Jharkhand High Court
M/S. Nishant Roadlines vs The Union Of India on 2 September, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:26701-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.4107 of 2023
-----
M/s. Nishant Roadlines, represented through it's sole
proprietor namely Sri. Umlesh Ojha, son of Sri.
Gupteshwar Ojha, aged about 48 years, resident of Village
Barajamda, Near Railway Crossing, Diriburu, P.O and P.S
Barajamda District West Singhbhum (Jharkhand) and
having its office at Heaven Palace, Shop No.8, Behind MP
Tower, Ρ.Ο. Adityapur, P.S. Adityapur, District Seraikella
Kharswan (Jharkhand). ... ... Petitioner
Versus
1. The Union of India, through the Principal Secretary,
Ministry of Environment, Forest and Climate Change,
having its office at 2nd Floor, Indira Paryavaran
Bhawan, Jorebagh Road, P.O. & P.S. Jorebagh, New
Delhi-110003.
2. The State of Jharkhand, through the Principal Secretary,
Department of Mines and Geology, having its office at
Nepal House, Doranda, P.O. & P.S. Doranda, District
Ranchi (Jharkhand).
3. Principal Secretary, Department of Forest, having its
office at Yojna Bhawan, 3rd floor, Nepal House, Doranda,
P.O. & P.S. Doranda, District Ranchi (Jharkhand).
4. State Level Environment Impact Assessment Authority
(SEIAA)-Jharkhand through it's member Secretary,
having it's office at Dhurwa Nursery Complex, Near
Dhurwa Bus Stand, P.O and P.S. Dhurwa, District
Ranchi (Jharkhand).
5. Divisional Forest Officer, Chaibasa, having its office at
Chaibasa, P.O. Chaibasa, P.S. Sadar, District West
Singhhum (Jharkhand).
6. District Mining Officer, Chaibasa, having its office at
Chaibasa, P.O. Chaibasa, P.S. Sadar, District West
Singhhum (Jharkhand).
... ... Respondents
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
-------
For the Petitioner : Mr. Sumeet Gadodia, Advocate
: Mr. Ranjeet Kushwaha, Advocate
: Ms. Tanya Kumari, Advocate
: Mr. Anish Lal, Advocate
For the UOI : Mr. Sunil Kumar, Advocate
For the State : Mr. Shray Mishra, A.C. to A.G.
For the SEIAA : Mr. Bhanu Kumar, Advocate
------
C.A.V. on 14.08.2025 Pronounced on 02/09/2025
1
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Per Sujit Narayan Prasad, J.
1. The writ petition is under Article 226 of the
Constitution of India for issuance of following reliefs :-
"(i) For issuance of an appropriate writ, order or direction,
declaring that the Management Plan for Sustainable Mining
in Saranda and Chaibasa of Singhbhum District, Jharkhand
(Annexure-5), published by the Respondent no. 1 in the year
2018 does not have force of law and can otherwise not be
made applicable to mining activities in non-forest areas;
(ii) Upon such declaration, for issuance of an appropriate
writ, order or direction particularly a writ of or in the nature
of certiorari, quashing ana setting aside the letter bearing
no. 461 dated 24.03.2023 (Annexure-4), issued under the
signature of respondent no.4 by which the application of
petitioner for grant of Environment Clearance has been
rejected;
(iii) For issuance of a further appropriate writ, order or
direction particularly a writ of or in the nature of
mandamus, commanding upon the respondent no.4 to
forthwith grant Environment Clearance to the petitioner for
operating his mines for which he has been granted a Letter
of Intent dated 15.09.2022 upon submission of a fresh
application; and
(iv) For any other relief or reliefs for which the petitioner is
legally entitled in the facts and circumstances of the case."
Factual Matrix
2. The brief facts of the case as per the pleading made
in the writ petition, which are required to be enumerated,
read as under :-
It is the case of the petitioner that the petitioner, a
proprietorship firm, upon participating in auction for grant
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of mining lease for stone, after following the due process
prescribed in law and having declared as the preferred
bidder, has been issued with a Letter of Intent (LoI) bearing
no. Kha.Ni (Nilami)-22/2022-1952/M dated 15.09.2022, for
grant of Mining lease over an area of 4 Acres in Gundijora
Stone Block situated in District West Singhbhum
(Jharkhand), and has complied with all the conditions of
such LoI.
3. As a prerequisite for execution of Mining Lease deed
and initiation of mining operations, the petitioner
submitted a proposal for grant of Environment Clearance
before the respondent no.4 vide proposal no.
SIA/JH/MIN/413198/2023.
4. The Mining Plan in respect of the aforesaid mines
was also approved by the competent authority vide letter
no. G/2022-23-296 dated 14.10.2022.
5. The mining lease of the petitioner is situated within
village Gundijora which is indisputably a revenue village
having no forest cover/growth and does not have any
chunk of land under the notified forest cover.
6. The application for grant of environment clearance
was rejected by the respondent no.4 for the reason that the
village in which the petitioner's mines is situated falls
under 'No-Mining Zone' as per the Management Plan for
Sustainable Mining (MPSM). The communication stating
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the said reason and rejecting the proposal for grant of EC
was issued vide letter no.461 dated 24.03.2023.
7. The respondent no.1 published the MPSM in the
year 2018 pursuant to a study conducted by the ICFRE in
connection with the Justice Shah Commission's report on
illegal mining which has been published to propose a plan
for sustainable operation of mines in Saranda and
Chaibasa Forest Divisions complying the recommendations
of Justice Shah Commission. The study conducted by the
ICFRE, which forms the basis for the MPSM, was basically
aimed at conservation and protection of forest and was
particularly in relation with iron ore mining.
8. At page 32 of the report, serial no.245 of the table
notes the name of the village in which the petitioner's
mines are situated, identifies the same as a part of the
Chaibasa Forest Division and as a Conservation Area/no-
mining area. The aforesaid identification of entire village
Gundijora as a conservation area/no-mining zone itself is
arbitrary and without any basis/justification.
9. The MPSM is otherwise a document/report based
on a study by ICFRE which can, at best be termed as a
guideline which has not been notified in a gazette neither
has been approved by the Competent Authority and has not
been authenticated for its application/enforcement
/implementation as per law.
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10. It is the further case of the petitioner that although
para 17 of the same mentions that the same has been
prepared in consultation with the stakeholders, but the
petitioner never got any notice to participate in any study,
which today is set to infringe its valuable rights. Moreover,
the entire MPSM seems to have been drafted in connection
with Iron ore mining and does not specifically talk about
any other mineral.
11. It is the case of the petitioner that the MPSM also
states that the sanctity of existing lease boundaries
extending to biodiversity hotspots shall be maintained and
mining shall be allowed. However, despite the above, the
respondent no.4 has passed the impugned order.
12. It is the grievance of the writ petitioner that the
State Government has consented for stone mining in the
Saranda forest area, district of Singhbhum West, Chaibasa,
as would be evident from Letter of Intent (LoI) bearing no.
Kha.Ni (Nilami)-22/2022-1952/M dated 15.09.2022, but as
per the requirement, when the State Environment Impact
Assessment Authority (SEIAA) has been approached for
grant of Environment Clearance, the same has been
rejected vide communication dated 24.03.2023 as
contained in letter bearing No.461 on the ground that the
area of Saranda Forest has been declared to be
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conservation zone and no mining operation is allowed in
view of the MPSM.
Submission made on behalf of the Petitioner
13. The argument has been advanced on behalf of
petitioner that the aforesaid management plan for
sustainable mining in Saranda in Chaibasa of Singhbhum
West district has only considered the issue of mining
operation of iron ore and manganese and nothing else.
14. The contention has been raised that the subject
matter of the mining operation herein is for stone mining
which has not been dealt with in MPSM, therefore, the
ground taken by the SEIAA in not issuing the Environment
Clearance is absolutely improper and without application of
mind. Therefore, the decision as contained in letter bearing
no. 461 dated 24.03.2023 is fit to be quashed and set
aside.
