalli
71. Now, the question is should mining activities in the Aravalli range in Gurgaon district be permitted to restart and, to that extent, the order dated 6-5-2002‡ be modified, meanwhile directing implementation of recommendations in the report of CMPDI and earlier-referred reports. The other option is to first constitute a Monitoring Committee directing it to individually examine and inspect mines from the environmental angle in the light of the said recommendations and file a report in this Court in respect of individual mines with its recommendations for restart or otherwise as also recommendation, if any, for the payment by the mine operators and/or by the State Government towards environmental fund having regard to the precautionary principle and polluter-pays principle and on consideration of that report, to decide the aspect of modification of the order dated 6-5-2002‡, partially or entirely. We are of the view that the second option is more appropriate. We are conscious of observations in CMPDI that measures for protecting the environment can be undertaken without stopping mine operations and also the suggestions of MOEF to permit mining subject to the mine leaseholders undertaking to comply with such conditions which remain to be complied, but, having regard to the enormous degradation of the environment, in our view, the safer and the proper course is to first constitute a Monitoring Committee, get a report from it and only thereafter consider, on individual mine-to-mine basis, lifting of ban imposed in terms of order dated 6-5-2002‡. Before concluding this aspect, we may note that assuming there was any ambiguity about the applicability of order dated 6-5-2002‡ to mining in Aravalli range, it is clarified that the said order would be applicable to all the mines in Aravalli hill range in Gurgaon district.
Applicability of notification dated 27-1-1994
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 the Official Gazette expansion or modernisation of any activity (if pollution load is to exceed the existing one) or a new project listed in Schedule I 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 leaseholders is that the leases in question do not relate to expansion or modernisation 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 apply to mining lease granted after issue of notification. It has been strenuously contended that the renewal of existing mining lease is neither “an expansion” nor “modernisation” nor is it a “new project” and, therefore, the notification will have no applicability at the time of consideration of the renewal of the lease. Reliance has been placed on a decision of this Court in Narmada case (2000) 10 SCC 664 holding that the notification is clearly prospective and, inter alia, prohibits the undertaking of a new project listed in Schedule I without prior environmental clearance from the Central Government. The contention urged was that since in Narmada case (2000) 10 SCC 664, where construction had commenced nearly 8 years prior to the notification, the very same notification was not held applicable. On the same analogy, it cannot have any applicability to the leases granted prior to the issue of notification.
73. No doubt, the notification is prospective but the question here is whether it would be applicable when the aspect of renewal comes up for consideration after the issue of the notification. In Narmada case (2000) 10 SCC 664, it was not held that this notification will not apply at the stage of renewal. The observations made in para 129 of the said decision and relied upon by learned counsel for the leaseholders have no relevance to determine the applicability of the notification at the stage of renewal. In Narmada case (2000) 10 SCC 664, the environmental clearance had been granted in the year 1987 and this Court noticing that when it was granted by the Prime Minister, whatever studies were available were taken into consideration, it was known that the construction of the dam would result in submergence and the consequent effect which the reservoir will have on the ecology of the surrounding areas and various studies relating to environmental impact had been taken into consideration and that there was no obligation to obtain the statutory clearance under the 1994 notification.
74. In the present case, regarding the manner of grant of no-objection certificate from environmental angle for proposed mining activity, by way of illustration, we may refer to the order dated 18-1-1999 issued by the Haryana State Pollution Control Board whereby no-objection certificate for renewal of lease was granted stipulating that the applicant Som Prakash Sethi in respect of mining activity at Village Anangpur, District Faridabad shall also be 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 had been complied or not. Further the letter dated 25-1-2003, sent to the Principal Secretary of Central Empowered Committee by the 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 10-5-1996 (1996) 8 SCC 462 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 the legal position, in Ambica Quarry Works v. State of Gujarat (1987) 1 SCC 213 though a case under the Forest (Conservation) Act, 1980 rejecting the contention that approval at the stage of renewal was not necessary and also the plea that since the leaseholders had invested sums of money in mining operation, it was the duty of the authorities to renew the lease, it was held that having regard to the awareness that deforestation and ecological imbalances as a result of deforestation have become social menaces and the same should be prevented, and that the concept that power coupled with the duty enjoined upon the respondents to renew the lease stood eroded by the mandate of the FC Act. It was held that the primary duty was to the community, and that duty took precedence. In such cases, the obligation to the society must predominate over the obligation to the individuals. It would be apposite to reproduce what was said by Justice Mukherjee (as he then was) in paras 14 and 15 which read thus:
“14. Here the case of the appellants is that they have invested large sums of money in mining operations. Therefore, it was the duty of the authorities that the power of granting permission should have been so exercised that the appellants had the full benefits of their investments. It was emphasised that none of the appellants had committed any breach of the terms of grant nor were there any other factors disentitling them to such renewal. While there was power to grant renewal and in these cases there were clauses permitting renewals, it might have cast a duty to grant such renewal in the facts and circumstances of the cases specially in view of the investments made by the appellants in the areas covered by the quarrying leases, but renewals cannot be claimed as a matter of right for the following reasons.
