HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 9
Case :- WRIT - C No. - 29036 of 2011
Petitioner :- Rajesh Kumar Nishad
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Dev Brat Mukherjee
Respondent Counsel :- C.S.C.
Hon'ble Yatindra Singh,J.
Hon'ble B. Amit Sthalekar,J.
1. The main point involved in the writ petition relates to necessity of obtaining environmental clearance for mining activities under notification no. SO 1533 (E) dated 14.9.2006 (the Notification) issued under the Environment (Protection) Act, 1986 (the Act).
THE FACTS
2. The Collector, Allahabad (the Collector) published a notice dated 2.5.2011 under UP Minor Minerals (Concession) Rules, 1963 (the 1963 Rules) for grant of permit for excavation of sand for three months. This notice was in respect of 10 acres of land at 15 different places situate near rivers Yamuna, Ganga, and Tons.
3. The Collector called reports and after considering the applications granted permits for 9 places only. A chart of these permits along with duration is appended as Appendix-1.
POINTS FOR DETERMINATION
4. We have heard Sri Devbrat Mukherjee counsel for the petitioner and Sri Vishnu Pratap standing counsel for the respondent. The writ petition was filed in the individual capacity. Subsequently, it was treated as public interest litigation. The counsel for the petitioner has dropped some of the points raised in the writ petition and now only the following points are to be decided:
(i) What is the meaning of the words '≥ 5 ha. of mining lease area' used in the schedule appended to the Notification;
(ii) Whether in any circumstance environmental clearance is necessary even if they are leases or permits of less than 5 hectare;
(iii) Whether environmental clearance was necessary in the present case.
1st & 2nd POINTS: SOME CASES REQUIRE
ENVIRONMENTAL CLEARANCE
5. Before we consider the first point, it is relevant to understand the provisions under which the Notification was issued and the directions issued in the judgement dated 29.4.2011 in writ petition no. 2416 (MB) of 2010, Mohd Kausar Jah vs. Union of India and others (the Kausar-Jah case) decided by Lucknow bench of our court.
The Notification
6. The Act has been passed for protection and improvement of environment and for connected matters. The government has also framed the Environment (Protection) Rules, 1986 (the 1986 Rules) under the same.
7. Section 3 of the Act is titled 'Power of Central Government to take measures to protect and improve environment'. Under sub-section (1) of this section {section 3(1)}, the central government has been empowered to take such measures as it deems necessary for protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.
8. Sub-section (2) of section 3 {section 3(2)} of the Act specifically mentions some of the measures for which action might be taken by the government. Among others, under section 3(2)(v) of the Act, the measures can be taken to restrict the areas in which certain operations or processes can not be carried out.
9. Rule 5 of the 1986 Rules is titled 'Prohibition and restriction on the location of industries and the carrying on processes and operations in different areas'. It describes factors that may be taken into consideration by the central government while prohibiting or restricting carrying on processes and operations in different areas.
10. Sub-rule 3 of rule 5 { Rule 5(3)} provides the procedure for prohibiting or restricting any activity. It has to publish the prohibition or restriction by way of a draft notification in the official gazette, invite objections, then after considering the objection, impose prohibition or restrictions by publishing the final notification in the official gazette.
11. The government has issued the final notification on 14.9.2006 (the Notification) under section 3(2)(v) of the Act read with rule 5(3) of the 1986 Rules after considering the objections. Under the Notification, prior environmental clearance is necessary for the projects and activities covered by it.
12. The Notification envisages two categories namely, category A and category B:
In order to conduct activities under category A of the Notification, prior environmental clearance is necessary from the Central Government in the Ministry of Environment and Forests;
In the matters falling under category B of the notification, the prior clearance is required from the State Level Environment Impact Assessment Authority (the Authority).
13. The activities, category as well as threshold limit of different activities are mentioned in the schedule attached to the Notification (the Schedule). The activity of mining of minerals is also included in the Schedule and is at serial number 1(a).
14. In respect of mining of minerals, the threshold limit for the two categories is as follows:
In respect of category A: it is equal or more than 50 hectares of mining lease area. However, in case of Asbestos it falls in category A irrespective of the mining area;
In respect of category B: it is for less than 50 hectares but is equal to or more than 5 hectares of mining lease area.
The Kausar-Jah Case
15. It appears that the Notification was not being followed in our State and writ petitions were filed before the Lucknow Bench of the Allahabad High Court. In this respect, two writ petitions, namely, WP No. 9416 (MB) of 2010 Mohd Kausar Jah vs. Union of India and others and WP 10025 (MB) of 2010, Shyam Bahadur Sakhhya vs. Union of India and others were decided by the Lucknow bench on 29.4.2011; the decision is referred to as Kausar-Jah case. (The first one was disposed off and the second one was dismissed by the common judgement.)