Submission made by learned counsel appearing for the
respondent-SEIAA
15. Learned counsel for the SEIAA has submitted that it
is incorrect on the part of the writ petitioner to take the
ground that only consideration which has been given in the
MPSM plan is confined to the mining of iron ore and the
manganese, rather, the consideration is to be given on the
environmental issue and once the environmental issue is
the sole criteria then it is upto the satisfaction of the SEIAA
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to take a decision to issue environment clearance or not.
The SEIAA, on the basis of the aforesaid consideration, has
taken a conscious decision in order to maintain the cause
of conservation of the Saranda Forest and that is the
reason the Environment Clearance has not been given.
Hence, such decision cannot be said to suffer from an
error.
Submission made by learned counsel for the Union of
India
16. Learned counsel appearing for the respondent-
Union of India has submitted that the petitioner has
submitted a proposal for grant of Environmental Clearance
before the Respondent no. 4 i.e. State Level Environment
Impact Assessment Authority (SEIAA) Jharkhand. The
SEIAA, Jharkhand, vide letter dated 24.03.2023 rejected
the application for grant of Environmental Clearance
stating that the village in which the petitioner's mines falls
is situated under 'No-Mining Zone' as per the Management
Plan for Sustainable Mining (MPSM).
17. It has been submitted that the Management plan for
Sustainable Mining was prepared by the Ministry of
Environment, Forest and Climate Change upon the
'memorandum of action taken' on the 'first report on illegal
mining of iron and manganese ores in the State of
Jharkhand' of Justice M.B. Shah Commission of inquiry
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submitted to the Ministry of Mines and the same was
approved by the competent authority in the Ministry of
Environment, Forest & Climate Change.
18. Learned counsel has further submitted that as per
the recommendations made in the MPSM, the entire area of
Saranda and Chaibasa of West Singhbhum District were
categorized into two zones Mining Zone and Conservation
Zones. Mining activities were recommended to be restricted
in the mining zone only while no mining activities were
recommended in the Conservation Zone.
19. It has further been submitted that the instant
project for grant of Environment Clearance pertains to the
Mining lease over an area of 4 Acres in Gundijora Stone
Block situated in Village Gundijora, West Singhbhum
District of the Jharkhand State. As per the MPSM, the
entire Gundijora Village has been kept under the
Conservation Area/No mining zone.
20. It has further been submitted that the MPSM did
not differentiate between the type/category of mining
activity.
21. Learned counsel has further submitted that the
MPSM was formulated to holistically regulate the mining
and allied activities in the Saranda & Chaibasa Region
considering the area being highly ecologically sensitive and
home to various types of flora and fauna. Further, if any
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mining activity is permitted in a non-forest area falling
within the no mining zone/conservation zone, the very
purpose of conservation of flora and fauna would be
defeated.
22. It has been submitted that the State Department of
Mines and Geology is the Nodal Authority in the State for
dealing with the allotment of mining leases under the Mines
and Minerals (Development and Regulation) Act (MMDR
Act) and is entrusted with the enforcement and regulation
of mining operations in a State.
23. Learned counsel for the Union of India has
submitted that the Ministry issued Environmental Impact
Assessment Notification dated 14th September, 2006 which
requires certain projects to obtain prior Environmental
Clearance before any construction work in case of new
projects or expansion and modernization of existing
projects or activities.
24. It has been submitted that the Ministry vide
notification S.O. 1886 (E) dated 20.04.2022 has delegated
the power to the State Level Environment Impact
Assessment Authority (SEIAA) to grant Environmental
Clearances to all minor mineral mining projects,
irrespective of mine lease area.
25. Learned counsel has further submitted that the
State Level Environment Impact Assessment Authority
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(SEIAA) Jharkhand, is a regulatory authority in the instant
matter and the SEIAA, Jharkhand has considered the
project in its meeting and after detailed examination
unanimously decided not to accept the above mentioned
project proposals for consideration of Environmental
Clearance.
Submission made by learned counsel appearing for the
respondent-State
26. Learned counsel for the State has submitted that
although the consent to operate was given in the said forest
area but based upon the MPSM, the State is not moving
forward in the matter of issuance of lease. Moreover, the
issuance of lease totally depends upon the issuance of
Environment Clearance and so long as the Environment
Clearance is not available, no lease can be granted by the
State.
Analysis
27. We have heard the learned counsel for the parties
and gone through the pleading made in the writ petition as
also the affidavits filed on behalf of the respective parties
including the response thereto filed on behalf of the
petitioner.
28. This Court requires to consider as to whether the
decision so taken by the Ministry of Environment and
Forest by way of MPSM can only be given effect to in a case
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of mining of iron and manganese or it is to be implemented
in order to protect the issue of environment by causing no
threat to the area of the Saranda Forest?
29. This Court, in order to answer the aforesaid issue,
needs to refer herein the provisions of Environment
(Protection) Act, 1986 with its object which has been
enacted for the protection and improvement of environment
and the prevention of hazards to human beings, other living
creatures, plants and property.
30. The Environment Protection Act, 1986, was enacted
under Article 253 of the Indian Constitution, which
empowers Parliament to make laws for implementing
international agreements. Its foundation can be traced back
to India's participation in the United Nations Conference on
the Human Environment held in Stockholm in June 1972.
At that conference, global leaders recognized the urgent
need to address environmental degradation, and India
pledged to take legislative steps toward environmental
protection.
31. Be it enacted by Parliament in the Thirty-seventh
Year of the Republic of India as follows:--
Statement of Objects and Reasons.--Concern over the
state of environment has grown the world over since the
sixties. The decline in environmental quality has been
evidenced by increasing pollution, loss of vegetal cover
and biological diversity, excessive concentrations of
harmful chemicals in the ambient atmosphere and in
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food chains, growing risks of environmental accidents
and threats to life support systems. The world
community's resolve to protect and enhance the
environmental quality, found expression in the decisions
taken at the United Nations Conference on the Human
Environment held in Stockholm in June 1972. The
Government of India participated in the Conference and
strongly voiced the environmental concerns. While
several measures have been taken for environmental
protection both before and after the Conference, the need
for a general legislation further to implement the
decisions of the Conference has become increasingly
evident.
2. Although there are existing laws dealing directly or
indirectly with several environmental matters, it is
necessary to have a general legislation for environmental
protection. Existing laws generally focus on specific types
of pollution or on specific categories of hazardous
substances. Some major areas of environmental hazards
are not covered. There also exist uncovered gaps in areas
of major environmental hazards. There are inadequate
linkages in handling matters of industrial and
environmental safety. Control mechanisms to guard
against slow, insidious build-up of hazardous substances
especially new chemicals in the environment, are weak.
Because of a multiplicity of regulatory agencies, there is
need for an authority which can assume the lead role for
studying, planning and implementing long term
requirements of environmental safety and to give
direction to, and co-ordinate a system of speedy and
adequate response to emergency situations threatening
the environment.
3. In view of what has been stated above, there is an
urgent need for the enactment of a general legislation on
environmental protection which inter alia, should enable
co-ordination of activities of the various regulatory
agencies, creation of an authority or authorities with
adequate powers for environmental protection, regulation
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of discharge of environmental pollutants and handling of
hazardous substances, speedy response in the event of
accidents threatening environment and deterrent
punishment to those who endanger human environment,
safety and health.
32. "Environment" is a difficult word to define. Its
normal meaning relates to the surroundings, but obviously
that is a concept which is relatable to whatever object it is
which is surrounded. Environment is a polycentric and
multifaceted problem affecting the human existence,
reference in this regard be made to the judgment of the
Hon'ble Apex Court in the case of T.N. Godavarman
Thirumalpad v. Union of India, (2002) 10 SCC 606.
