Jatinder Singh And Ors vs Union Of India And Ors

Writ Petition No. 688 of 2013 titled as Jatinder Singh & Anr v. Union of India & Ors. was filed before the Hon'ble Supreme Court of India challenging the constitutionality of and for striking down the EIA Notification dated 4th April, 2011 (for short 'Notification of 2011') issued by Ministry of Environment, Forests & Climate Change (for short MOEF). The petitioners were erstwhile holders of mineral contract and mineral concessions, severally or jointly, in the district Kurukshetra and district Saharanpur falling in the States of Haryana and Uttar Pradesh respectively.

Civil Writ Petition No. 20134 of 2004 titled as Vijay Bansal v. State of Haryana as well as Civil Writ Petition No. 4758 of 2008 titled as Chandi Mandir Stone Crushers Company v. State of Haryana & Ors. were filed before the High Court of Punjab and Haryana with a prayer that the Court should pass directions to stop and investigate the indiscriminate and callous mining operations in the lower Shivalik Hills in district Panchkula. It was averred in these Writ Petitions that keeping in view the physical features of the region particularly districts Panchkula, Ambala and Yamunanagar, the Punjab Land Preservation Act, 1900 (for short 'PLPA 1900') was enacted to notify the areas for conservation of sub-soil water and prevention of erosion. Reports were filed before the Court to show that indiscriminate and illegal mining was going on in these areas.

It was prayed in these Writ Petitions that various regulatory measures should be taken to curb illegal mining. It has been averred that despite an unequivocal prohibition against mining in the subject area imposed by the Forest Department on the recommendations made by the committee constituted to conduct survey and submit report on the areas feasible for mining, the entire area has become a den of the 'mining mafia' who operates under the alleged political patronage and minerals worth crores of rupees are being illegally extracted in connivance with and/or tacit support of enforcement authorities/agencies, including the District Administration.

These Writ Petitions had been contested by various authorities and the Punjab and Haryana High Court vide a detailed Judgement dated 15th May, 2009 disposed of the Writ Petitions with certain directions. The direction contained in para 57 of the Judgment reads as under:

"[57]To sum up, both these petitions are disposed of with the following consolidated directions:-

(i) the lands/areas forming part of the notification under section 3 of the Punjab Land Preservation Act, 1900 and in respect of which restrictions have been imposed under Section 4 of the said Act are declared to be "forest lands" for the purposes of the Indian Forest Act, 1927 and the Forest (Conservation) Act, 1980. It is, accordingly, directed that these areas shall not be used for 'non forest purposes' including the mining of 'major' or 'minor' minerals;

(ii) Notification dated 14.9.2006 issued by the Central Govt. in exercise of its powers under the Environment (Protection) Act, 1986 governs all the 'mining activities' irrespective of the fact that the 'minerals' are 'major' or 'minor' and is, thus, fully applicable in respect of the 'mining areas' in the Shivalik ranges of Himalayas, including those falling in District Panchkula. No mining activity shall be carried out in these areas without the 'prior environmental clearance', save beyond the maximum period granted hereinafter for obtaining such 'prior environmental clearance'.

(iii) the State of Haryana and the State Level Expert Appraisal Committee are directed to enforce the Notification dated 14.9.2006 qua all the 'mining areas' and monitor the mining operations regularly and vigorously so as to bring them in conformity with the terms and conditions imposed while granting the prior environmental clearance;

(iv) Notification dated 14.9.2006 is directed to be applied qua those 'mining areas' also where the 'mining activities' used to be undertaken prior to its issuance and every new contract/licence/lease permitting the 'mining' shall be taken as a 'new activity' for the purpose of the said notification;

(v) it is also directed that wherever the 'total mining area' is a homogeneous or otherwise identifiable piece of 50 hectares or above, the Notification dated 14.9.2006 shall be enforceable even if such mining area has been divided into zones or quarrying plots of smaller sizes.

(vi) the State of Haryana is directed to apply to the 'Expert Appraisal Committee' for determining the Terms of Reference (TOR) and get the Environment Impact Assessment Report (EIAR) prepared for the entire 'mining area' falling within the fragile Shivalik ranges of Himalayas and then complete the process of 'public consultation', prescribed as Stage No.III in the Central Govt. notification dated 14.9.2006 and thereafter get a final Environment Impact Assessment Report prepared. The State Government shall submit the application, complete in all respects, before 31st August, 2009;

(vii) we also direct that no public auction shall be held and no licence/contract/lease or right for extraction of minerals from the Shivalik ranges of Himalayas shall be granted by the State of Haryana until the final 'Environment Impact Assessment Report' is prepared and made available as a public document to the prospective bidders;

(viii) every successful bidder shall be required, and be under a legal obligation, to apply along with a copy of the final Environment Impact Assessment Report and obtain the 'prior environmental clearance', and then abide by the Terms and Conditions as may be imposed by the 'Expert Appraisal Committee'. No lease/licence/contract shall attain finality unless 'prior environmental clearance' is granted and the project proponent undertakes the responsibility to comply with the terms and conditions as may be imposed by the Expert Appraisal Committee. The Project Proponents/ successful bidders shall apply for 'prior environmental clearance' within one month from the date of auction;

