S.H Kapadia, J.— Has the situation (optimisation of land and ecological degradation in an area admeasuring approximately 448 sq km in the Aravalli hill range falling in the districts of Faridabad and Gurgaon, including Mewat) predicted in para 89 of the judgment in M.C Mehta case (2004) 12 SCC 118 come about so as to warrant total stoppage of mining activity as stated in para 96(6) of the said judgment; and if so, what should be the duration of such ban/stoppage?
2. In this connection, at the very outset, we quote paras 89 and 96(6) of the said judgment, which read as follows:
“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.
96. (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.”
History of the relevant orders passed by this Court
3. (i) On 6-5-2002 (2004) 12 SCC 188 the following order was passed:
“IA No. 1785
2. Issue notice. Mr Bharat Singh accepts. Reply be filed within four weeks. Rejoinder be filed within four weeks thereafter. In the meantime, within 48 hours from today the Chief Secretary, Government of Haryana is directed to stop all 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 hills.”
(emphasis supplied)
(ii) On 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81 the following order was passed:
“Illegal mining in Aravallis
… We, prohibit and ban all mining activity in the entire Aravalli hills. This ban is not limited only to the hills encircling Kote and Alampur Villages but extends to the entire hill range of Aravalli from Dholpur to Rajasthan. The Chief Secretary, State of Haryana and Chief Secretary, State of Rajasthan are directed to ensure that no mining activity in the Aravalli hills is carried out, especially, in that part which has been regarded as forest area or protected under the Environment (Protection) Act.”
(emphasis supplied)
(iii) On 31-10-2002 (2004) 12 SCC 185 the following order was passed:
“IA No. 1785 in IA No. 22 and in WP No. 4677 of 1985, all IAs and WPs on board
3. It is represented that applications have been filed with regard to environment impact assessment, and for approval of plans with regard to the mining activity which was proposed by the applicants/leaseholders. The said applications have to be dealt with in terms of the Notification dated 27-1-1994 of the Ministry of Environment and Forests. The said notification relates to environment impact assessment of development projects. It appears that environment clearance has not been obtained and the learned counsel submits that the applicants/leaseholders cannot be faulted for this.
4. It is quite obvious that on the principle of sustainable development, no mining activity can be carried out without remedial measures taking place. For this purpose, it is necessary that environment impact assessment is done and the applications dealt with before any mining activity can be permitted.
5. Counsel will give on the next date of hearing list of applications which were filed, so that the Ministry of Environment can be put to notice and be required to deal with those applications and to dispose of them within a period to be specified by this Court.
6. Liberty to file additional affidavits given.
7. The State of Haryana will also explain on the next date of hearing as to whether royalty payable to the villages has been given or not.
8. To come up on 25-11-2002 (2004) 12 SCC 186.”
(iv) On 16-12-2002 (2008) 16 SCC 401, (2003) 1 Scale 4 the following order was passed:
“IAs Nos. 828, 833-835, 837-40, 846-47
One of the aforesaid applications has been filed by the State of Rajasthan seeking modification or clarification to the effect that the order dated 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81 would be applicable only to illegal mines in the Aravalli hills. IA No. 840 has been filed by M/s Gurgaon Sohna Mineral and another seeking similar relief. Applications have also been filed by the State of Haryana and other parties.
We have heard learned counsel. On 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81 this Court prohibited and banned the mining activities in the entire Aravalli hills. This ban, it was directed, is not limited only to the hills encircling Kote and Alampur Villages but extends to the entire hill range of Aravalli from Haryana to Rajasthan. The Chief Secretary, State of Haryana and State of Rajasthan were directed to ensure that no mining activity in the Aravalli hills is carried out, especially in that part which has been regarded as forest area or protected under the Environment (Protection) Act.
On consideration of the report of the Central Empowered Committee dated 14-12-2002, we issue the following further directions:
(1) Mining may be permitted in forest areas where specific prior approval under Section 2 of the Forest (Conservation) Act, 1980 has been accorded by the Ministry of Environment and Forest, Government of India. However, in view of this Court's order dated 14-2-2000 passed in IA No. 548 no mining activity is permitted within areas which are notified as sanctuary, national park under Sections 18, 35 of the Wild Life (Protection) Act, 1972 or any sanctuary, national park or game reserve declared under any other Act or the Rules made thereunder even if prior approval have been obtained from the MoEF under the FC Act in such an area.