33. It requires to refer herein that The Environment
Pollution (Prevention and Control) Authority is a statutory
authority constituted under Section 3 of the Environment
(Protection) Act, 1986, and its directions are final and
binding on all persons and organisations concerned,
reference be made to M.C. Mehta v. Union of India,
(2002) 4 SCC 356.
34. It requires to refer herein that under Section 3(2)(v)
of the Act 1986 total prohibition against establishment of
industries in an area is in force, State Government neither
can grant exemption to a specified industry located within
or attempting to locate itself within such area nor can the
State direct the State Pollution Control Board to prescribe
conditions for grant of NOC. The aforesaid view has been
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rendered in the case of A.P. Pollution Control Board II v.
Prof. M.V. Nayudu, (2001) 2 SCC 62.
35. It requires to refer herein that the National Forest
Policy, 1988 which lays down far-reaching principles must
necessarily govern the grant of permissions under Section 2
of the Forest (Conservation) Act, 1980 as the same provides
the road map to ecological protection and improvement
under the Environment (Protection) Act, 1986. The
principles/guidelines mentioned in the National Forest
Policy, 1988 should be read as part of the provisions of the
Environment (Protection) Act, 1986 read together with the
Forest (Conservation) Act, 1980, reference in this regard be
made to the judgment rendered by the Hon'ble Apex Cort
Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011)
7 SCC 338.
36. It needs to refer herein that prior environmental
clearance in terms of 2006 notification issued under
Section 3 of the Environment (Protection) Act, 1986 Act
read with Rule 5 of the Environment (Protection) Rules,
1986, is required to be taken before commencement of the
"actual construction or building work" of the national
highway by the executing agency (NHAI),reference in this
regard be made to the judgment rendered by the Hon'ble
Apex Court in Project Implementation Unit v. P.V.
Krishnamoorthy, (2021) 3 SCC 572.
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37. In the case of Goa Foundation v. Union of India,
(2014) 6 SCC 590 the Hon'ble Apex Court has categorically
issued the directions regulatory bodies to deal with illegal
mining and to restore the environment from the damage
caused by mining, and further direction has been passed
that all mining within a distance of 1 km from national
parks and sanctuaries, are prohibited .
38. Recently the Hon'ble Apex Court in the case of
Vanashakti Vs. Union of India 2025 SCC OnLine SC
1139 while tracing the evolution of the Environmental Act
1986 and emphasizing the process of issuance of EIA
(Environment Impact Assessment Notification, 2006)
notification has observed that Sub-section (1) of Section 3
sums up the very object of the 1986 Act. Therefore, the EIA
notification has been issued not only for the purposes of
protecting and improving the quality of the environment
but also for preventing and abating environmental
pollution. Subsection (1) of Section 3 confers general power
of taking measures on the Central Government. Sub-
section (2) confers specific power for taking measures in the
matters set out in clauses (i) to (ix) thereof. Clause (v) of
subsection (2) of Section 3 empowers the Central
Government to take measures for putting restrictions of
areas in which any industries, operations or processes shall
not be carried out or shall be carried out subject to
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safeguards. The relevant paragraph of the aforesaid
judgment is being quoted as under:
"Part IV-A of the Constitution of India containing
fundamental duties as set out in Article 51A was
incorporated in the Constitution by the 42nd Amendment
Act with effect from 3rd January 1977. Clause (g) of
Article 51A provides that it shall be the duty of every
citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wildlife,
and to have compassion for living creatures. This Court
in several decisions has held that the right to live in a
pollution free atmosphere is a part of the fundamental
right guaranteed under Article 21 of the Constitution of
India.
2. The world changed rapidly after World War II. From
the late 1960s and early 1970s, slowly there was a
realisation about the drastic consequences of the
destruction of environment and pollution of various
kinds. In June 1972, at Stockholm, the United Nations
Conference on Human Environment was held. In the said
conference, several decisions were taken by the world
community to protect the environment.
3. In our country, it took fourteen years thereafter for the
legislature to come out with a law for protection and
improvement of the environment. The Environment
(Protection) Act, 1986 (for short, 'the 1986 Act') was
brought into force with effect from 19th November 1986.
As can be noticed from several orders of this Court and
the High Courts, the progress of implementation of the
1986 Act has been very slow.
4. The 1970s and 1980s saw growth of industrialisation
in our country. The activities such as mining, gas
exploration, thermal power plants, petroleum refining
industries, various other industries, building and
construction projects, such as, highways started growing.
5. Again, it took twenty years after the 1986 Act came
into force to exercise the power under sub-section (1) and
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clause (v) of sub-section (2) of Section 3 of the 1986 Act
read with clause (d) of sub-rule (3) of Rule 5 of the
Environment (Protection) Rules, 1986 (for short, '1986
Rules') for coming out with the Environment Impact
Assessment Notification, 2006 (for short, 'the EIA
notification'). The EIA notification was issued on 14th
September 2006. It provided that the projects or activities
mentioned in clause (2) thereof shall require prior
Environmental Clearance (for short, 'the EC') from the
concerned regulatory authority. The concerned regulatory
authority in the Central Government is the Ministry of
Environment Forests and Climate Change (for short, 'the
MoEFCC') for matters falling under Category 'A' in the
Schedule, and at the State level, the State Environment
Impact Assessment Authority (for short, 'the SEIAA') for
the matters falling in Category 'B'. In the Schedule,
Categories 'A' and 'B' were incorporated setting out
industries and other development work. The entire
controversy in this group of petitions is about ex post
facto grant of EC.
13.1 Sub-section (1) of Section 3 sums up the very object
of the 1986 Act. Therefore, the EIA notification has been
issued not only for the purposes of protecting and
improving the quality of the environment but also for
preventing and abating environmental pollution.
Subsection (1) of Section 3 confers general power of
taking measures on the Central Government. Sub-section
(2) confers specific power for taking measures in the
matters set out in clauses (i) to (ix) thereof. Clause (v) of
subsection (2) of Section 3 empowers the Central
Government to take measures for putting restrictions of
areas in which any industries, operations or processes
shall not be carried out or shall be carried out subject to
safeguards.
14.2 Therefore, without prior EC, construction of new
projects or activities, expansion or modernisation of
existing projects or activities listed in the Schedule
entailing capacity addition with change in process or
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technology, cannot be undertaken. Entire procedure for
grant of prior EC is laid down in the EIA notification.
15.1 Thus, what was sought to be done was to protect
the project proponents who committed gross illegality by
commencing construction or commencing operation or
process without obtaining prior EC as provided in the EIA
notification. The 2017 notification was a one-time
measure. Moreover, this Court in the case of Common
Cause v. Union of India2, held in no uncertain terms that
the concept of ex post facto or retrospective EC is
completely alien to environmental jurisprudence
including the EIA notification. The decision in the case of
Common Cause2 was delivered on 2nd August 2017.
Notwithstanding the clear declaration of law which was
made on 2nd August 2017, the Central Government did
not withdraw the 2017 notification.
17. The issue of ex post facto EC was dealt with in the
case of Common Cause2, In paragraph 108, a submission
was recorded that the possibility of getting ex post facto
EC was a signal to the mining leaseholders that obtaining
an EC was not mandatory or that if it was not obtained,
the default was retrospectively condonable. In paragraph
125, this Court held thus:
"125. We are not in agreement with the learned counsel
for the mining leaseholders. There is no doubt that the
grant of an EC cannot be taken as a mechanical
exercise. It can only be granted after due diligence
and reasonable care since damage to the environment
can have a long-term impact. EIA 1994 is therefore
very clear that if expansion or modernisation of any
mining activity exceeds the existing pollution load, a
prior EC is necessary and as already held by this
Court in M.C. Mehta [M.C. Mehta v. Union of India,
(2004) 12 SCC 118] even for the renewal of a mining
lease where there is no expansion or modernisation of
any activity, a prior EC is necessary. Such
importance having been given to an EC, the grant of
an ex post facto environmental clearance would be
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detrimental to the environment and could lead to
irreparable degradation of the environment. The
concept of an ex post facto or a retrospective EC is
completely alien to environmental jurisprudence
including EIA 1994 and EIA 2006. We make it clear
that an EC will come into force not earlier than the date
of its grant."