(ix) the Govt. of Haryana shall be entitled to recover the expenditure incurred by it in the compliance of stage Nos.(I) to (III) (whichever is applicable) prescribed in the Central Govt. notification dated 14.9.2006 for obtaining the 'prior environmental clearance' including the expenditure incurred on 'public consultation' or the preparation of the tentative and/or final 'Environment Impact Assessment Report', proportionately from the successful bidders;

(x) the Expert Appraisal Committee is directed to prepare the final Environment Impact Assessment Report (EIAR) within a period of six months from the date of receipt of the application from the State Government and thereafter to grant or reject the 'prior environmental clearance' within a period of two months from the date of receipt of the application of the project proponent/successful bidders;

(xi) having regard to all the attending circumstances and to obviate varied hardships caused to the general public, labour and the State, we direct that the mining activities may continue till 28th February, 2010, however, only on the basis of the contract/licence granted to the highest bidders through a transparent 'public auction' held after wide publicity and subject to the terms and conditions, as are imposed while granting a five-year contract and further subject to strict compliance of such terms and conditions;

(xii) we clarify that the State of Haryana shall not stand absolved of its legal obligation on mere successful accomplishment of the Fourth Stage enumerated in the Central Govt. notification dated 14.9.2006 and it shall continue to enforce the measures contained in the Forest Department's notifications dated 27.11.1997 and 28.11.1997 (Annexures P-2 & P-3) issued under Sections 3 and 4 of the Punjab Land Preservation Act, 1990, respectively."

MoEF had issued a Notification dated 14th September, 2006 (for short 'Notification of 2006') notifying that various activities and projects covered under the category 'A' and/or 'B' of the said Notification would require prior Environmental Clearance (for short 'EC'). In terms of the said Notification of 2006, under Entry 1 (a), projects in relation to mining of minerals which are equal to or more that 50 hectare would fall under category 'A' and thus, would be required prior EC from MoEF. The projects of mining in an area more than 5 hectares but less than 50 hectares for non-coal mining activities, with which we are concerned in the present case were to fall under category 'B' and required the EC from the State Environment Impact Assessment Authority (for short 'SEIAA'). This entry does not reflect as to whose responsibility it is to seek prior EC. The Schedule as appended to the Notification of 2006 only refers to the word "project or activity and conditions to govern such Clearance". Under Para 2 of the Notification of 2006, the project or activities shall require prior EC from the concerned regulatory authority. However other provisions of this Notification do refer to the Project Proponent.

Vide Notification of 2011, para 6 was amended to substitute the words "an application seeking prior Environmental Clearance in all cases shall be made" by the words "an application seeking prior Environmental Clearance in all cases shall be made by the Project Proponent". The petitioners who were aggrieved from this amendment filed this Writ Petition before the Hon'ble Supreme Court of India. According to them the onus to apply for EC was upon the State which grants mining leases for extraction of minor minerals to the parties.

Further it was contended that the Notification of 2011 was in conflict with the judgment dated 15th May, 2009 of the Hon'ble Punjab and Haryana High Court. Inter alia it also raised other grounds for quashing the Notification of 2011 while stating that the areas could not be subjected to artificial divisions for the purposes of preparation of Environmental Impact Assessment Report (for short 'EIA Report') and therefore, it was only for the State Government to obtain the EC.

The Punjab and Haryana High Court had passed various directions but upon the cumulative reading of the directions, it cannot be contended that the Punjab and Haryana High Court has placed the entire onus of seeking EC upon the State Government. On the contrary, under direction VIII, the Punjab and Haryana High Court has specifically directed that every bidder shall be required and be under a legal obligation to apply for EC along with a copy of the final EIA Report and abide by the terms and conditions imposed after obtaining EC. However, this and any other contention raised on behalf of the Petitioners should not detain us any further as Writ Petition No. 688 of 2013 came up for hearing before the Supreme Court and parties were heard at length.

During the pendency of this Writ Petition before the Hon'ble Supreme Court of India, Hon'ble Supreme Court vide its order dated 18th September, 2013 had directed the Central Empowerment Committee (for short 'CEC') to submit a detailedreport in relation to the various Interim Applications, Writ Petitions that have been filed before the Hon'ble Supreme Court of India including the appeal against the judgment of the Punjab and Haryana High Court dated 15th May, 2009. The CEC in furtherance to the said order held meetings on 4th October, 2013 and 10th October, 2013 where it heard the parties, including the petitioners in those cases and submitted the report to the Court , including its comments with reference to the Notification of 2011. Relevant discussions, conclusions and recommendations submitted by the CEC before the Hon'ble Supreme Court of India can be appropriately reproduced on this matter:

The CEC is of the view that the EIA Notification, 2006 provides a detailed and comprehensive procedure for examination of proposals seeking grant of environmental clearances. A uniform process / procedure has been prescribed and is being followed in all the States / Union Territories for all the 39 types of project / activities covered in the said Notification. Any interpretation of the EIA Notification, 2006 leading to a separate procedure for grant of the environmental clearance under the said Notification for the mining of the minor minerals in the State of Haryana may not be desirable.