(2) Under the Notification dated 29-11-1999 issued under Section 23 of the Environment (Protection) Act for certain districts including Gurgaon District in the State of Haryana, the Ministry has delegated power to grant approval for mining purposes to the State. The mining activities are being regulated under the Notification dated 7-5-1992 issued by the Ministry of Environment and Forest (Annexure A-1 in IA No. 833). We direct that, for the time being, no mining shall be permitted within the areas of Gurgaon District in the State of Haryana where mining is regulated under the Notification dated 7-5-1992 issued under Section 3 of the Environment (Protection) Act, pursuant to the permission granted after 29-11-1999.
Meanwhile, the Central Empowered Committee which is examining the matter will give its suggestions within a period of six weeks. On the receipt of those suggestions, the prayers made by the applicants for modification of the order dated 29-10-2002/30-10-2002 insofar as Gurgaon District is concerned will be considered.
(3) No mining activity would be permitted in respect of areas where there is a dispute of applicability of the FC Act, till such time the dispute is resolved or approval under the FC Act is accorded, in addition to order already passed in Writ Petition No. 4677 of 1985.
For the present, no mining will be permitted in the areas for which notification under Sections 4 and 5 of the Punjab Land Preservation Act, 1900 have been issued for regulating the breaking up of the land, etc. and such lands are or were recorded as ‘forest’ in government records even if the notification period has expired, unless there is approval under the FC Act.
Learned Attorney General and Solicitor General will assist the Court on the aforesaid aspects on the next date of hearing.
In respect of Suggestions 7 and 8, the Union of India will respond on the next date of hearing.
The order dated 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81, prohibiting and banning the mining activity in Aravalli hills from Haryana to Rajasthan is modified insofar as the State of Rajasthan is concerned to the following effect:
Wherever requisite approval/sanctions in the said State have been obtained under the FC Act and the EP Act, and the mining is not prohibited under the applicable Acts or notifications or orders of the Court, mining can continue and to such mining the order aforesaid will not apply.
This order will be applicable to non-forest land covered for the period prior to the date of modification of the order dated 29-11-1999 in the State of Haryana.
This variation will not apply to the area in Alampur District in the State of Haryana.
List the matter on 7-2-2003 at 2 o'clock.”
(emphasis supplied)
I. Reasons behind the order dated 29-10-2002/30-10-20023 imposing total ban
4. The question to be answered at the outset is why did this Court impose a complete ban on mining in the Aravalli range falling in the State of Haryana which broadly falls in District Gurgaon and District Faridabad, including Mewat?
5. The statistical data placed before this Court indicated that, in October 2002 twenty-six mines were inspected which indicated wide-scale non-compliance with statutory rules and regulations applicable to mines. Broadly stated, most of these mines failed to obtain environmental clearances. Most of these mines failed to submit the environmental management plan. In some cases, the status of mining indicated below groundwater table. Mining pits were turned into huge groundwater lakes. No efforts were made to create plantation. Broadly, these were silica sand mines. In some cases, even groundwater stood extracted. Deep mining pits with large water bodies were detected. Huge amounts of overburden were also seen in the area. These are some of the defects which were highlighted by EPCA in various reports as far back as October 2002. These non-compliances have also been highlighted with the names of the mines meticulously in para 18 of the judgment in M.C Mehta (2004) 12 SCC 118.
6. It is important to note that by the Notification dated 7-5-1992 issued by MoEF under Section 3(2)(v) of the Environment (Protection) Act, 1986 (“the EP Act”, for short), as amended, all new mining operations including renewal leases stood banned. The notification further laid down the procedure for taking prior permission before undertaking mining activity.
7. At this stage it may be noted that by the Notification dated 27-1-1994 as amended on 4-5-1994 issued by MoEF under Section 3(2) of the EP Act, 1986 read with Rule 6, environment impact assessment (EIA) before commencement of any mining operation became mandatory. Therefore, by order dated 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81, when this Court found large-scale mining without approved plans, it decided to ban all mining activities in the Aravalli range.