18. Therefore, there is already a concluded finding of this
Court that the concept of ex post facto or retrospective EC
is completely alien to environmental jurisprudence and
the EIA notification. This view was reiterated by this
Court in the case of Electrosteel Steels Ltd. v. Union of
India4,. In paragraph 72, this Court held thus:
"72. There can be no doubt that the need to comply
with the requirement to obtain environment
clearance is non-negotiable. A project can be set up or
allowed to expand subject to compliance of the requisite
norms. Environmental clearance is granted on condition
of the suitability of the site to set up the project from the
environmental angle, and existence of necessary
infrastructural facilities and equipment for compliance of
environmental norms. To protect future generations, it is
imperative that pollution laws be strictly enforced. Under
no circumstances, can industries which pollute be
allowed to operate unchecked and degrade the
environment."
23. Apart from the fact that the very concept of grant of
ex-post facto EC is illegal, it is not possible to understand
why the Central Government made efforts to protect
those who committed illegality by not obtaining prior EC
in terms of the EIA notification. As the EIA notification
was eleven years old when the 2017 notification was
issued, there was no equity in favour of those who
committed such gross illegality of not obtaining prior EC.
The persons who acted without prior EC were not
illiterate persons. They were companies, real estate
developers, public sector undertakings, mining
industries, etc. They were the persons who knowingly
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committed illegality. We, therefore, make it clear that
hereafter, the Central Government shall not come out
with a new version of the 2017 notification which
provides for the grant of ex-post facto EC in any manner.
26. The basic submission by learned ASG is based on a
premise that what is provided under the 2021 OM is not
grant of ex-post facto EC. The relevant part of the 2021
OM is in paragraph 10 and 11, which read thus:
"10. Standard Operating Procedure-Guiding
Principles:
i. Without prejudice to any other consequences, action
has to be initiated under section 15 read with section
19 of The Environment (Protection) Act, 1986 against all
violations.
ii. Projects not allowable/permissible, for grant of EC, as
per extant regulations : To be demolished.
iii. Projects allowable/permissible, if prior EC had been
taken as per extant regulations : To be closed until EC
is granted (if no prior EC has been taken) or to revert
to permitted production level (in case prior EC has
been granted).
iv. Polluter pays : Violators to pay for violation period
proportionate to the scale of project and extent of
commercial transaction.
v. Setting up a mechanism for reporting of violation to the
regulatory authority(ies).
39. Thus, it is evident from the aforesaid judgment that
the Hon'ble Apex Court has observed that very concept of
grant of ex-post facto EC is illegal, and direction has been
passed upon the Central Government that to not come out
with a new version of the 2017 notification which provides
for the grant of ex-post facto EC in any manner.
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40. Further, it is settled position of law that
Environmental Impact Assessment (EIA) done and
environmental clearance granted by expert authorities can
be quashed on well-recognised principles of judicial review
i.e. if there is any illegality, irrationality or procedural
impropriety in granting such permission. However, if after
setting up of plant, the plant begins/continues to pollute
environment fundamental right under Article 21 of
Constitution, it can always be invoked, reference be made
to the Sterlite Industries (India) Ltd. v. Union of India,
(2013) 4 SCC 575.
41. It requires to refer herein that the legislation has
also been formulated by bifurcating the issue to maintain
the environment by enacting the various Acts, i.e., Water
(Prevention and Control of Pollution) Act, 1974, Air
(Prevention and Control of Pollution) Act, 1981, etc.
42. All these Acts having its individual object to
maintain the environment so as to maintain the
sustainable development.
43. The Hon'ble Apex Court has also considered the
issue of environment in the case of Bittu Sehgal v. Union
of India, (2001) 9 SCC 181, Karnatak Industrial Area
Development Board v. C. Kenchappa & Others, (2006) 6
SCC 371, T.N. Godavarman v. Union of India, (2002) 10
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SCC 606, and Deepak Kumar v. State of Haryana
(2012) 4 SCC 629.
44. The relevant paragraphs of the aforesaid judgments
are being referred herein :-
Bittu Sehgal v. Union of India, (2001) 9 SCC 181
"15. This Court in Vellore Citizens' Welfare Forum v. Union of
India [(1996) 5 SCC 647 : JT (1996) 7 SC 375] considered in
detail the "sustainable development" to the extent which has
been recognised under the international law and also its
practicability under the environmental laws in India. This
Court in the said judgment held that the "precautionary
principle" and "the polluter pays" principle have been accepted
as part of the law of the land. The relevant part of the
judgment is as under: (SCC pp. 658-60, paras 11-14)
"11. Some of the salient principles of 'Sustainable
Development', as culled out from Brundtland Report and other
international documents, are Inter-Generational Equity, Use
and Conservation of Natural Resources, Environmental
Protection, the Precautionary Principle, Polluter Pays
Principle, Obligation to Assist and Cooperate, Eradication of
Poverty and Financial Assistance to the developing countries.
We are, however, of the view that 'The Precautionary Principle'
and 'The Polluter Pays Principle' are essential features of
'Sustainable Development'. The 'Precautionary Principle' -- in
the context of the municipal law -- means:
(i) Environmental measures -- by the State Government and
the statutory authorities -- must anticipate, prevent and
attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage,
lack of scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation.
(iii) The 'onus of proof' is on the actor or the
developer/industrialist to show that his action is
environmentally benign.
12. 'The Polluter Pays Principle' has been held to be a sound
principle by this Court in Indian Council for Enviro-Legal Action
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v. Union of India [(1996) 3 SCC 212 : JT (1996) 2 SC 196] . The
Court observed: (SCC p. 246, para 65)
'... we are of the opinion that any principle evolved in this
behalf should be simple, practical and suited to the conditions
obtaining in this country.'
The Court ruled that: (SCC p. 246, para 65)
'... once the activity carried on is hazardous or inherently
dangerous, the person carrying on such activity is liable to
make good the loss caused to any other person by his activity
irrespective of the fact whether he took reasonable care while
carrying on his activity. The rule is premised upon the very
nature of the activity carried on.'
Consequently the polluting industries are 'absolutely liable to
compensate for the harm caused by them to villagers in the
affected area, to the soil and to the underground water and
hence, they are bound to take all necessary measures to
remove sludge and other pollutants lying in the affected
areas'. The 'Polluter Pays Principle' as interpreted by this
Court means that the absolute liability for harm to the
environment extends not only to compensate the victims of
pollution but also the cost of restoring the environmental
degradation. Remediation of the damaged environment is part
of the process of 'Sustainable Development' and as such the
polluter is liable to pay the cost to the individual sufferers as
well as the cost of reversing the damage to ecology.
13. The Precautionary Principle and the Polluter Pays
Principle have been accepted as part of the law of the land.
Article 21 of the Constitution of India guarantees protection of
life and personal liberty. Articles 47, 48-A and 51-A(g) of the
Constitution are as under:
'47. Duty of the State to raise the level of nutrition and the
standard of living and to improve public health.--The State
shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public
health as among its primary duties and in particular, the
State shall endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating
drinks and of drugs which are injurious to health.
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48-A. Protection and improvement of environment and
safeguarding of forests and wildlife.--The State shall
endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country.
51-A. (g) To protect and improve the natural environment
including forests, lakes, rivers and wildlife, and to have
compassion for living creatures.'