The "Environment Impact Assessment Guidance Manual for Mining of Minerals" published by the MoEF during the February, 2010 (refer Annexure R-4 of this Report) provides detailed guidelines regarding the process and contents in respect of the applications to be filed for seeking environment clearances, determination of Terms of References (TORs), preparation of draft Environment Impact Assessment (EIA) Report including Environment Management Plan (EMP), process of public consultation, preparation of final EIA Report and EMP, appraisal of projects by the EAC / SEAC and grant or rejection of the environmental clearance by the MoEF / SEIAA.

The EIA Notification, 2006 read with the said Manual for Mining Projects provides for carrying out of comprehensive environment impact assessment studies in the mining lease area (core area) and the areas falling within a distance of 10 kms and 5 kms from the boundaries of the mining lease areas of Category 'A' and Category 'B 2' projects respectively (buffer zone).

On perusal of the EIA Notification, 2006 and the above said Manual for Mining of Minerals particularly the Form-I given at Appendix-I of the said Notification (in which the applications seeking environmental clearances are required to be filed), generic structure of environment impact assessment document at Appendix-Ill of the said Notification and Annexure 1 of the above said Manual for Mining of Minerals captioned "Terms of Reference (TOR) for Environmental Impact Assessment for Mining of Minerals Sector" it is seen that for determining the Terms of Reference for the EIA studies the specific details of the mining lease such as the level and scale of production, method of working, number and type of plants and machineries that will be deployed, extent of annual production of minerals and over burden dump, location of over burden dump and mode of transportation as provided in the approved Mining Plan are required and which can be provided only after the Mining Plan for the respective lease area is prepared (and approved).

The CEC, agreeing with the stand taken by the MoEF and also by the State of Haryana is of the view that the applications seeking determination of the Terms and Reference (TORs) for the EIA studies and environmental clearances are, in terms of the EIA Notification, 2006, necessarily required to be filed by the project proponent (and not by the State Government). For carrying out detailed EIA study it is necessary to have a clear recognition of the project proponent, the project area and scope and extent of the proposed mining areas and which will inter alia include details of the mining lease boundaries and buffer zone around it, details provided in the Mining Plan (and approved by the competent authority) such as the details of available mining reserves, extent of mining, place for over burden dumping and other relevant details. The EIA studies which will ascertain the cumulative impact of the proposed mining project along with that of the other existing mining leases and the other projects / activities in the study area and suggest mitigative measures to contain their impact are required to be done with reference to the mining project under consideration for grant of the environmental clearance. The holding of public auction and preparation of Mining Plan by the successful bidder(s) is a pre-requisite for determining the Terms of Reference (TORs) for carrying out the EIA studies and preparation of EIA Report in accordance with the scheme of things as provided in the EIA Notification, 2006. The CEC also agrees with the MoEF that the state being the owner of the minerals and being responsible for approval of the Mining Plan for the minor minerals and ensuring compliances of the stipulated conditions should not play the role of the project proponent itself.

The CEC disagreeing with the petitions in Writ Petition (Civil) No. WP (C) No. 688 of 2013 is of the view that the Notification dated 4th April, 2011 issued by the MoEF is in conformity with the EIA Notification, 2006. What was implicit in the said Notification has been made explicit by Notification dated 4.4.2011. It would not be out of place to mention that while the petitioners have challenged vires of Notification dated 4.4.2011 inter alia on the ground that because of the existing state of flux no mining lease has been auctioned in the State of Haryana during the last four years and which has affected their livelihood adversely, they chose to remain silent regarding environmental clearances granted by the MoEF during May / June, 2010 in favour of M/s S.S. & Company (refer Annexure R- 5 (Colly) of this Report) for mining of 20 million metric tones of minor minerals in Districts Sonepat and Panipat on the basis of the applications filed by the project proponents (and not by the State Government). The CEC is constrained to observe whether the process of this Hon'ble Court is being misused to ensure continued stalemate regarding the process of grant of the environmental clearance and consequent shortage of construction material and which enables the few operating mines to conveniently sale their production at substantially higher rates in and around Haryana.

As stated earlier, this Hon'ble Court by its order dated 10.1.2011 has dismissed the SLP (C): CC No. 20308/2010 filed by the MoEF against the impugned order dated 6.11.2009 of the Hon'ble High Court on the ground of delay and also on merits stating that the said order (applicable for the State of Punjab) is consistent with the Hon'ble High Court's order dated 15.5.2009 in respect of the State of Haryana (the subject matter of the present SLPs).

In the above background the CEC recommends that this Hon'ble Court may consider directing that applications seeking grant of prior environmental clearances for the mining of minor minerals, in terms of the EIA Notification dated 14.9.2006, are required to be made by the project proponents and not by the State of Haryana and that the mining operations shall however continue to be permissible only after the environmental clearances are granted by the competent authority. However, if this Hon'ble Court decides that in terms of the EIA Notification dated 14.9.2006 the applications seeking grant of the environmental clearances for the mining of minor minerals in the State of Haryana shall be made by the State Government and that the auction for the minor minerals shall be held only after preparation of the final EIA Report by the State of Haryana, in that case this Hon'ble Court may consider (a) directing that the same procedure will be followed uniformly in all the States / Union Territories for obtaining environmental clearances; and (b) setting aside the Notification dated 4.4.2011 issued by the MoEF.