II. Fall-out of the order dated 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81
8. After the order dated 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81, IAs were moved saying that applications have been filed for the EIA and for approval of plans and it is at this stage that this Court ordered that no mining activity could be carried out without remedial measures being taken and for that purpose, it was necessary that EIA had to be done before any mining activity could be permitted. (See M.C Mehta v. Union of India, SCC at p. 185.)
9. At this stage, one event needs to be highlighted. The powers vested in the Central Government in terms of the Notification dated 7-5-1992 were delegated to the State Governments concerned, namely, Rajasthan and Haryana, vide Notification dated 29-11-1999. But the delegation in favour of the States stood withdrawn when it was found that most of the mines in the States were operating in violation of the approved plans. In most cases, mining operations were carried out unscientifically with the sole aim of maximising profits which resulted in indiscriminate scattering of the overburden, wasteful manner of mining with complete disregard to mineral conservation aspect, rendering reclamation of the mined area impossible. This Court further found that mining leases were granted by the State in areas where plantations were undertaken with the financial assistance provided by the international donor agencies. That, mining was permitted in a manner which was destroying the groundwater table as also causing irreparable damage to the critical groundwater reserves. That, there was no effective mechanism to ensure compliance with various conditions stipulated while giving approvals and, lastly, no deterrent action was taken against the mines for serious violations and non-compliance with conditions were found.
III. Consequences of continuous violation of the Rules
10. As stated above, the Notification dated 7-5-1992 was passed with a view to strictly implement the measures to protect the ecology of the Aravalli range. It was followed more in its breach.
11. 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. Due to its geological location, desertification is stopped and it prevents expansion of the desert into Delhi. On account of extensive mining on a disproportionate scale, without taking remedial measures has resulted in irreversible changes in the environment at Aravallis. It is in the aforestated background that any mining activity came to be banned under the order dated 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81.
12. Even as far back as 2002, the environmental problems in the Aravalli range in Gurgaon District came to be identified. Remedial measures including pollution control guidelines and action plan for various stakeholders came to be suggested by Cmpdi. Though guidelines for mining operations came to be issued by the State Government, the compliance was not there. Moreover, there was no mechanism to upgrade the mining technologies to minimise the impact due to mining in the eco-sensitive zones.
13. Cmpdi also noticed that in the Aravalli hills a large number of activities, operations of stone-crushers and deforestation had caused environmental degradation even in 2002 which is clear from para 63 of the above judgment in M.C Mehta case (2004) 12 SCC 118 and the tragedy is that despite all warnings, the mines continued their operations without any environment management plan. That, right from 18-3-2004, when this Court pronounced the judgment in M.C Mehta case (2004) 12 SCC 118, till date, a number of reports came to be submitted as the Court tried to balance mining activity on the one hand with protection of environment on the other hand. In fact, in para 57 of the said judgment, this Court stated that so long as it is possible to undertake mining operations on the sustainable development principle, the Court should not impose complete ban on mining as it generates revenue for the State. However, vide para 89, a warning was given that if despite imposition of stringent conditions, the degradation of environment continues and reaches a stage of no return, then this Court may have to consider at a later date the closure of mining activity. This prediction has come true. The consequence is that the State now has decided to close the mining activity.
14. Para 89 is also important from another angle. The judgment in M.C Mehta case (2004) 12 SCC 118 has left it to this Court to consider at a later date the closure of mining activity. Even in para 96(6), this Court observed that mining activity can be permitted only on the basis of sustainable development and on compliance with stringent conditions as the Aravalli hill range has to be protected at any cost and in case despite stringent conditions, mining results in an irreversible consequence on the ecology in the said area then at a later date the total stoppage of mining activity may have to be considered. In other words, in the judgment of this Court in M.C Mehta case (2004) 12 SCC 118 a window was left open for this Court to impose a complete ban on mining operations if an emergent situation arises.