Apart from the constitutional mandate to protect and improve
the environment there are plenty of post-independence
legislations on the subject but more relevant enactments for
our purpose are: the Water (Prevention and Control of
Pollution) Act, 1974 (the Water Act), the Air (Prevention and
Control of Pollution) Act, 1981 (the Air Act) and the
Environment Protection Act, 1986 (the Environment Act). The
Water Act provides for the Constitution of the Central
Pollution Control Board by the Central Government and the
Constitution of the State Pollution Control Boards by various
State Governments in the country. The Boards function under
the control of the Governments concerned. The Water Act
prohibits the use of streams and wells for disposal of polluting
matters. It also provides for restrictions on outlets and
discharge of effluents without obtaining consent from the
Board. Prosecution and penalties have been provided which
include sentence of imprisonment. The Air Act provides that
the Central Pollution Control Board and the State Pollution
Control Boards constituted under the Water Act shall also
perform the powers and functions under the Air Act. The main
function of the Boards, under the Air Act, is to improve the
quality of the air and to prevent, control and abate air
pollution in the country. We shall deal with the Environment
Act in the latter part of this judgment.
14. In the view of the abovementioned constitutional and
statutory provisions we have no hesitation in holding that the
Precautionary Principle and the Polluter Pays Principle are
part of the environmental law of the country."
19. We are further of the view that it is not necessary for this
Court to monitor this case any further. It can be better done
by the High Court. We, therefore, transfer this petition to the
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High Court to be treated as a petition under Article 226 of the
Constitution of India and to be dealt with in accordance with
law. We request the Chief Justice of the Bombay High Court to
constitute a "Green Bench" for the purpose of adjudicating the
environmental matters filed in the Bombay High Court. On
our suggestion, "Green Benches" are already functioning in
Calcutta, Madhya Pradesh, Madras, Allahabad and Punjab
High Courts. While monitoring this matter, the High Court
shall deal with the hazardous and noxious industries
operating in the Dahanu Taluka in accordance with law,
keeping in view the town/regional plan, the Government of
India notifications and the NEERI report. It will be open to the
State Government to approach the High Court for any
clarification, if necessary."
Karnataka Industrial Areas Development Board v. C.
Kenchappa, (2006) 6 SCC 371
"67. A nation's progress largely depends on development,
therefore, the development cannot be stopped, but we need to
control it rationally. No Government can cope with the
problem of environmental repair by itself alone; people's
voluntary participation in environmental management is a
must for sustainable development. There is a need to create
environmental awareness which may be propagated through
formal and informal education. We must scientifically assess
the ecological impact of various developmental schemes. To
meet the challenge of current environmental issues, the entire
globe should be considered the proper arena for
environmental adjustment. Unity of mankind is not just a
dream of the enlightenment but a biophysical fact.
73. The need of the hour is inculcating a sense of urgency in
implementing the rules relating to environmental protection
which are not strictly followed. Its result would be disastrous
for the health and welfare of the people.
The public trust doctrine
83. The concept of public trusteeship may be accepted as a
basic principle for the protection of natural resources of the
land and sea. The public trust doctrine (which found its way
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in the ancient Roman Empire) primarily rests on the principle
that certain resources like air, sea, water and the forests have
such a great importance to the people as a whole that it would
be wholly unjustified to make them a subject of private
ownership. The said resources being a gift of nature should be
made freely available to everyone irrespective of their status in
life. The doctrine enjoins upon the Government and its
instrumentalities to protect the resources for the enjoyment of
the general public.
85. In M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] this
Court dealt with the public trust doctrine in great detail. The
Court observed as under: (SCC p. 413, para 35)
"35. We are fully aware that the issues presented in this case
illustrate the classic struggle between those members of the
public who would preserve our rivers, forests, parks and open
lands in their pristine purity and those charged with
administrative responsibilities who, under the pressures of the
changing needs of an increasingly complex society, find it
necessary to encroach to some extent upon open lands
heretofore considered inviolate to change. The resolution of
this conflict in any given case is for the legislature and not the
courts. If there is a law made by Parliament or the State
Legislatures the courts can serve as an instrument of
determining legislative intent in the exercise of its powers of
judicial review under the Constitution. But in the absence of
any legislation, the executive acting under the doctrine of
public trust cannot abdicate the natural resources and
convert them into private ownership, or for commercial use.
The aesthetic use and the pristine glory of the natural
resources, the environment and the ecosystems of our country
cannot be permitted to be eroded for private, commercial or
any other use unless the courts find it necessary, in good
faith, for the public good and in public interest to encroach
upon the said resources."
87. The public trust doctrine primarily rests on the principle
that certain resources like air, sea, waters and the forests
have such a great importance to the people as a whole that it
would be wholly unjustified to make them a subject of private
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ownership. The said resources being a gift of nature, they
should be made freely available to everyone irrespective of the
status in life. The doctrine enjoins upon the Government to
protect the resources for the enjoyment of the general public
rather than to permit their use for private ownership or
commercial purposes. According to Professor Sax the public
trust doctrine imposes the following restrictions on
governmental authority:
"Three types of restrictions on governmental authority are
often thought to be imposed by the public trust: first, the
property subject to the trust must not only be used for a
public purpose, but it must be held available for use by the
general public; second, the property may not be sold, even for
a fair cash equivalent; and third the property must be
maintained for particular types of uses."
95. The directions which have been given in the impugned
judgment are perhaps on the lines of directions given by this
Court in M.C. Mehta v. Union of India [(1997) 3 SCC 715] .
This Court observed that the preventive measures have to be
taken keeping in view the carrying capacity of the ecosystem
operating in the environmental surroundings under
consideration. Badkhal and Surajkund lakes are popular
tourist resorts almost next door to the capital city of Delhi.
Two expert opinions on the record--by the Central Pollution
Control Board and by NEERI make it clear that the large-scale
construction activity in the close vicinity of the two lakes is
bound to cause adverse impact on the local ecology. NEERI
has recommended green belt at one km radius all around the
two lakes.
100. The importance and awareness of environment and
ecology is becoming so vital and important that we, in our
judgment, want the appellant to insist on the conditions
emanating from the principle of "Sustainable Development":
(1) We direct that, in future, before acquisition of lands for
development, the consequence and adverse impact of
development on environment must be properly comprehended
and the lands be acquired for development that they do not
gravely impair the ecology and environment.
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(2) We also direct the appellant to incorporate the condition of
allotment to obtain clearance from the Karnataka State
Pollution Control Board before the land is allotted for
development. The said directory condition of allotment of
lands be converted into a mandatory condition for all the
projects to be sanctioned in future.
103. The concept of sustainable development was propounded
by the "World Commission on Environment and
Development", which very aptly and comprehensively defined
it as "development that meets the needs of the present without
compromising the ability of future generations to meet their own
needs". Survival of mankind depends on following the said
definition in letter and spirit.
T.N. Godavarman Thirumulpad v. Union of India, (2002)
10 SCC 606
17. Article 48-A in Part IV (Directive Principles) of the
Constitution of India brought by the Constitution (Forty-
second Amendment) Act, 1976, enjoins that "State shall
endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country". Article 47
further imposes the duty on the State to improve public health
as its primary duty. Article 51-A(g) imposes "a fundamental
duty" on every citizen of India to protect and improve the
natural "environment" including forests, lakes, rivers and
wildlife and to have compassion for living creatures. The word
"environment" is of broad spectrum which brings within its
ambit "hygienic atmosphere and ecological balance". It is,
therefore, not only the duty of the State but also the duty of
every citizen to maintain hygienic environment. The State, in
particular has a duty in that behalf and to shed its
extravagant unbridled sovereign power and to forge in its
policy to maintain ecological balance and hygienic
environment. Article 21 protects right to life as a fundamental
right. Enjoyment of life and its attainment including the right
to life with human dignity encompasses within its ambit, the
protection and preservation of environment, ecological balance
free from pollution of air and water, sanitation without which
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life cannot be enjoyed. Any contra acts or actions would cause
environmental pollution. Therefore, hygienic environment is
an integral facet of right to healthy life and it would be
impossible to live with human dignity without a humane and
healthy environment. Environmental protection, therefore, has
now become a matter of grave concern for human existence.