The CEC, before concluding, would like to submit the following even though not directly related with the present matter for the consideration of this Hon'ble Court;

i) this Hon'ble Court may consider directing that the applications seeking grant of environmental clearances for the mining of minor minerals as well as that for major minerals should be accepted by the competent authority (MoEF in respect of Category 'A' projects and State Environment Impact Assessment Authority for Category 'B' projects) only through the concerned Departments of the respective State Governments and who should verify the details provided in the application and draft EIA Report. During the meetings convened by the concerned authorities for finalizing the Terms of Reference for the EIA studies as well as that for appraisal, the representative(s) of the concerned Department of the State Government should invariably be invited as a "Special Invitee". This will help towards ensuring that the environmental clearances are not obtained by the project proponents on the basis of factually incorrect information and that the cumulative impact of all the mining projects located in the project study area (10 kms around the mining leases of 50 hectares and above and 5 kms around the mining leases of 5-50 hectares) gets properly reflected in the EIA studies;

ii) 'while grant of the environmental clearances for the mining leases of less than 50 hectare are presently considered by the statutory authorities constituted under the sub-section (3) of Section 3 of the Environmental (Protection) Act, 1986, namely State Environment Impact Assessment Authorities, the environmental clearances for mining leases of 50 hectares and above are considered by the MoEF. It may be desirable to also consider setting up of statutory authority(ies) for dealing with the mining projects with lease areas of 50 hectares and above;

iii) the environmental clearances are invariably granted stipulating a large number of conditions to mitigate and contain the adverse environmental impact of mining in and around the mining lease areas. A monitoring mechanism regarding compliance of the stipulated conditions has also been prescribed. However, effective steps to ensure timely action against the erring project proponent are by and large lacking and which defeats the very purpose of the entire process of the environmental clearances prescribed in the EIA Notification, 2006. This Hon'ble Court may consider directing the MoEF to take immediate remedial measures in this regard so that the stipulated conditions do not remain only on paper and the mining is actually carried out in the field in an environmentally sustainable manner; and

iv) presently the environmental clearances are required for all mining projects of minor minerals irrespective of the lease areas whereas the environmental clearances for major minerals having mining lease areas of less than 5 hectares is not required. This Hon'ble Court may consider directing MoEF to review the present scheme of things particularly considering that the environmental impact of mining of major minerals is in no way less than, if not more, than that of the mining of minor minerals.

This Hon'ble Court may please consider the above Report and may please pass appropriate order in the matter.

After submission of the report by the CEC before the Hon'ble Supreme Court of India and upon hearing the parties, the Supreme Court dismissed the Writ Petition vide its order dated 28th October, 2013 and passed certain further directions in relation to the report of the CEC. Order dated 28th October, 2013 reads as under:

ITEM NO.302 COURT NO.5 SECTION X

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

WRIT PETITION (CIVIL) NO(s). 688 OF 2013

JATINDER SINGHAND ANR

Petitioner(s)

VERSUS

UNION OF INDIA AND ANR

Respondent(s)

(With office report)

Date: 28/10/2013 This Petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE A.K. PATNAIK

HON'BLE MR. JUSTICE SURINDER SINGH NIJJAR HON'BLE MR. JUSTICE FAKKIR MOHAMED

IBRAHIM KALIFULLA

For Petitioner(s)

Mr. V. Giri, Sr. Adv.

Mrs. S. Usha Reddy, Adv.

For Respondent(s)

Mr. Narender Hooda, Sr. Adv.

Dr. Monika Gosain, Adv.

UPON hearing counsel the Court made the following

O R D E R

We have heard learned counsel for the parties.

In this writ petition, the petitioners have prayed for a declaration or any other writ declaring that the Notification dated 4th April, 2011 issued by the respondent No. 10 is unconstitutional. The objection to the said Notification by the petitioners is that the application for environmental clearance should be made by the State which grants lease of the mines and not by the project proponent.

Under the Environment Protection Act and the Rules made thereunder it is for the Central Government to issue the Notification for environmental clearance and if the Central Government has in the Notification provided that the project proponent will apply for environmental clearance and not the State which grants lease of mines, we fail to appreciate as to how the Notification issued by the Central Government is unconstitutional or ultra vires. We, therefore, do not find any merit in the writ petition and, accordingly, dismiss the same.

In para 52 of the Report of the Central Empowered Committee, some suggestions have been made for consideration of this Court. The Ministry of Environment and Forests will file its response to the suggestions by 18.11.2013.

List the matter on 18th November, 2013 for the aforesaid purpose.

The Supreme Court of India in this order found no merit in any of the contentions raised by the petitioners. However, in relation to the recommendations made by the CEC in its report dated 17th October, 2013, comments of MoEF were invited and the matter was to be heard regarding the same only.

The Supreme Court of India in its order dated 10th January, 2011 while dismissing the appeal referred to the judgment of the Punjab and Haryana High Court dated 15th May, 2009.

It is thereafter vide its order dated 5th October, 2015 the Hon'ble Supreme Court of India transferred the case to this Tribunal for hearing the parties and with a further direction that the same may be disposed of expeditiously. This is how Writ Petition No. 688 of 2013 along with the CEC report, came to be admitted and was re-numbered as Original Application No. 495 of 2015 before the National Green Tribunal and we heard the parties on the matters in issue.