15. The decision to ban/suspend mining in the above area has been taken by the State of Haryana (see minutes of the meeting dated 7-1-2009 annexed as Exhibit R-4 to the second report dated 15-1-2009 of CEC). In the said meeting held on 7-1-2009, a consensus has been reached between CEC and the State of Haryana to declare the entire Aravalli hill range falling in the districts of Faridabad and Gurgaon, including Mewat as a “Prohibited Zone” so far as mining of major minerals is concerned. The decision of the State of Haryana is also supported by MoEF, as submitted by Shri Parag Tripathi, learned Additional Solicitor General.
IV. Breach of relevant rules and consequences thereof
(a) Mining projects
16. Nature has endowed India with a wide variety of temperate and tropical forests. The earth has not only provided ridges, fauna and flora to India but immense mineral treasures with great potential for economic exploitation. At the same time, our economy is facing problems on account of rising population, indiscriminate industrialisation, unsustainable exploitation of natural resources, etc.
17. Mining sector is regulated by a large number of environment and forest statutes. The Water (Prevention and Control of Pollution) Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 were enacted to implement the decisions taken in the United Nations Conference on Human Environment in 1972 at Stockholm. These environment and forests statutes interact with Mining Regulations under the Mines and Minerals (Development and Regulation) Act, 1957; the Mineral Concession Rules, 1960 and the Mineral Conservation and Development Rules, 1988.
18. On account of depletion of the forest cover, we have the Forest (Conservation) Act, 1980, which was enacted to regulate the diversion of forest area for non-forest purposes. Similarly, under the EP Act, 1986 we have several notifications, including the Environment Impact Assessment Notification, 1994. At the same time, mining comes under the purview of a large number of mining statutes which are required to be implemented inter alia by the State Forest Departments, State Pollution Control Boards, Forest Advisory Committee(s), MoEF, etc. The grant of mining leases (major and minor minerals both, including quarry leases, quarry permits, short-term permits, etc.) inside forest areas coming under the purview of Section 2(ii) of the Forest (Conservation) Act, 1980. It applies to mining leases.
19. It is important to note that in order to operate mining inside the forest area, the lessee is required to possess clearances under the Mines and Minerals (Development and Regulation) Act, 1957 (the 1957 Act); under Section 2(ii) of the Forest (Conservation) Act, 1980; and environment clearance under the EIA Notification which applies to mining of major minerals and to the areas exceeding 5 hectares. In case of mining projects, a site clearance is also required which is issued either by the Central Government or the State Government depending upon the area of land let out on lease. Further, Section 2(ii) of the Forest (Conservation) Act, 1980 prohibits grant or renewal of mining lease without prior approval of the Central Government.
(b) Mining plan
20. Mining plan is prepared with the object of providing a systematic working of mine after considering every aspect of the background information, plant, machinery, method of working, object of mining, mining operations and reclamation of mined-out areas. It is a mandatory document comprising information about leasehold area showing nature and extent of the mineral body, prospecting data, details of geology, including mineral reserves, method of mining, manual mining, mechanised mining, nature and extent of water bodies, forest areas, density of the trees, protective areas, environment impact assessment of mining activity on forests, land surface, details of ecological restoration of area, land reclamation, use of pollution control devices and plans for excavation from year to year for five years and such matters and measures as may be directed by the Central Government or the State Government (see Handbook of Environment & Forest Legislations, Guidelines and Procedures in India by Ravindra N. Saxena and Sangita Saxena at p. 1529). The concept of mining plan applies to cases of mining of major minerals.
(c) Environmental management plan
21. Rule 22(5) of the Mineral Concession Rules, 1960 provides for various components of a mining plan. Every mining plan has to indicate limits of reserves, density of trees, assessment of impact of mining activity on forests, land surface and scheme for restoration of the area by afforestation, land reclamation and such other measures as may be directed by the Central Government from time to time. The mining plan includes an environmental management plan which must indicate the area degraded due to quarrying, dumping, etc., a statement on environment impact assessment giving details of the impact of mining on environment over a period of next 5 years, details regarding abandoned quarries/pits, measures to control erosion of watercourses, treatment and disposal of water from the mines and reclamation of mined-out areas (see Handbook of Environment & Forest Legislations, Guidelines and Procedures in India by Ravindra N. Saxena and Sangita Saxena at pp. 1544-46).