Promoting environmental protection implies maintenance of
the environment as a whole comprising the man-made and
the natural environment. Therefore, there is constitutional
imperative on the Central Government, State Governments
and bodies like municipalities, not only to ensure and
safeguard proper environment but also an imperative duty to
take adequate measures to promote, protect and improve the
man-made environment and natural environment.
26. The tragedy of the predicament of the civilized man is that
"Every source from which man has increased his power on
earth has been used to diminish the prospects of his
successors. All his progress is being made at the expense of
damage to the environment which he cannot repair and
cannot foresee."
There is increase in awareness of the compelling need to
restore the serious ecological imbalances introduced by the
depredations inflicted on nature by man. The state to which
the ecological imbalance and the consequent environmental
damage have reached is so alarming that unless immediate,
determined and effective steps were taken, the damage might
become irreversible. In his foreword to International Wildlife
Law, M.R.M. Prince Philip, the Duke of Edinburgh said:
"Many people seem to think that the conservation of nature is
simply a matter of being kind to animals and enjoying walks
in the countryside. Sadly, perhaps, it is a great deal more
complicated than that.... As usual with all legal systems, the
crucial requirement is for the terms of the conversions to be
widely accepted and rapidly implemented.... Regretfully
progress in this direction is proving disastrously slow." (See
International Wildlife Law by Simon Lyster, Cambridge,
Grotius Publications Ltd., 1985 Edn.)
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33. In Divisional Forest Officer v. S. Nageswaramma [(1996) 6
SCC 442] it was observed that the renewal of lease is not a
vested right of the lessee. There is a total prohibition against
the grant of mining lease in a forest area without concurrence
of the Central Government. As was observed by this Court in
M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] our legal system
based on English common law includes the public trust
doctrine as part of its jurisprudence. The State is the trustee
of all natural resources which are by nature meant for public
use and enjoyment. The public at large is the beneficiary of
the seashore, running waters, air, forests and ecologically
fragile lands. The State as a trustee is under a legal duty to
protect the natural resources. These resources meant for
public use cannot be converted into private ownership.
Deepak Kumar v. State of Haryana, (2012) 4 SCC 629
23. The Ministry of Mines, Government of India sent
Communication No. 296/7/2000/MRC dated 16-5-2011
called "Environmental Aspects of Quarrying and of Minor
Minerals--Evolving of Model Guidelines" along with a draft
model guidelines calling for inputs before 30-6-2011. Draft
rules called Minor Minerals Conservation and Development
Rules, 2010 were also put on the website. Further, it may be
noted that Section 15(1-A)(i) of the Act specifies:
"15. (1-A)(i) the manner in which rehabilitation of flora and
other vegetation such as trees, shrubs and the like destroyed
by reason of any quarrying or mining operations shall be
made in the same area or in any other area [once] selected by
the State Government (whether by way of reimbursement of
the cost of rehabilitation or otherwise) by the person holding
the quarrying or mining lease;"
24. We are of the view that all State Governments/Union
Territories have to give due weight to the abovementioned
recommendations of MoEF which are made in consultation
with all the State Governments and Union Territories. The
Model Rules of 2010 issued by the Ministry of Mines are very
vital from the environmental, ecological and biodiversity point
of view and therefore the State Governments have to frame
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proper rules in accordance with the recommendations, under
Section 15 of the Mines and Minerals (Development and
Regulation) Act, 1957.
25. Quarrying of river sand, it is true, is an important
economic activity in the country with river sand forming a
crucial raw material for the infrastructural development and
for the construction industry but excessive instream sand and
gravel mining causes the degradation of rivers. Instream
mining lowers the stream bottom of rivers which may lead to
bank erosion. Depletion of sand in the streambed and along
coastal areas causes the deepening of rivers which may result
in destruction of aquatic and riparian habitats as well.
Extraction of alluvial material as already mentioned from
within or near a streambed has a direct impact on the
stream's physical habitat characteristics.
26. We are of the considered view that it is highly necessary to
have an effective framework of mining plan which will take
care of all environmental issues and also evolve a long-term
rational and sustainable use of natural resource base and also
the bio-assessment protocol. Sand mining, it may be noted,
may have an adverse effect on biodiversity as loss of habitat
caused by sand mining will affect various species, flora and
fauna and it may also destabilise the soil structure of river
banks and often leaves isolated islands. We find that, taking
note of those technical, scientific and environmental matters,
MoEF, Government of India, issued various recommendations
in March 2010 followed by the Model Rules, 2010 framed by
the Ministry of Mines which have to be given effect to,
inculcating the spirit of Article 48-A and Article 51-A(g) read
with Article 21 of the Constitution.
28. The Central Government also should take steps to bring
into force the Minor Minerals Conservation and Development
Rules, 2010 at the earliest. The State Governments and UTs
also should take immediate steps to frame necessary rules
under Section 15 of the Mines and Minerals (Development and
Regulation) Act, 1957 taking into consideration the
recommendations of MoEF in its Report of March 2010 and
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model guidelines framed by the Ministry of Mines,
Government of India. Communicate the copy of this order to
MoEF, Secretary, Ministry of Mines, New Delhi; Ministry of
Water Resources, Central Government Water Authority; the
Chief Secretaries of the respective States and Union
Territories, who would circulate this order to the Departments
concerned.
29. We, in the meanwhile, order that leases of minor minerals
including their renewal for an area of less than five hectares
be granted by the States/Union Territories only after getting
environmental clearance from MoEF. Ordered accordingly.
45. It is evident from the discussion so made by the
Hon'ble Apex Court, the basic object in making observation
is to maintain the core of the environment.
46. All these judgments passed by Hon'ble Apex Court
are on the issue of protecting the ecology, the flora and
fauna and the natural resources due to the reason that if
the same will not be put to check, the impact will be
indiscriminate, uninterrupted and the same will cause
deforestation which will ultimately lead to affect the fauna
and thereby the entire ecology will become imbalanced.
47. The larger bench constituting 9 Judges of the
Hon'ble Apex Court in the case of Mineral Area
Development Authority v. SAIL, (2024) 10 SCC 1 while
appreciating the issue of royalty has categorically held that
Under the MMDR Act, the Central Government, acting as a
public trustee of minerals, regulates prospecting and
mining operations in public interest and the legislation
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seeks to increase awareness of the compelling need to
restore the serious ecological imbalance and protect against
damage being caused to the nature. The Hon'ble Apex
Court while taking a leaf from the judgment rendered in the
case of Pradeep S. Wodeyar v. State of Karnataka
(2021) 19 SCC 62 has further observed that the essence of
the MMDR Act is to protect humankind and every species
whose existence depends on natural resources from the
destruction which is caused by rapacious and unregulated
mining. For ready reference the relevant paragraphs are
being quoted as under:-
"62. The Central Government or the State Government may not
always be the "owner" of the underlying minerals. But the
Constitution empowers both Parliament (under List I Entry 54)
and the State Legislatures (under List II Entry 23) to regulate
mines and mineral development, the entrustment to the State
being subject to the power of Parliament to regulate the domain.
The Constitution has entrusted the Union and the States with the
responsibility to regulate mines and mineral development in
consonance with the principles of the public trust doctrine and
sustainable development of mineral resources. Under the MMDR
Act, the Central Government, acting as a public trustee of
minerals, regulates prospecting and mining operations in public
interest. [State of Rajasthan v. Gotan Lime Stone Khanji Udyog (P)
Ltd., (2016) 4 SCC 469, para 29; Orissa Mining Corpn. Ltd. v.