From the records before the Tribunal, it appears that the State of Haryana had filed its counter affidavit in the Writ Petition No. 688 of 2013, but it has offered no comments on the recommendations of the CEC. During the course of arguments, no objections were raised in that behalf. MoEF had filed an affidavit submitting its reply to the report of the CEC in terms of the order of the Hon'ble Supreme Court of India dated 28th October, 2013. CEC submitted that applications seeking grant of EC for mining of minor and major minerals should be accepted by the competent authority only through the concerned departments of the respective State Government who should verify the details provided in the application and draft EIA Report. The representatives of the concerned State Department should invariably be invited as a "Special Invitee" at the time of finalisation of the Terms of Reference (for short 'ToR'). The joint action by the State and the Centre would ensure that the EC are not obtained by the Project Proponent on the basis of factually incorrect information. However, too much involvement of the State Government would raise an issue of proper coordination amongst the concerned departments of the State Government.

According to the MoEF, the suggestions of the CEC were being examined by the Ministry including the setting up of a Decision Support System (DSS) which would enable verification of information data contained in the EIA Report. However, no further or formal view of the Ministry has been placed on record.

The grant of EC for mining lease in an area less than 50 hectares is to be given by statutory authority constituted under Sub-Section 3 of Section 3 of Environmental Protection Act, 1986 (for short 'Act of 1986'). It is submitted on behalf of MoEF that the Notification of 2006 deals with the process of grant of EC and is a complete document in itself providing comprehensive mechanism right from filing of the application till the grant or refusal of the EC. It deals with all the stages of Scoping, Screening, Public Consultation and Appraisal. However, with regard to the suggestion of CEC for constitution of exclusive independent regulatory body, it was submitted by MoEF that it is examining under the Act of 1986 in terms of the judgment of the Hon'ble Supreme Court of India dated 6th January, 2014 in Interim Application Nos. 1868, 2091, 2225-2227, 2380, 2568 and 2397 Writ Petition (Civil) No. 202 of 1995 titled T.N.Godavarman Thirumulpad v Union of India & Ors for setting up an independent regulator under section 3 (3) of the Act of 1986. MoEF also stated that the EC which is granted stipulate a large number of conditions to mitigate and control the adverse environmental impact of mining in and around the mining lease areas. It was noticed by the CEC that although the monitoring mechanism regarding compliance of the stipulated conditions provides further effective steps to ensure timely action against the erring project proponent but they are by and large lacking and this defeats the purpose of the entire process of granting the EC. In this regard the MoEF stated that the Project Proponent is required to submit half-yearly compliance report in relation to compliance of stipulated conditions but that in our considered view is not effective and adequate by itself. It is further submitted by MoEF that presently ECs are required for all mining projects of minor minerals irrespective of their lease areas, whereas, EC for lease for mining in areas of major minerals of less than 5 hectares in case of mining of major minerals is not required. It is submitted by CEC that similar condition should be imposed and this disparity between minor mineral and major mineral needs to be examined to bring uniformity. This matter has been examined by MoEF and mining projects of major minerals having mining lease area of less than 5 ha should require prior EC. Necessary Notification in this regard shall be issued soon.

From the above recommendations and suggestions made by the parties before the Tribunal, it is clear that implementation of conditions and supervisory role of the regulatory body, post EC is a matter of serious concern. The disparity between requirement of prior EC for mining of minor and major minerals in areas of less than 5 hectares is not founded on any rational basis.

The role of the State Government or its departments and extent thereto in granting or refusing EC, particularly, at the stage of appraisal and preparation of ToR is a matter which remains part of the grey area in view of the existing statutory provisions. The monitoring of implementation of the conditions stipulated in EC and the mechanism for disposal of EC application do require a re-look to save the time and to ensure appropriate and effective outcomes in accordance with law. The Punjab & Haryana High Court, in the case of Vijay Bansal v. State of Haryana (supra) and M/s Chandi Mandir Stone Crushers Company v. State of Haryana & Ors. (supra) vide its judgment dated 15th May, 2009 had dealt with two questions, one relating to indiscriminate and unsustainable mining in the Shivalik hills and the other in relation to clause 14 of the auction notice. In M/s Chandi Mandir Stone Crushers Company v. State of Haryana & Ors. (supra) the auction notice was also impugned to the extent that it entails pre-payment of 25 per cent of the total bid amount irrespective of grant or refusal of EC. In this judgment, the Punjab and Haryana High Court had passed certain directions with reference to the Notification of 2006 with the intent to expedite the disposal of applications for obtaining the EC. Besides prohibiting any mining activity in the area without prior EC, the Court also directed that every successful bidder shall be required and be under a legal obligation to apply for obtaining the prior EC along with the copy of the EIA Report referred to in the order. This judgment of the Punjab and Haryana High Court was assailed in Special Leave Petition No. 729-731 of 2011 before the Supreme Court of India. A Writ Petition No. 688 of 2013 titled as Jatinder Singh v. Union of India was filed directly before the Supreme Court of India under Article 32 of the Indian Constitution, wherein challenge was raised to the Notification of 2011 issued by MoEF on the ground that the same was unconstitutional along with a prayer that the State Government should be required to seek prior EC.