16. In the Kausar-Jah case, the court issued certain directions. In substance they are as follows:
The first direction was in respect of mining leases whose period expired after coming into force of the Notification;
The second direction was a mandate to the State Government that no person should be permitted to carry out any mining activity of minor minerals including sand/ silica without the environmental clearance under the Notification;
The third direction was to implement the report of the Committee appointed by the court in its order dated 6.3.2009 in WP 1580 (MB) of 2009, Noor Mohammad vs. State of UP.
Cases--Requiring Prior Approval
17. The standing counsel submits that:
The permits are for the area of 10 acres;
It is less than 5 hectares; and
No environmental clearance was necessary.
The Golden Rule of Interpretation
18. The lower threshold limit of category B for mining of minerals is 'equal to or more than 5 hectares of mining lease area'. What is the meaning of these words? Does it mean the area leased out for mining purposes or does it mean the area available for grant of mining lease.
19. Environmental law is developing but is the most important of all the jurisprudence; the reason is simple: it is because,
''We have not inherited this planet from our parents. But have merely borrowed it from our children'
This is the golden rule for interpreting environment laws; this is the common thread that runs through the fabric of environmental laws; this is the central theme.
20. We must not forget that our children are our most important investments. They are our future. We have to protect their tomorrow. The responsibility lies with us. We have to remember the golden rule and not only have to enact laws but have to interpret them in its light.
21. If we interpret the words '5 hectare of mining lease area' in the light of the golden rule then it can only have one meaning 5 hectare of area available for leasing out for mining and not only the area let out.
22. In case the submission of the standing counsel is accepted then it would be easy to overreach it: the area can very easily be divided into less than five hectares and let out without taking environmental clearance as envisaged by the Notification. It would be doing a thing indirectly that cannot be done directly: a thing impermissible in law (for citations see below).1
23. To illustrate the point: suppose a piece of land of 8 hectares is available for excavation of minor minerals then obtaining prior environmental clearance cannot be avoided by granting two adjoining/ contiguous/ adjacent leases or permits of 4 hectares each or just one lease or permit for 4 hectares. Environment clearance would be mandatory as the area available for mining was more than five hectare.
24. In our opinion, in case minor mineral is available for mining over 5 hectares or more land then it cannot divided it into plots of less than 5 hectare and let out for mining purpose without obtaining environmental clearance as envisaged in the Notification: the clearance is necessary. Let's consider, if this is violated in this case.
3rd POINT: LAND AVAILABLE FOR MINING -
LESS THAN FIVE HECTARES
25. The counsel for the petitioner submits that:
The permits have been granted on three rivers namely, Yamuna, Ganga, and Tons;
The total area over which permits have been granted in each river is more than 5 hectare;
The respondents can not do so without taking environmental clearance.
26. In the notice dated 2.5.2011, fifteen different portions were notified for grant of permit. The permits have not been granted on all but at nine places only. The respondents have filed counter affidavit and supplementary affidavits; and along with them, the maps have been filed marking the portion of land over which permits have been granted. Different reports about availability of sand are also attached.
27. There is no evidence to suggest that the plots advertised or over which permits had been granted are adjacent or contiguous portions of land. On the contrary, the maps show that permits have been granted over portion of land that are neither contiguous nor adjacent; they are at different places: they are different pieces of land and vacant land lies in between.
28.The report shows that sand is not available over the portion of land lying between any two areas over which permits have been granted. There is nothing on the record to show that the portion in between two areas where permits have been granted any sand is available. There is nothing on the record to show that an area of equal to or more than 5 hectares was available for grant of mining permit, yet the permits were granted for only 10 acres of land.
29. In our opinion, there was no violation of the Notification.
CONCLUSIONS
30. Our conclusions are as follows:
(a)In case minerals are available over 5 hectares or more land then the environmental clearance as envisaged under the Notification No. SO 1533(E), dated 14.9.2006 of Ministry of Environment and Forest is necessary before granting lease/ permit irrespective of the fact that lease/ permit is for the area less than 5 hectares;
(b)In this case there is nothing to show that:
(i)An area equal to or more than 5 hectares was available for grant of permit;
(ii)No sand was available over the land lying in between two portions over which permits have been granted.
31. In view of our conclusions, the writ petition is disposed of with the direction that in case an area equal to or more than 5 hectares is available for mining of minerals then the environmental clearance as required under the Notification cannot be avoided merely for the reason that lease/ permit is for an area less than 5 hectares. In order to avoid any confusion, the State or its official should also record a finding to the effect before granting lease or the permit.