Union of India, (2013) 6 SCC 476, para 58] In the process, the
legislation seeks to increase awareness of the compelling need to
restore the serious ecological imbalance and protect against
damage being caused to the nature. [State (NCT of Delhi) v. Sanjay,
(2014) 9 SCC 772, para 32 : (2014) 5 SCC
63. In Pradeep S. Wodeyar v. State of Karnataka [Pradeep S.
Wodeyar v. State of Karnataka, (2021) 19 SCC 62, para 49.3] , one
of us (D.Y. Chandrachud, J.) observed that the essence of the
MMDR Act is to "protect humankind and every species whose
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existence depends on natural resources from the destruction
which is caused by rapacious and unregulated mining". The Court
noted that the restrictions under Section 4 of the MMDR Act are
intrinsically meant to protect the environment and communities
who depend on the environment.
64. The principle that the Union and State Governments act as
public trustees of mineral resources has been incorporated in the
MMDR Act. Section 4-A empowers the Central Government to
prematurely terminate a prospecting licence, exploration licence,
or mining lease, after consultation with the State Government in
the interests of:
(i) the regulation of mines and mineral development;
(ii) preservation of the natural environment;
(iii) control of floods;
(iv) prevention of pollution;
(v) avoiding danger to public health or communications;
(vi) ensuring the safety of buildings, monuments or other
structures;
(vii) conservation of mineral resources; and
(viii) maintaining safety in the mines or for such other purposes. [
See State of Haryana v. Ram Kishan, (1988) 3 SCC 416, para 7.
This Court observed that Section 4-A : (SCC p. 420, para 7)"7. ...
was enacted with a view to improve the efficiency in this regard
and with this view directs consultation between the Central
Government and the State Government. The two Governments
have to consider whether premature termination of a particular
mining lease shall advance the object or not, and must, therefore,
take into account all considerations relevant to the issue, with
reference to the lease in question."]
Moreover, the MMDR Act now mandates grant of mining leases, [
MMDR Act, Section 10-B] exploration licences, [ MMDR Act,
Section 10-BA] and composite licences [ MMDR Act, Section 11] in
respect of notified minerals through the process of auction. The
Central Government is empowered to prescribe the terms and
conditions subject to which the auction shall be conducted.
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65. The regulatory regime under the MMDR Act recognises the
important role of the State in regulating mines and mineral
development. This emerges from the standpoint of the following
perspectives:
(i) the State is a public trustee of natural resources, including
minerals;
(ii) pursuant to its role as a public trustee, the State has been
empowered to regulate prospecting and mining operations;
(iii) the provisions of the statute reflect the priority of the State to
regulate mining and related activities to ensure sustainable
mineral development;
(iv) prospecting and mining operations may be carried out by both
the government as well as private lessees bearing in mind the
public interest; and
(v) the Government has to ensure that mineral concessions are
granted in a fair and transparent manner."
48. Therefore, the legislation has also been made by
way of Mines and Minerals (Development and Regulation)
Act, 1957 for the basic object of regulation of mines and the
development of minerals. The object of MMDR Act 1957 has
been taken note by the Hon'ble Apex Court in the case of
Common Cause v. Union of India, (2017) 9 SCC 499
wherein it has been observed which reads as under:
"84. Briefly therefore, the overall purpose and objective of the
MMDR Act as well as the Rules framed thereunder is to
ensure that mining operations are carried out in a scientific
manner with a high degree of responsibility including
responsibility in protecting and preserving the environment
and the flora of the area. Through this process, the holder of a
mining lease is obliged to adhere to the standards laid down
under the Environment (Protection) Act, 1986 or the EPA as
well as the laws pertaining to air and water pollution and also
by necessary implication, the provisions of the Forest
(Conservation) Act, 1980 (for short "the FC Act"). Exploitation
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of the natural resources is ruled out. If the holder of a mining
lease does not adhere to the provisions of the statutes or the
rules or the terms and conditions of the mining lease, that
person is liable to incur penalties under Section 21 of the
MMDR Act. In addition thereto, Section 4-A of the MMDR Act
which provides for the termination of a mining lease is
applicable. This provides that where the Central Government,
after consultation with the State Government is of the opinion
that it is expedient in the interest of regulation of mines and
mineral development, preservation of natural environment,
prevention of pollution, etc. then the Central Government may
request the State Government to prematurely terminate a
mining lease.
49. It requires to refer herein that the grant of a mining
lease is governed by the provisions of the Mines and
Minerals (Development and Regulation) Act, 1957 (or the
MMDR Act), the Mineral Concession Rules, 1960 (or the
MCR) and the Mineral Conservation and Development
Rules, 1988 (or the MCDR). Section 4(1) of the MMDR Act
provides that no person shall undertake any mining
operation in any area except under and in accordance with
the terms and conditions of a mining lease granted under
the MMDR Act and the Rules made thereunder. A "mining
operation" is defined in Section 3(d) of the MMDR Act as
meaning any operation undertaken for the purpose of
winning any mineral.
50. Section 4(2) of the MMDR Act provides that no
mining lease shall be granted otherwise than in accordance
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with the provisions of the said Act and the Rules made
thereunder.
51. Section 5(2) of the MMDR Act provides for certain
restrictions on the grant of a mining lease. It provides that
the State Government shall not grant a mining lease unless
it is satisfied that the applicant has a mining plan duly
approved by the Central Government or the State
Government in respect of the mine concerned and for the
development of mineral deposits in the area concerned.
52. Section 10 of the MMDR Act provides for the
procedure for obtaining a mining lease and sub-section (1)
thereof provides that an application is required to be made
for a mining lease in respect of any land in which the
mineral vests in the Government and the application shall
be made to the State Government in the prescribed form
and along with the prescribed fee.
53. Section 18 of the MMDR Act makes it the duty of
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 the
environment by preventing or controlling any pollution
which may be caused by mining operations. The MCDR are
framed in exercise of power conferred by Section 18 of the
MMDR Act.The distinction between the MCR and the MCDR
is that the MCR deal, inter alia, with the grant of a mining
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lease and not commencement of mining operations.
However, the MCDR deal, inter alia, with the
commencement of mining operations and protection of the
environment by preventing and controlling pollution which
might be caused by mining operations.
54. Clause 11-C of MCR is of some importance and it
requires that the lessee shall take measures for the
protection of the environment like planting of trees,
reclamation of land, use of pollution control devices and
such other measures as may be prescribed by the Central
Government or the State Government from time to time at
the expense of the lessee.
55. Rule 9 of the MCDR prescribes that no person shall
commence mining operations in any area except in
accordance with a mining plan approved under Clause (b)
of sub-section (2) of Section 5 of the MMDR Act.The mining
plan may be modified in terms of Rule 10 of the MCDR in
the interest of safe and scientific mining, conservation of
minerals or for protection of the environment. However, the
application for modifications shall set forth the intended
modifications and explain the reasons for such
modifications. The mining plan cannot be modified just for
the asking.
56. Rule 41 of the MCDR requires every holder of a
mining lease to carry out mining operations in such a
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manner as to cause least damage to the flora of the area
and the nearby areas. Every holder of a mining lease is
required to take immediate measures for planting not less
than twice the number of trees destroyed by reason of any
mining operations and to look after them during the
subsistence of the lease after which these trees shall be
handed over to the State Forest Department or any other
appropriate authority. The holder of a mining lease is also
required to restore, to the extent possible, other flora
destroyed by the mining operations.
57. The State has also been casted duty and as per the
conferment of power under Section 15 of the MMDR Act,
1957, the State has also come out with the rule known as
Jharkhand Minor Mineral Concession Rules, 2004.
58. Further, the MMDR Act has also taken care of by
conferring power under Section 23(c) upon the State to
formulate a rule in order to put check on illegal
transportation and illegal storage of the minerals. All these
are to be taken together and for the aforesaid purpose, the
direction has been passed by the Hon'ble Apex Court in the
judicial side to strictly implement the statutory command
to achieve the object and intent of the Act so as to maintain
the environmental issue by way of conservation of the flora
and the natural resources, otherwise the entire ecology will
become imbalanced.