Still another SLP came up before the Supreme Court against an interim order dated 6th November, 2009 passed by the Punjab & Haryana High Court titled as Union of India v. Pratap Singh Sandhu and Ors. Special Leave Petition (Civil) 1639 of 2011. The Supreme Court vide its order dated 10th January, 2011, while referring to the directions issued by the Punjab & Haryana High Court in that case, proceeded to dismiss the SLP both, on the ground of delay as well as on merits. It may be noticed here that the Supreme Court while passing the above order also noticed that the directions issued by the Punjab & Haryana High Court in the case of Vijay Bansal (supra) are consistent with the order dated 06th November, 2009 and did not find it appropriate to interfere. It will be useful at this stage to reproduce the order of the Supreme Court dated 10th January, 2011 which reads as under:

"ORDER

Feeling aggrieved by interlocutory order dated 6.11.2009 passed by the Division Bench of the Punjab and Haryana High Court, the Union of India through Ministry of Environment and Forests has filed this petition under Article 136 of the Constitution.

It has also filed an application for condonation of 279 days delay. We have heard Shri Haris Beeran and carefully perused the record. In our considered view, the explanation given by the petitioner for delayed filing of the special leave petition is wholly unsatisfactory. The only averment contained in the application is that while appraising the projects in July, 2010, the Expert Appraisal Committee for Environmental Impact Assessment of Mining Projects had made certain observations and an affidavit to this effect was filed in the High Court on 18.9.2010. This type of assertion cannot be treated as sufficient cause for condonation of 279 days delay.

Even on merits, we are convinced that the petitioner's challenge to the directions given by the High Court is thoroughly misconceived and ill-advised and we do not find any valid ground to entertain the same. While examining the prayer made in the writ petition filed by respondent No.1 by way of public interest litigation that the lease for mining minerals should be given by the State Government only after obtaining environmental clearance in terms of the Central Government Notification dated 14.9.2006 issued under the Environment (Protection) Act, 1986, the Division Bench of the High Court gave the following directions:

(1) The Department of Industries and Commerce, Government of Punjab shall within four weeks from today file applications for grant of environmental clearance in Form-I of Appendix-I to notification dated 14.09.2006 in respect of districts Roper, Mohali and Patiala and two months in so far as other districts in the State of Punjab are concerned. Director, Industries and Commerce, Govt. of Punjab, who is present in person shall be personally responsible to ensure that all steps requisite for making the applications for mining areas measuring more than 5 hectares and less than 50 hectares are taken and applications presented without any deficiencies and supported by all information, material and data.

(2) On receipt of the applications from the Director, Department of Industries & Commerce, Punjab, the State Environmental Impact Assessment Authority shall process and forward the same to the State Expert Appraisal Committee within 10 days thereafter. The Member Secretary to the State Expert Appraisal Committee shall be responsible for adhering to the time schedule prescribed for this purpose and ensure that the entire process requisite for forwarding of the applications to the Committee is completed well in time.

(3) On receipt of the applications duly forwarded to it, the State Expert Appraisal Committee shall screen the same and complete a comprehensive study for environmental assessment within a period of 60 days and forward the terms of reference to the applicant/industries department for getting the study conducted by an expert of their choice. The Director, Department of Industries & Commerce would do well to start the process of identifying an expert well in advance to ensure that there is no delay in the conduct of the studies by him once the reference is received back from the committee mentioned above.

(4) The Environmental impact study to be conducted by the expert shall be completed within 90 days from the date reference is made and submitted to the Punjab Pollution Control Board who shall conduct the requisite consultation in terms of the notification and the provisions of the Act and submit the result of the same back to the State Environmental Impact Assessment Authority within a period of 45 days.

(5) The State Environment Impact Assessment Authority shall finally appraise the project and submit its recommendations to the State Expert Appraisal Committee within 60 days thereafter. The State Environmental Impact Assessment Authority would then pass appropriate orders on the said recommendations within 30-40 days from the date of recommendations are received.

(6) The above process shall be completed by the authorities and the agencies concerned within the time frame given for the purpose which would roughly consume nearly nine months or so."

When Interlocutory Application Nos. 7-9 & 10-12 in Special Leave Application (Civil) 729-731 of 2011 titled as Union of India v Vijay Bansal & Ors (supra) came up for hearing before the Supreme Court on 18th September, 2013, it directed the CEC to submit its report in the matter. The Writ Petition No. 688 of 2013 was also directed to be tagged with this matter.

When the matter came up for hearing on 28th October, 2013, the Supreme Court of India dismissed the Writ Petition No. 688 of 2013. The order which we have already reproduced clearly states that the Notification of 2011 was neither unconstitutional nor ultra vires and that the EC has to be obtained by the project proponent or the State which grants the mining lease. In the meanwhile, in terms of the order dated 18th September, 2013 passed in Union of India v Vijay Bansal & Ors (supra), the CEC had filed its report and noticing the recommendations made by the CEC in para 52 of the report, the Supreme Court directed MoEF to file its response to the suggestions of the CEC. The matter remained pending before the Supreme Court for this purpose alone. Thereafter, despite the disposal of all the petitions which also related to consideration of the CEC report the matter was transferred to this Tribunal by the The case of Vijay Bansal (supra) was not specifically disposed of by the Supreme Court of India and remained tagged with the Writ Petition where CEC report was filed.