15. The rules dealt with a situation prior to the coming into operation of 1980 Act. ‘1980 Act’ was an Act in recognition of the awareness that deforestation and ecological imbalances as a result of deforestation have become social menaces and further deforestation and ecological imbalances should be prevented. That was the primary purpose writ large in the Act of 1980. Therefore the concept that power coupled with the duty enjoined upon the respondents to renew the lease stands eroded by the mandate of the legislation as manifest in 1980 Act in the facts and circumstances of these cases. The primary duty was to the community and that duty took precedence, in our opinion, in these cases. The obligation to the society must predominate over the obligation to the individuals.”
(emphasis in original)
76. In Rural Litigation and Entitlement Kendra v. State of U.P 1989 Supp (1) SCC 504 agreeing with views expressed in Ambica Quarry Works (1987) 1 SCC 213 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 the lessee's option, the requirement of the Act had to be satisfied before such renewal could be granted. In State of M.P v. Krishnadas Tikaram 1995 Supp (1) SCC 587 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 27-1-1994 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 accorded. The clearance under the notification is valid for a period of five years. In none of the leases the requirements of the notification were complied with either at the stage of initial grant of the mining lease or at the stage of renewal. Some of the leases were fresh leases granted after issue of the notification. Some were cases of renewal. No mining operation can commence without obtaining environmental impact assessment in terms of the notification.
The applicability of the Forest (Conservation) Act, 1980 to areas treated as forest by the State Forest Department
78. The provisions of the Act provide for the conservation of forest and for matters connected therewith or ancillary or incidental thereto. Any forest land or portion thereof cannot be used for any non-forest purposes or assigned by way of leases or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by the Government, except with the prior approval of the Central Government. Mining activity within forest area cannot be permitted in contravention of the provisions of the Act. The Act makes the contravention of any of the provisions of Section 2 as an offence punishable in the manner provided in the Act.
79. The controversy is in respect of certain leases where area under the lease is covered under notification issued under Sections 4 and/or 5 of the Punjab Land Preservation Act, 1900. The question is whether such area is “forest” of any kind.
80. Under Section 3 of the aforesaid Act, whenever it appears to the State Government that it is desirable to provide for the conservation of subsoil 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. Under Section 4(b), the State Government has power to regulate, restrict or prohibit the 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. Under Section 5(b) in respect of any specified village or villages, or part or parts thereof, comprised within the limits of any area notified under Section 3, the State Government may, by special order, temporarily regulate, restrict or prohibit the quarrying of any stone or the burning of any lime 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 subsoil 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 viewpoint of the 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 Sections 4 and/or 5 of the Act. Not only in their record has the area been shown as forest but affidavits have been filed in this Court stating the area to be “forest”. In T.N Godavarman Thirumulkpad v. Union of India (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 records, irrespective of ownership, would be a forest. The State of Haryana, besides having filed affidavits in the forest matters treating such areas as forest for the purposes of the FC Act has been seeking prior approval from the Central Government for diversion of such land for non-forestry purpose. Reference in this connection may also be made to the affidavit dated 8-12-1996 filed by Banarsi Das, Principal Chief Conservator of Forests, Chandigarh, Haryana in Environmental Awareness Forum v. State of J&K Civil Writ No. 171 of 1996. Our attention has also been drawn to letter dated 26-11-2002 addressed by the Divisional Forest Officer, Faridabad to the Mining Officer, Faridabad forwarding to him a list of blocked forest areas of Faridabad district and requesting him to ensure that the said forest areas are not affected by any mining operations as also to a letter dated 17-9-2001 sent by the Principal Chief Conservator of Forests, Haryana (Panchkula) to the 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 complete somersault 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.