(d) Breaches
22. As stated above, as far back as 18-3-2004 this Court noticed that in large number of cases no requisite clearances for mining operations were obtained. No environmental management plan was prepared. In some cases, mining operations were carried out below groundwater table. Groundwater was even extracted without obtaining clearances (see M.C Mehta case (2004) 12 SCC 118). The paradox is that there is no dearth of enactments, the problem lies in non-compliance and as a result, mining on extensive scale without approved plans and without taking remedial measures has led to land and ecological degradation.
23. At this stage, one point needs to be highlighted. Over the years, the focus was on individual mining leases. Over the years, this Court tried to balance mining operations vis-à-vis environmental protection. Even after noticing non-compliance with the above Rules, as far back as 2004, this Court, after sounding a warning to the existing mines to comply with the Rules, did not suggest a complete ban on mining operations so long as it was possible to undertake such operations on the principles of sustainable development. However, the position did not improve. The position worsened. In the circumstances, the Court has now decided not to focus only on individual sites but to take a macro view of the matter, particularly while deciding the question of suspending mining operations. The Court is required to take a holistic view.
24. It is important to note that most of the applicants who are seeking to mine today in the virgin areas have mined-out areas in the past without taking remedial measures. They have abandoned the sites after mining without rehabilitation of the degraded lands and the consequence is devastation.
25. As stated above, in 2004 this Court detected many cases where operations were done without proper environment management plan, mining plan, etc. In this order we are not examining faults of individual user agencies. Suffice it to state that when these mines operated without proper clearances in the past they have left pits/quarries without reclamation and without compliance with the provisions of the mining plan. Today, it is too late in the day to say that leases granted subsequently complied with various clearances because these lessees which operated mines earlier have left the pits/quarries open to the sky without taking remedial measures including reclamation.
26. In this order what we are emphasising is extensive mining and not individual unauthorised mining because even in the case of former no steps to rehabilitate were ever taken. The result is that mining operations have been carried out on a disproportionate scale in the Aravalli hills mainly in Gurgaon and Faridabad, including Mewat in the State of Haryana. The satellite images indicate the devastation caused to the area by the extensive mining operations. Extraordinary situations demands extraordinary remedies. In the circumstances, we are of the view that mining operations should be immediately suspended in the above area.
V. Net effect of the orders passed by this Court earlier on 6-5-20022, 29-10-2002/30-10-20023, 16-12-20026, 13-4-20067 and in M.C Mehta case1
27. One of the points argued on behalf of the lessees before us was that on 6-5-2002 (2004) 12 SCC 188 this Court directed the State of Haryana to stop all mining operations in and around an area up to 5 km from the Delhi-Haryana border on the Haryana side of the ridge and in Aravalli hills. That, after considering the second monitoring report of CEC dated 28-10-2002 a complete ban was imposed on mining in the Aravalli hills vide order dated 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81, which stood modified and clarified on 16-12-2002 (2008) 16 SCC 401, (2003) 1 Scale 4.
28. According to the lessees, after the order dated 16-12-2002 (2008) 16 SCC 401, (2003) 1 Scale 4 there was no prohibition on mining. According to the lessees despite wide-scale degradation being noticed by this Court in M.C Mehta case (2004) 12 SCC 118 this Court did not impose a complete ban on mining operations but, on the contrary, this Court issued guidelines vide para 96 of the said judgment. It was argued that in the circumstances this Court cannot go behind the judgment and order in M.C Mehta case (2004) 12 SCC 118.
29. We find no merit in this argument. To decide this point, we quote hereinbelow para 8 of the order in M.C Mehta v. Union of India (2006) 11 SCC 582 at para 5:
“8. We have examined the orders dated 6-5-2002 (2004) 12 SCC 188, 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81, 16-12-2002 (2008) 16 SCC 401, (2003) 1 Scale 4, the judgment dated 18-3-2004 in M.C Mehta (2004) 12 SCC 118 and affidavits placed on record. It seems clear that the order dated 6-5-2002 (2004) 12 SCC 188 was confined to the limit of 5 km and did not prohibit mining in the entire Aravalli hills in the State of Haryana. The mining in the entire Aravalli hills was prohibited and banned by the order dated 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81. This order was, however, modified and clarified on 16-12-2002 (2008) 16 SCC 401, (2003) 1 Scale 4.”