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59. Thus, the overall purpose and objective of the
MMDR Act as well as the Rules framed thereunder is to
ensure that mining operations are carried out in a scientific
manner with a high degree of responsibility including
responsibility in protecting and preserving the environment
and the flora of the area. Through this process, the holder
of a mining lease is obliged to adhere to the standards laid
down under the Environment (Protection) Act, 1986 or the
EPA as well as the laws pertaining to air and water
pollution and also by necessary implication, the provisions
of the Forest (Conservation) Act, 1980 (for short "the FC
Act"). Exploitation of the natural resources is ruled out,
reference in this regard may be made to the judgment
rendered by the Hon'ble Apex Court in the case of Common
Cause v. Union of India (supra).
60. In the backdrop of the aforesaid settled position of
law this Court is now adverting to the factual aspect of the
present case, the writ petitioner although had made an
application before the competent authority of the State
Government for getting a lease license for stone mining in
the Saranda Forest area, Chaibasa in the district of West
Singhbhum.
61. The State although has issued consent to operate
but the petitioner when made application before the SEIAA
for getting the Environment Clearance, it has been refused
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by passing an order based upon the Management Plan for
Sustainable Mining wherein the area has been made
eco-sensitive zone.
62. Learned counsel appearing for the petitioner,
however, has submitted that the said report is only for the
purpose to put check upon the mining of iron ore and the
manganese which cannot be made applicable in the matter
of mining of stone falling under the Saranda Forest area
but we are not in agreement with the said ground, reason
being that when the issue of forest conservation is there
then entire thing is to be taken into consideration as to how
the forest area is to be saved.
63. If the contention of the writ petitioner will be
accepted, then the very purpose of constitution of the
Commission of Hon'ble Justice M.B. Shah will be frustrated
which has been constituted only for the purpose of
protecting the forest area which has been considered to be
the dense forest area of the region.
64. The Ministry of Environment and Forest has
constituted a Commission for the purpose of Management
Plan for Sustainable Mining in Saranda Forest, Chaibasa in
the Singhbhum West district. We, after going through the
same, have found that the iron ore and the manganese
have been considered but allowing for stone mining will be
proper or not in the context of report submitted by Hon'ble
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Justice M.B.Shah Commission that has to be considered
and the very purport on which the policy has been made by
way of Management Plan for Sustainable Mining wherein it
has specifically been assigned that the entire area is eco-
sensitive zone and the area requires conservation.
65. Learned counsel appearing for the Union of India
has brought to the notice of this Court Page No.45 of the
counter affidavit filed on behalf of respondent Ministry of
Environment and Forest wherein the entire area has been
said to be conservation area/no mining zone.
66. In view of the aforesaid specific reference made in
the said report earmarking the same to be the conservation
area as also earmarking it to be no mining zone, then the
question is that how can the stone mining can be allowed
to be carried out in view of the said finding recorded in the
said MPSM in which the consideration has been given with
respect to designation of mining zone, conservation area
and no mining zone.
67. It would be evident from the said plan that the
recommendation has also been given not to grant fresh
leases in Saranda Forest although with respect to the iron
ore and manganese, but when such is the intention of the
said plan based upon the Hon'ble Justice M.B. Shah
Commission report, which is on the premise of the fact
that in the aforesaid area Saal trees and associates which
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were existing are already destroyed and it has affected the
environment. Hence, capping of production in each mine is
a must.
68. It has also been taken into consideration in the
report of Hon'ble Justice M.B. Shah Commission that the
"right to life is a fundamental right under Article 21 of the
Constitution of India and it includes the right to enjoyment of
pollution-free water and air for full enjoyment of life. The
protection of this right is directly linked with clean
environment. It is the duty of the State and citizens to
improve the natural environment, including forests, lakes,
rivers and wildlife, and to have compassion for living
creatures. This would require that habitats of wildlife should
not be disturbed; river, lake, water and air should not be
polluted." Therefore, in that premise direction has been
issued that "before carrying out any mining operation,
Comprehensive Environmental Management Plans must be
formulated to the satisfaction of, and got approved from, the
Ministry of Environment & Forests in a time bound manner".
It has also been referred in the said report that "there
should be a balance between preservation and utilization
that would indeed a matter for an expert body to examine".
69. The consideration has also been given that the
entire area is a part of notified elephant reserve. Most of the
mines are very close to the rivers or natural streams and in
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many of the cases, streams are either passing through or
quite close by the leased area and catchments area.
70. We are conscious that all these observations have
been made with respect to the mines of iron ore and the
manganese but the question is that if such restriction is
there for the mining of the iron ore and the manganese
then whether the other mining operation of the stone etc.
can be allowed? If the same will be allowed then what will
happen to the Saranda Forest which is admittedly having
wildlife and is one of the finest elephant habitats. If the
same will be allowed then the entire Saranda Forest will be
destroyed.
71. Allowing the mining operation will further lead to
destroying the environment and thereby the principle of
inter-generational equity that present generation has a
solemn responsibility to protect and improve the
environment for the present and future generations will
ultimately be jeopardized and not only jeopardized, we will
go into a situation from where the same cannot be repaired.
Therefore, it is the duty of the present generation to
safeguard the natural resources of the earth through
careful planning and to undertake to pass on to the future
generations.
72. This Court, therefore, is of the view that if such is
the consideration as is evident from the impugned decision
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taken by the SEIAA for the purpose for which the SEIAA
has been constituted and fully relying upon the purport of
the MPSM based upon the Hon'ble Justice M.B. Shah
Commission report, the same cannot be said to suffer from
an error.
73. Further, for the reason SEIAA, Jharkhand has been
instituted for the aforesaid purpose as would be evident
from the very object for which the SEIAA, Jharkhand has
been established in the year 2006 which is being referred
herein :-
"... ... ... for imposing certain restrictions and
prohibitions on new projects or activities, or on the
expansion or modernization of existing projects or activities
based on their potential environmental impacts as indicated
in the Schedule to the notification, being undertaken in any
part of India', unless prior environmental clearance has been
accorded in accordance with the objectives of National
Environment Policy as approved by the Union Cabinet on
18th May, 2006 and the procedure specified in the
notification, by the Central Government or the State or
Union Territory Level Environment Impact Assessment
Authority (SEIAA), to be constituted by the Central
Government in consultation with the State Government or
the Union Territory Administration concerned ... ..."
74. The SEIAA since has been established to assess the
environmental impact and as such it is the authority of
SEIAA to take its subjective satisfaction for the purpose of
granting Environment Clearance.
75. Learned counsel for the petitioner has submitted
that other mining is being carried out without any check
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and, as such, putting restriction or not allowing the
Environment Clearance to the petitioner is nothing but in
the teeth of Article 14 of the Constitution of India. But, we
are not in agreement with such submission merely for the
reason that if the State has committed any illegality or the
Environment Clearance has been given to others, then it is
the subject matter of reviewing the decision so that the
same can be taken care of by putting restriction upon the
same to have the foremost consideration for the purpose of
saving the environment.
76. Since we are considering the legality and propriety
of the decision taken by the SEIAA as has been alleged on
behalf of the writ petitioner, but based upon the aforesaid
reason, the question of issuance of writ of certiorari is not
fit to be issued for the reason that the decision so taken by
the SEIAA cannot be said to suffer either from the
perversity or in violation of principle of natural justice or
contrary to any statutory mandate, rather, the same is in
consonance with the object of different environmental laws
as also the very purport for which the Commission has
been constituted headed by Hon'ble Justice M.B. Shah.
77. This Court, therefore, is of the view that the
decision so taken by the SEIAA needs no interference.
78. So far as carrying out the other mining operation is
concerned, the competent authority of the SEIAA or the
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State Government or the Union of India through the
Principal Secretary, Ministry of Environment, Forest and
Climate Change has to take care by taking follow up action
in this regard.
79. The instant writ petition stands disposed of.
I agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
A.F.R.
Birendra/