In furtherance to the order of the Supreme Court, MoEF had filed its affidavit on 10th January, 2014 before the Supreme Court. Now, we would examine the primary suggestions made by the CEC and response thereto provided by MoEF. In relation to role of the State Government in consideration and disposal of application for EC, the CEC has suggested that applications for prior EC for mining of minor and major minerals should be accepted by the Competent Authority in terms of the Notification of 2006 only through the concerned department of the State Governments. The State Government should be invited as a special invitee in the meetings to ensure that EC is not obtained on the basis of factually incorrect information and the cumulative impact of all the mining projects in the area gets reflected in the study. The response of MoEF to this suggestion is that the applications are to be filled in Form I, which contains necessary details. The information involved is multidisciplinary and therefore, involves various departments of the State Government. This would raise question of proper coordination among various departments of the State Government. According to MoEF, it is examining the feasibility of setting up of Decision Support System (DSS) which would verify the veracity of the information and data contained in EIA Report. The Notification of 2006 lays down a valid process for grant of EC and stated that the concerned regulatory authority in this regard is the Central Government, i.e. MoEF for category 'A' projects and SEIAA for category 'B' projects. The second suggestion by the CEC is the desirability for MoEF to consider setting up of a statutory regulatory authority for dealing with mining lease having an area of 50 ha and above.

According to MoEF, there is a complete mechanism in place to deal with grant of EC in accordance with law as provided under Notification of 2006 and there is no need to create such statutory authority. However, MoEF has also stated that in terms of the order dated 6th January, 2014 of the Supreme Court passed in the case of T.N. Godavarman Vs U.O.I (Supra), it is considering the matter in relation to setting up of an independent regulator. CEC recommended that there should be an authority for providing effective mechanism to deal with erring project proponents and MoEF should take immediate remedial measures in that regard. To this, the response of MoEF is that the conditions stipulated in the EC are monitored by the Regional Offices. It is mandatory for project proponent to submit half yearly compliance report which has to be displayed on the website of the concerned regulatory authority. Last recommendation made by the authority is that the MoEF should review the present schemes and consider requirement of EC for mining of major minerals in areas less than 5 ha. This is acceptable to MoEF and according to them a Notification in this regard is likely to be issued.

From the above it is evident that in relation to two issues, MoEF is ad idem with the recommendations of the CEC, i.e., there must be a complete mechanism in accordance with law for obtaining EC for mining of minor and major minerals in areas less than 5 ha and the other in relation to creating a regulatory body.

Illegal, unscientific and unauthorised mining is a matter of serious concern in the present day. There are large number of cases pending before the Tribunal as well as before the Supreme Court of India where indiscriminate and rampant illegal mining is the very cause of action. The matters in relation to mining in Haryana are also pending before the Tribunal. In fact, in those cases which even include District Kurukshetra, Panchkula and Yamunanagar, specific instances have been given of illegal, unscientific and unregulated mining. The judgment of the Punjab and Haryana High Court in the case of Vijay Bansal (supra) is another example of illegal mining. The mining activity had been carried out as recorded in these orders, either without obtaining prior EC or in violation to the conditions imposed in the EC or order granting consent to establish/operate. It is undisputable that there is lack of proper supervision and overseeing of implementation of the conditions stated in these consents. The function of a regulatory authority is twofold. Firstly, it must impose such conditions as would be necessary in the interest of environment and ecology to carry on scientific mining, while on the other, it must perform its supervisory role in ensuring the implementation of the conditions of EC and other consents during the period they are in force. Failure in performance of either would result in failure of executive function and degradation of environment. There has to be a proper mechanism in place for stringent implementation/regulation of the orders passed by these authorities. In terms of the federal structure of our Constitution, the State and Centre both are responsible for carrying on of such activities. The Mines and Minerals (Development and Regulation Act) of 1957 (for short 'Act of 1957') and The Mineral Concession Rules, 1960 are central legislations. In terms of Section 15 of the Act of 1957, the State Government is empowered to frame rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for the purposes connected therewith. Under the provisions of the statute and the Rules framed there-under, a miner would make an application for the grant of the mining lease to the State Government in Form-I through such officer/authority as specified by the State Government in this behalf. On receipt of the application for the grant of a mining lease, the State Government shall take decision to grant precise area for the said purpose and communicate such decision to the applicant. On receipt of communication from the State Government of the precise areas to be granted, the applicant shall submit a mining plan within a period of six months or such other period as may be allowed by the State Government, to the Central Government for its approval. The duly approved plan shall then be submitted to the State Government for grant of mining lease in terms of Rule 22 of the Mineral Concession Rules, 1960. Notification of 2006 which has been issued under the provisions of the Act of 1986 does not attribute any specific role to the State Government while considering application for grant of EC by SEIAA or MoEF in relation to the project falling under category 'A' and/or 'B'. Participation of the State Government through its concerned Department would be appropriate not only in the scheme of law but even for verification and other related purposes. While the application for grant of EC either for mining of minor or major minerals is being considered by the competent authorities, input from the concerned Departments of the State in regard to the essential ingredients would help not only in protecting the environment, but, even in proper enforcement of the provisions of the Notification of 2006. MoEF has agreed that it is likely to issue a Notification shortly, placing both minor and major minerals at par in relation to requirement for obtaining EC prior to carrying on mining activity irrespective of the size of lease area. Grant of mining lease for minor minerals is a prerogative of the State but there must be some uniformity in approach and application of such provisions. It would be quite appropriate for both SEIAA and MoEF to call for a report prior to the stage of preparation of ToR from the concerned department of the State Government and submission of such report would not bind the concerned authorities under the Act of 1986, in view of the provisions contained in the Act of 1986 but it would be a valuable contribution in regard to the verification of the facts and the real position existing on the site as well as verification of some basic data stated by the applicant in his application.