We also quote para 96 of the judgment in M.C Mehta case (2004) 12 SCC 118 which reads as follows:
(a) no mining can be carried out where the mine owners have reached the water-table. (In fact this Court recorded in para 84 the undertaking given by mine lessees not to mine in the area where water-table had been reached during mining);
(b) no mining can be carried on in areas which are the subject-matter of notifications under Section 4 and/or 5 of the Punjab Land Preservation Act, 1900. However, even in these areas mining can take place after seeking permission under Section 2 of the Forest (Conservation) Act (see para 79);
(c) no mining can be carried on in areas where plantations have been undertaken under the Aravalli Project (EU-funded project); and
(d) environmental clearance is mandatory under the Environment Notification dated 27-1-1994.”
30. It is true that a complete ban was imposed on mining in Aravalli hills vide order dated 29-10-2002/30-10-2002 (2008) 16 SCC 337, (2002) 9 Scale 81, which came to be modified by order dated 16-12-2002 (2008) 16 SCC 401, (2003) 1 Scale 4 and it is equally true that vide judgment in M.C Mehta case (2004) 12 SCC 118 this Court observed that it was not suggesting a complete ban on mining operations so long as it is possible to undertake mining operations on the sustainable development principle (see para 57). At the same time, in paras 89 and 96(6) of the judgment dated 18-3-2004 (2004) 12 SCC 118 this Court specifically suggested that if degradation of the environment continues and reaches the stage of no return, this Court may consider closure of mining activities. In other words, a gateway was provided for this Court to impose the ban in future if degradation of the environment becomes irreversible.
VI. Contentions and answers thereto
31. In IA No. 1967 of 2006 it has been submitted by Shri Anil Diwan, learned Senior Counsel appearing on behalf of the lessee (M/s Sethi Brothers) that the order dated 6-5-2002 (2004) 12 SCC 188 was passed in IA No. 1785 of 2001 moved by the Delhi Ridge Management Board complaining of falling water level in the sanctuary near the Delhi-Haryana border. On account of the falling water levels, the said order dated 6-5-2002 (2004) 12 SCC 188 came to be passed, consequently, mining activities within 5 km in the districts of Faridabad and Gurgaon, including Mewat came to a halt. Later on, the lessees concerned moved an application for modification of the above order on which application this Court directed EPCA to inspect the mines within 5 km and to give its report. EPCA conducted two inspections and gave its report, which are set out in the judgment in M.C Mehta case (2004) 12 SCC 118. CEC also gave three reports which are set out in the said judgment.
32. According to the learned Senior Counsel, after referring to the Reports, vide para 96, this Court gave directions which made environmental clearance mandatory under the Environment Notification dated 27-1-1994. This Court also appointed a Monitoring Committee to inspect individual mines.
33. According to Shri Diwan, in the above judgment in M.C Mehta case (2004) 12 SCC 118, this Court had noticed violation by leaseholders and after extensive analysis of the provisions of the 1957 Act observed that the Court needs to balance the twin objectives of mining based on the principle of sustainable development. According to the learned counsel, even under various reports submitted by CEC, the Committee did not recommend a ban on mining within 5 km but it recommended a ban up to 2 km from Badkhal Lake. However, EPCA recommended a ban of 5 km from the Delhi-Haryana border, which according to the learned counsel, came to be rejected by this Court by issuing directions, as mentioned hereinabove.
34. It is further pointed out that apropos the directions contained in the judgment in M.C Mehta case (2004) 12 SCC 118 the Monitoring Committee inspected the mines. There was difference of opinion between the members. The official members of that Committee, however, recommended resumption of mining activities according to the guidelines laid down in the above judgment in M.C Mehta case (2004) 12 SCC 118. In short, it was submitted on behalf of the lessees that at no point of time this Court suggested or recommended or imposed a ban on mining operations even after noticing non-compliance with the Rules. Therefore, according to the learned counsel, in the present case, banning should be resorted to only if there are no other options left.