Order Date :- 20.3.2012
BBL
Appendix-1
(The list of the permits along with place and duration)
AFR
Court No. - 9
Case :- WRIT - C No. - 29036 of 2011
Petitioner :- Rajesh Kumar Nishad
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Dev Brat Mukherjee
Respondent Counsel :- C.S.C.
Hon'ble Yatindra Singh,J.
Hon'ble B. Amit Sthalekar,J.
1. The main point involved in the writ petition relates to necessity of obtaining environmental clearance for mining activities under notification no. SO 1533 (E) dated 14.9.2006 (the Notification) issued under the Environment (Protection) Act, 1986 (the Act).
THE FACTS
2. The Collector, Allahabad (the Collector) published a notice dated 2.5.2011 under UP Minor Minerals (Concession) Rules, 1963 (the 1963 Rules) for grant of permit for excavation of sand for three months. This notice was in respect of 10 acres of land at 15 different places situate near rivers Yamuna, Ganga, and Tons.
3. The Collector called reports and after considering the applications granted permits for 9 places only. A chart of these permits along with duration is appended as Appendix-1.
POINTS FOR DETERMINATION
4. We have heard Sri Devbrat Mukherjee counsel for the petitioner and Sri Vishnu Pratap standing counsel for the respondent. The writ petition was filed in the individual capacity. Subsequently, it was treated as public interest litigation. The counsel for the petitioner has dropped some of the points raised in the writ petition and now only the following points are to be decided:
(i) What is the meaning of the words '≥ 5 ha. of mining lease area' used in the schedule appended to the Notification;
(ii) Whether in any circumstance environmental clearance is necessary even if they are leases or permits of less than 5 hectare;
(iii) Whether environmental clearance was necessary in the present case.
1st & 2nd POINTS: SOME CASES REQUIRE
ENVIRONMENTAL CLEARANCE
5. Before we consider the first point, it is relevant to understand the provisions under which the Notification was issued and the directions issued in the judgement dated 29.4.2011 in writ petition no. 2416 (MB) of 2010, Mohd Kausar Jah vs. Union of India and others (the Kausar-Jah case) decided by Lucknow bench of our court.
The Notification
6. The Act has been passed for protection and improvement of environment and for connected matters. The government has also framed the Environment (Protection) Rules, 1986 (the 1986 Rules) under the same.
7. Section 3 of the Act is titled 'Power of Central Government to take measures to protect and improve environment'. Under sub-section (1) of this section {section 3(1)}, the central government has been empowered to take such measures as it deems necessary for protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.
8. Sub-section (2) of section 3 {section 3(2)} of the Act specifically mentions some of the measures for which action might be taken by the government. Among others, under section 3(2)(v) of the Act, the measures can be taken to restrict the areas in which certain operations or processes can not be carried out.
9. Rule 5 of the 1986 Rules is titled 'Prohibition and restriction on the location of industries and the carrying on processes and operations in different areas'. It describes factors that may be taken into consideration by the central government while prohibiting or restricting carrying on processes and operations in different areas.
10. Sub-rule 3 of rule 5 { Rule 5(3)} provides the procedure for prohibiting or restricting any activity. It has to publish the prohibition or restriction by way of a draft notification in the official gazette, invite objections, then after considering the objection, impose prohibition or restrictions by publishing the final notification in the official gazette.
11. The government has issued the final notification on 14.9.2006 (the Notification) under section 3(2)(v) of the Act read with rule 5(3) of the 1986 Rules after considering the objections. Under the Notification, prior environmental clearance is necessary for the projects and activities covered by it.
12. The Notification envisages two categories namely, category A and category B:
In order to conduct activities under category A of the Notification, prior environmental clearance is necessary from the Central Government in the Ministry of Environment and Forests;
In the matters falling under category B of the notification, the prior clearance is required from the State Level Environment Impact Assessment Authority (the Authority).
13. The activities, category as well as threshold limit of different activities are mentioned in the schedule attached to the Notification (the Schedule). The activity of mining of minerals is also included in the Schedule and is at serial number 1(a).
14. In respect of mining of minerals, the threshold limit for the two categories is as follows:
In respect of category A: it is equal or more than 50 hectares of mining lease area. However, in case of Asbestos it falls in category A irrespective of the mining area;
In respect of category B: it is for less than 50 hectares but is equal to or more than 5 hectares of mining lease area.
The Kausar-Jah Case
15. It appears that the Notification was not being followed in our State and writ petitions were filed before the Lucknow Bench of the Allahabad High Court. In this respect, two writ petitions, namely, WP No. 9416 (MB) of 2010 Mohd Kausar Jah vs. Union of India and others and WP 10025 (MB) of 2010, Shyam Bahadur Sakhhya vs. Union of India and others were decided by the Lucknow bench on 29.4.2011; the decision is referred to as Kausar-Jah case. (The first one was disposed off and the second one was dismissed by the common judgement.)