83. We may also note that assuming that there was any confusion or erroneous impression, it ought to have been first sorted out at the appropriate level and where affidavits had been filed in this Court, clarifications/orders sought before issue of the mining lease in respect of such area.
Impact of mining on groundwater
84. Where during mining water level is touched, the Monitoring Committee shall carve out that area and it was agreed on behalf of the leaseholders that they would cooperate 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 6-5-2002 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. A dispute of this nature cannot be properly adjudicated in these proceedings. We leave it open to be adjudicated before an appropriate forum in accordance with law.
Leases in respect of minor mineral
86. Though notification dated 27-1-1994 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 Monitoring Committee to examine the leases granted for extraction of minor mineral in light thereof and file its report. The Committee would, however, bear in mind that the notification dated 27-1-1994 as such is not applicable to these leases.
Mining in Faridabad district
87. Having examined the matter, we are of the view that though the study conducted by CMPDI relates to mining activity in Aravalli hills in Gurgaon district, in public interest the general safeguards and suggestions in that report deserve to be implemented in respect of mining in Faridabad district as well.
88. We have already extracted the recommendations of NEERI, as also violations noticed in the reports submitted by EPCA and the suggestions of EPCA, CEC and CMPDI. The Monitoring Committee shall inspect the leases in question in Faridabad district as well in the light of these recommendations and file its report containing suggestions on recommencement or otherwise of the mining activity therein.
89. It may be reiterated that if, despite stringent conditions, the degradation of environment continues and reaches a stage of no-return, this Court may have to consider, at a later date, the closure of mining activity in areas where there is such a risk.
90. As earlier noticed as well, it would not be expedient to lift the ban on mining imposed in terms of the order of this Court dated 6-5-2002 before ensuring implementation of suggestions of CMPDI and other recommendations of experts (NEERI, EPCA and CEC). The safer course is to consider this question on individual basis after receipt of report of the Monitoring Committee.
Environment impact assessment applications
91. During the course of hearing environment assessment applications in terms of notification dated 27-1-1994 have been filed by some of the leaseholders. In case those applications are presently with the Central Empowered Committee, the same shall be forthwith forwarded by CEC to MOEF. The adverse effect, if any, and extent thereof on human health and ecology shall be examined while deciding impact of these activities. There is also the desirability of transparency in such matter. MOEF is directed to consider the said applications within a period of ten weeks.
Monitoring Committee
92. With a view to monitor the overall eco-restoration efforts in the Aravalli hills and to provide technical support to the implementing organisations 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 and 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 the Central Ground Water Board to be a member of the Monitoring Committee. The following persons as representatives of the 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. 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 months, inter alia, containing suggestions for recommencement of mining in individual cases. All individuals and departments concerned are directed to render full cooperation to the Monitoring Committee.
Conclusions
96. 1. The order dated 6-5-2002 as clarified hereinbefore cannot be vacated or varied before consideration of the report of the Monitoring Committee constituted by this judgment.
2. The notification of environment assessment clearance dated 27-1-1994 is applicable also when renewal of mining lease is considered after issue of the notification.
3. On the facts of the case, the mining activity in areas covered under Sections 4 and/or 5 of the Punjab Land Preservation Act, 1900 cannot be undertaken without approval under the Forest (Conservation) Act, 1980.
4. No mining activity can be carried out on area over which plantation has been undertaken under the Aravalli Project by utilisation of foreign funds.
5. The mining activity can be permitted only on the basis of sustainable development and on compliance of stringent conditions.
6. The Aravalli hill range has to be protected at any cost. In case despite stringent conditions, there is an adverse irreversible effect on the ecology in the Aravalli hill range area, at a later date, the total stoppage of mining activity in the area may have to be considered. For similar reasons such step may have to be considered in respect of mining in Faridabad district as well.
7. MOEF is directed to prepare a short-term and long-term action plan for the restoration of environmental quality of Aravalli hills in Gurgaon district having regard to what is stated in final report of CMPDI within four months.
8. Violation of any of the conditions would entail the risk of cancellation of mining lease. The mining activity shall continue only on strict compliance of the stipulated conditions.
97. The matters are directed to be listed after reopening of courts after summer vacation on receipt of the report from the Monitoring Committee.
Comments