35. Further, according to the learned Senior Counsel, a ban can be placed only if material is brought on record to indicate so-called devastation to the ecology as pleaded by the learned amicus curiae. According to the learned counsel, in the present case, there is no such material justifying a complete ban on mining operations.
36. It is also urged by the learned counsel that in pursuance of the directions contained in para 96 of the judgment, MoEF considered applications submitted by Sethi Brothers for EIA and after extensive deliberations, MoEF granted environmental clearance to its two projects on the ground that the leases had not reached the water-table, that the leases were not the subject-matter of notifications under Sections 4 and 5 of the Punjab Land Preservation Act, 1900 and that no mining has been carried out in areas where plantation has been undertaken.
37. We do not find merit in these arguments of Shri Anil Diwan. As stated hereinabove, after taking a macro view based on the satellite images, we have come to the conclusion that this matter needs to be looked at holistically. This exercise which we have undertaken is not project-specific. Moreover, Sethi Brothers might have obtained clearances for two projects as of date but in the past they have carried out mining operations, which according to the learned amicus curiae, has been done without complying with the aspect of rehabilitation.
38. In this connection, it is important to note that in para 18 of the judgment in M.C Mehta case (2004) 12 SCC 118 this Court detected Sethi Brothers operating in different sites in the area without requisite clearances and without environmental management plan. Number of sites have been excavated in the past without clearances, which is indicated in para 18 of the said judgment. It is on account of absence of remedial measures qua those sites that today environment and ecology which are national assets and which are governed by intergenerational equities stand devastated and which leaves no option to the Court but to ban the mining operations till remedial measures are taken and duly certified by the various competent authorities which are in charge of granting clearances.
39. As stated above, even in M.C Mehta (2004) 12 SCC 118 it has been categorically observed that if despite stringent conditions, the degradation of environment continues and reaches a stage of no return then the Court may consider closure of mining activity in the area. Over the years, this Court has given latitude to user agencies with the hope that they would comply with stringent conditions including taking of remedial measures but that hope stands belied. Hence, we find no merit in the above contentions advanced on behalf of Sethi Brothers.
40. We make it clear that by this order the ban will not be confined only to 5 km but it would cover the entire Aravalli hill range within the State of Haryana in which mining operations are being carried out (i.e area admeasuring approximately 448 sq km falling in the districts of Faridabad and Gurgaon, including Mewat).
41. On the legal parameters, Shri Diwan and Shri Venugopal, learned Senior Counsel and Shri S.K Dubey, learned counsel, submitted that where law requires a particular thing to be done in a particular manner, it must be done in that manner and other methods are strictly forbidden. In this connection, it was urged that when Section 4-A postulates formation of an opinion by the Central Government, after consultation of the State Government, in the matter of cancellation of mining leases in cases of environmental degradation, the power needs to be exercised by the State Government upon receipt of request from the Central Government. According to the learned counsel, therefore, this Court cannot cancel the mining leases if there is alleged environmental degradation as submitted by the learned amicus curiae.
42. It was further submitted that measures under Section 3(2)(v) of the EP Act, 1986 to restrict areas in which industries shall or shall not be carried out can only be undertaken by the Central Government where it deems expedient to protect and improve the quality of environment. In fact, according to the learned counsel, when Aravallis Notification was issued on 7-5-1992 it was issued under Section 3(2)(v) by the Central Government. At that time, the Central Government thought it fit not to place a complete ban but to permit the industries in the mining sector to carry on its business/operations subject to restrictions enumerated in the said notification.
43. It was lastly submitted that the recommendations of CEC to impose a complete ban on mining, particularly in cases where environmental clearances are obtained would amount to an exercise of power outside the 1957 Act and the Rules framed thereunder. That, this Court cannot exercise powers under Article 142 of the Constitution when specific provisions are made under various forest and environmental laws dealing with the manner and procedure for cancellation/termination of mining leases.