16. In the Kausar-Jah case, the court issued certain directions. In substance they are as follows:
The first direction was in respect of mining leases whose period expired after coming into force of the Notification;
The second direction was a mandate to the State Government that no person should be permitted to carry out any mining activity of minor minerals including sand/ silica without the environmental clearance under the Notification;
The third direction was to implement the report of the Committee appointed by the court in its order dated 6.3.2009 in WP 1580 (MB) of 2009, Noor Mohammad vs. State of UP.
Cases--Requiring Prior Approval
17. The standing counsel submits that:
The permits are for the area of 10 acres;
It is less than 5 hectares; and
No environmental clearance was necessary.
The Golden Rule of Interpretation
18. The lower threshold limit of category B for mining of minerals is 'equal to or more than 5 hectares of mining lease area'. What is the meaning of these words? Does it mean the area leased out for mining purposes or does it mean the area available for grant of mining lease.
19. Environmental law is developing but is the most important of all the jurisprudence; the reason is simple: it is because,
''We have not inherited this planet from our parents. But have merely borrowed it from our children'
This is the golden rule for interpreting environment laws; this is the common thread that runs through the fabric of environmental laws; this is the central theme.
20. We must not forget that our children are our most important investments. They are our future. We have to protect their tomorrow. The responsibility lies with us. We have to remember the golden rule and not only have to enact laws but have to interpret them in its light.
21. If we interpret the words '5 hectare of mining lease area' in the light of the golden rule then it can only have one meaning 5 hectare of area available for leasing out for mining and not only the area let out.
22. In case the submission of the standing counsel is accepted then it would be easy to overreach it: the area can very easily be divided into less than five hectares and let out without taking environmental clearance as envisaged by the Notification. It would be doing a thing indirectly that cannot be done directly: a thing impermissible in law (for citations see below).1
23. To illustrate the point: suppose a piece of land of 8 hectares is available for excavation of minor minerals then obtaining prior environmental clearance cannot be avoided by granting two adjoining/ contiguous/ adjacent leases or permits of 4 hectares each or just one lease or permit for 4 hectares. Environment clearance would be mandatory as the area available for mining was more than five hectare.
24. In our opinion, in case minor mineral is available for mining over 5 hectares or more land then it cannot divided it into plots of less than 5 hectare and let out for mining purpose without obtaining environmental clearance as envisaged in the Notification: the clearance is necessary. Let's consider, if this is violated in this case.
3rd POINT: LAND AVAILABLE FOR MINING -
LESS THAN FIVE HECTARES
25. The counsel for the petitioner submits that:
The permits have been granted on three rivers namely, Yamuna, Ganga, and Tons;
The total area over which permits have been granted in each river is more than 5 hectare;
The respondents can not do so without taking environmental clearance.
26. In the notice dated 2.5.2011, fifteen different portions were notified for grant of permit. The permits have not been granted on all but at nine places only. The respondents have filed counter affidavit and supplementary affidavits; and along with them, the maps have been filed marking the portion of land over which permits have been granted. Different reports about availability of sand are also attached.
27. There is no evidence to suggest that the plots advertised or over which permits had been granted are adjacent or contiguous portions of land. On the contrary, the maps show that permits have been granted over portion of land that are neither contiguous nor adjacent; they are at different places: they are different pieces of land and vacant land lies in between.
28.The report shows that sand is not available over the portion of land lying between any two areas over which permits have been granted. There is nothing on the record to show that the portion in between two areas where permits have been granted any sand is available. There is nothing on the record to show that an area of equal to or more than 5 hectares was available for grant of mining permit, yet the permits were granted for only 10 acres of land.
29. In our opinion, there was no violation of the Notification.
CONCLUSIONS
30. Our conclusions are as follows:
(a)In case minerals are available over 5 hectares or more land then the environmental clearance as envisaged under the Notification No. SO 1533(E), dated 14.9.2006 of Ministry of Environment and Forest is necessary before granting lease/ permit irrespective of the fact that lease/ permit is for the area less than 5 hectares;
(b)In this case there is nothing to show that:
(i)An area equal to or more than 5 hectares was available for grant of permit;
(ii)No sand was available over the land lying in between two portions over which permits have been granted.
31. In view of our conclusions, the writ petition is disposed of with the direction that in case an area equal to or more than 5 hectares is available for mining of minerals then the environmental clearance as required under the Notification cannot be avoided merely for the reason that lease/ permit is for an area less than 5 hectares. In order to avoid any confusion, the State or its official should also record a finding to the effect before granting lease or the permit.
Order Date :- 20.3.2012
BBL
Appendix-1
(The list of the permits along with place and duration)