Notification of 2006 is primarily of a mandatory character and is enforceable in terms of its provisions. Every applicant and authority is obliged to comply with the said Notification. This aspect need not detain us any further as it is a settled position of law as far as the Tribunal is concerned. After deliberating on the law in relation thereto, the Tribunal had clearly held that the Notification of 2006 does not leave any scope for default or non-compliance or discretionary enforcement. [Reference can be made to the judgment of the Tribunal in the cases of S.P. Muthuraman Vs. Union of India, 2015 ALL (I) NGT REPORTER (2) (DELHI) 170, Lokendra Kumar Vs. State of U.P. & Ors. 2015 ALL (I) NGT REPORTER (1) (DELHI) 194 and Krishan Lal Gera v State of Haryana & Ors. 2015 ALL (I)NGT REPORTER(2)(DELHI)286].

Despite the fact that the Notification of 2006 is mandatory still it lacks implementation and enforcement mechanism. It requires better and more specific time schedule in light of the principle of Sustainable Development and the need for expeditious disposal of such applications. We have already noticed that the role of the State Government is neither defined nor postulated in the Notification of 2006 but remains a matter that falls in the 'grey area''. The need for State's participation is indicated in the object of the Act of 1986 and the federal structure of the Indian Constitution.

Till all these deficiencies are removed and suggestions of the CEC are implemented in their true spirit and substance, it would be inevitable for the Tribunal to issue interim directions, particularly, in light of the judgments of the Supreme Court as referred in the above cases and the recommendations of the CEC to fill the gaps temporarily till a proper Notification is issued by MoEF providing due mechanism in this regard. It is a settled canon of law that the Courts and the Tribunals could issue interim directions keeping in view the gaps in the provisions of an Act including imposition of a prohibition where the facts and circumstances of a case so demand. Reference can be made to the judgment of the Tribunal in the case of Court on its own Motion Vs. State of Himachal Pradesh & Ors.

2014 ALL (I) NGT REPORTER (1) (DELHI) 66.

In light of the above discussion we dispose of this application with the following directions:

a. It shall be mandatory for all the applicants to seek EC for carrying on of mining activity of minor or major minerals, even if the lease area is less than 5 ha. In other words, MoEF, SEIAA and all other authorities would adopt uniform practice for issuance of EC in regard to the mining area of less than 5 ha notwithstanding the fact that environmental impact of mining of minor minerals is no way less than that of the mining of major minerals. The judgment of the Supreme Court in the Deepak Kumar Vs State of Haryana (2012) 4 SCC 629 is applicable to both minor and major minerals.

b. Every effort should be made by all concerned authorities not to encourage grant of EC for mining activity where the area is less than 5 ha. However, for providing clarity, we further observe that where for reasons of necessity for geographical, ecological and other reasons, if it is necessary to grant EC, for carrying on of mining activity of minor and major minerals in an area less than 5 ha, a special report in that behalf shall be invited from the concerned State authority and EC would be granted for specific reasons to be recorded in that behalf and then the Application would be considered for grant/refusal of EC.

c. MoEF in consultation with the State Government shall constitute a District Committee which would submit its report to MoEF prior to preparation of ToR, in regard to the contents of the application, the physical location of mining site, environmental concerns and the scope of ToR. This report shall be taken into consideration by MoEF and/or SEIAA before issuing ToR at the time of consideration of the EIA report.

d. The State Government should submit its mining plan in consonance with the provisions of Act of 1957, Mineral Concession Rules, 1960 and the same should be approved by MoEF and other concerned ministries in accordance with law.

e. Every applicant shall be granted permission for mining only after the mining plan submitted by the applicant to the Central Government has been approved in accordance with Rule 22 and in consultation with the Director General of Police, Secretary In-charge of mining and the Chief Scientist and Scientist-in-Charge of Central Institute of Mining and Fuel Research, Regional Centre, Roorkee, an expert body in the field of mining which shall issue guidelines within the six weeks of the pronouncement of the judgment, providing proper mechanism for supervision and ensuring the implementation of judgment and taking appropriate action in accordance with law post issuance of order granting consent to operate and EC.

f. MoEF shall also re-examine in consultation with expert bodies to ensure reduction of time taken in issuance of EC, particularly, in light of the judgment afore referred. All the mining authorities and MoEF/SEIAA would give due consideration to the applicants applying for mining lease or grant of EC, who have been found guilty of illegal, unauthorised and unscientific mining, violating the terms and conditions of the orders by which consent to operate and/or EC has been granted. Normally, it should be taken as a disability for renewal and/or granting of mining lease or such consent orders. Wherever the government or the authority takes a decision to the contrary, it will be an obligation to record specific reasons in that behalf.

The application is disposed of with no orders as to costs.