44. We find no merit in the above arguments. As stated above, in the past when mining leases were granted, requisite clearances for carrying out mining operations were not obtained which have resulted in land and environmental degradation. Despite such breaches, approvals had been granted for subsequent slots because in the past the authorities have not taken into account the macro effect of such wide-scale land and environmental degradation caused by the absence of remedial measures (including rehabilitation plan). Time has now come, therefore, to suspend mining in the above area till statutory provisions for restoration and reclamation are duly complied with, particularly in cases where pits/quarries have been left abandoned.
45. Environment and ecology are national assets. They are subject to intergenerational equity. Time has now come to suspend all mining in the above area on sustainable development principle which is part of Articles 21, 48-A and 51-A(g) of the Constitution of India. In fact, these articles have been extensively discussed in the judgment in M.C Mehta case (2004) 12 SCC 118 which keeps the option of imposing a ban in future open.
46. Mining within the principle of sustainable development comes within the concept of “balancing” whereas mining beyond the principle of sustainable development comes within the concept of “banning”. It is a matter of degree. Balancing of the mining activity with environment protection and banning such activity are two sides of the same principle of sustainable development. They are parts of precautionary principle.
47. At this stage, we may also note that under Section 13(2)(qq) of the 1957 Act, rules have been framed for rehabilitation of flora and other vegetation destroyed by reason of any prospecting or mining operations. Under Section 18 of the 1957 Act, rules have been framed for conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling pollution caused by prospecting or mining operations which also form part of the Mineral Concession Rules, 1960 and the Mineral Conservation and Development Rules, 1988.
48. Under Rule 27(1)(s)(i) of the Mineral Concession Rules, 1960 every lessee is required to take measures for planting of trees not less than twice the number destroyed by mining operations. Under the Mineral Conservation and Development Rules, 1988, vide Rule 34, mandatory provisions for reclamation and rehabilitation of lands are made for every holder of prospecting licence or mining lease to be undertaken and that work has to be completed by the lessee/licensee before abandoning the mine or prospect.
49. Similarly, under Rule 37 of the Mineral Conservation and Development Rules, 1988 the lessee/licensee has to calibrate the air pollution within permissible limits specified under the EP Act, 1986 as well as the Air (Prevention and Control of Pollution) Act, 1981. Under the said Rules of 1988, the most important guidelines are Guidelines 25.26.3, 25.26.4, 25.26.5 and 25.26.6 These guidelines deal with reclamation, planning and implementation, restoration strategy, principles of rehabilitation, rehabilitation of mined-out sites and methods of reclamations (see Handbook of Environment & Forest Legislations, Guidelines and Procedures in India by Ravindra N. Saxena and Sangita Saxena at pp. 1555-62). It may be noted that there are two steps to be taken in the method of reclamation, namely, technical reclamation and biological reclamation. The most important aspect of the above guidelines is making of a rehabilitation plan.
Conclusion
50. None of the above provisions have been complied with. In the circumstance, by the present order, we hereby suspend all mining operations in the Aravalli hill range falling in the State of Haryana within the area of approximately 448 sq km in the districts of Faridabad and Gurgaon, including Mewat till the reclamation plan duly certified by the State of Haryana, MoEF and CEC is prepared in accordance with the above statutory provisions contained in various enactments enumerated above as well as in terms of the rules framed thereunder and the guidelines. The said plan shall state what steps are needed to be taken to rehabilitate (including reclamation) followed by status reports on steps taken by the authorities pursuant to the said plan.
51. The question still remains as to whether we should grant permission to the State of Haryana to excavate minor minerals from a localised area of 600 hectares out of 448 sq km (approx.) for purposes of excavating construction material which is needed for construction of houses, sports complexes and other buildings. In this connection, we may state that on this part the hearing will take place after the summer vacation.
52. Accordingly, IAs Nos. 1967 and 2186 in IA No. 1785 in Writ Petition (C) No. 4677 of 1985 and IA No. 1465 in Writ Petition (C) No. 202 of 1995 and other IAs, which have opposed imposition of ban on mining of major minerals stand disposed of. The IAs which deal with mining of minor minerals are adjourned beyond summer vacation.