AI Structured Summary
Not yet generated for this judgment
Judgment
M.A.No.30 of 2016 in Application No.32 of 2016:
This application is filed by the Union of India, represented by the Deputy Chief Engineer/Construction/Nizamabad, South Central Railway, Secunderabad for impleading himself as a party.
According to the proposed party, the Railway Department requires gravel for the purpose of completing the project and they are interested in the subject matter of the application.
There is no objection on the part of the learned counsel appearing for the other side.
Accordingly, the impleading application is ordered and the newly added party is impleaded as respondent No.6 in Application No.32 of 2016.
Applications No.32 & 49 of 2016:
1) In both these applications, the proceedings of the Government of Telangana, Department of Mines and Geology issued by the Director of Mines and Geology dated15.9.2015 are under challenge.
Under the impugned order, the Director of Mines and Geology has drawn the attention of the Deputy Directors of Mines and Geology and Assistant Directors of Mines and Geology in the State of Telangana to take appropriate action by informing that it is proposed to consider the grant of lease for minor minerals as per the prevailing rules, as there is no provision for obtaining approved mining plan from the applicants or lease holders before renewal of lease which is a pre-requisite for obtaining Environmental Clearance (EC). In the impugned order the Director has also stated that the Assistant Directors of Mines and Geology shall process the quarrying lease applications and the Deputy Directors of Mines and Geology shall grant lease after obtaining an undertaking in the form of a notarized affidavit from the applicants/lease holders (in case of renewal) to produce acknowledgement of having applied for EC and Consent for Establishment/Consent for Operation before commencement of quarry operations in order to comply the orders of National Green Tribunal dated 13.1.2015 till comprehensive Minor Mineral Rules are framed and notified by the State Government.
The Principal Bench of the National Green Tribunal, New Delhi in the order dated 13.1.2015 rendered in Original Application No.123 of 2014 in the case of HIMMAT SINGH SHEKHAWAT V. STATE OF RAJASTHAN, while dealing with another application filed in NATIONAL GREEN TRIBUNAL BAR ASOCIATION V. DR. SARVABHOUM BAGALI (Original Application No.171 of 2013) complaining about the rampant illegal sand mining in the Yamuna river bed in violation of law without taking prior EC, has taken note of the judgment of the Hon'ble Supreme Court in DEEPAK KUMAR V. STATE OF HARYANA (2012) 4 SCC 629) and has given the following directions:
ÏV. We further hold that the existing mining lease right holders would also have to comply with the requirement of obtaining Environmental Clearance from the competent authorities in accordance with law. However, all of them, if not already granted Environmental Clearance would be entitled to a reasonable period (say three months) to submit their applications for obtaining the same which shall be disposed of expeditiously and in any case not later than six months from pronouncement of this judgment."
While deciding about the existing mining lease right holders, the Tribunal has given three months time to those who have already applied for the grant of such clearance and permitted three months time to submit application for EC who have not already applied and directed that such applications should be disposed of expeditiously in any case, not later than six months from the pronouncement of the judgment.
Therefore, the period granted by the Tribunal for the existing mining lease right holders as well as the applicants who are yet to make their applications, has already come to an end. By reading the observations and directions given by the Principal Bench of the National Green Tribunal, New Delhi one can come to a conclusion that even in respect of the existing mining lease holders, mere application made to obtain EC with an undertaking in a notarized form, is not sufficient to proceed with the mining operation.
In fact the Tribunal in it's judgment has narrated in the ultimate paragraph the judgment of the Hon'ble Supreme Court in DEEPAK KUMAR's case and stated as follows:
"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."
In the light of the categorical pronouncement of the judgment by the Principal Bench, National Green Tribunal, it is not possible to accept the contents of the impugned proceedings of the Director of Mines and Geology dated 15.9.2015 stating that the applicants and existing lease holders as well as fresh lease holders can just make an application for EC and proceed with the quarrying activity even before the EC is granted.
The learned counsel appearing for the State of Telangana would rely upon the term "mine" in the Mines Act, 1952 wherein the term "mine" is defined, as amended by Act 42 of 1983 dated 31.5.1984 as follows:
"mine" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes--
(i) All borings, bore holes, oil wells and accessory crude conditioning plants, including the pipe conveying mineral oil within the oil fields;
(ii) All shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not;
(iii) All levels an inclined planes in the course of being driven;
(iv) All open cast workings;
(v) All conveyors or aerial rope-ways provided for the bringing into or removal from a mine of minerals or other articles or for the removal of refuse therefrom;
(vi) All adits, levels, planes, machinery, works, railways, tramways and sidings in or adjacent to and belonging to a mine;
(vii) All protective works being carried out in or adjacent to a mine;
(viii) All workshops and stores situated within the precincts of a mine and under the same management and used primarily for the purposes connected with that mine or a number of mines under the same management;
(ix) All power stations, transformer sub-stations, convertor stations, rectifier stations and accumulator, storage stations for supplying electricity solely or mainly for the purpose of working the mine or a number of mines under the same management;
(x) Any premises for the time being used for depositing sand or other material for use in a mine or for depositing refuse from a mine or in which any operations in connection with such sand, refuse or other material is being carried on, being premises exclusively occupied by the owner of the mine;
(xi) Any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting dressing or preparation for sale of minerals or of coke is being carried on
The submission of the learned counsel is that as per Section 3 of the Mines Act, 1952, the said Act is not applicable in respect of certain cases. Under Section 3(1) of the said Act, the exemption applies in respect of the cases where the depth of excavation from its highest to its lowest point is not in excess of 6 meters and number of persons employed on any day does not exceed 50 and explosives are not used in connection with the excavation.
Therefore, according to the learned counsel, the definition of "mine" defined under the Mines Act, 1952 subsists as on date, as it is a Central Act and therefore by applying Section 3 of the said Act, mining should be permitted subject to the conditions mentioned therein.
It is true that under Section 3(i) of the Mines and Minerals (Development and Regulation) Act, 1957, the expressions "mine" and owner" have the meanings assigned to them in the Mines Act, 1952. However, we are unable to accept the contention of the learned counsel that the mining activity is permissible under Section 3(i) of the Mines Act, 1952, for the reason that the object of Mines Act, 1952 is totally different from the Mines and Minerals (Development and Regulation) Act, 1957. The Mines Act, 1952 was enacted by the Parliament with the aim of regulation of labour and safety in mines. It is in accordance with the preamble of the Act which is the key to open the mind of the makers of law, various provisions of the Mines Act, 1952 have been formulated. In short, the Mines Act, 1952 can only be termed as a beneficial legislation to protect labour and safety of the mines.
On the other hand, it is the Mines and Minerals (Development and Regulation) Act, 1957 which deals with the development and regulation of mines and minerals. It is true that under the Mines and Minerals (Development and Regulation) Act, 1957, the term "mine" is not defined but incorporated the definition given in the Mines Act, 1952. But it does not mean that the object of Mines Act, 1952 should be imported into the Mines and Minerals (Development and Regulation) Act, 1957. The Mines and Minerals (Development and Regulation) Act, 1957 deals with providing of lease and regulation of the same and therefore it is the Mines and Minerals (Development and Regulation) Act, 1957 which squarely applies to the facts and circumstances of this case. That is the reason why the Hon'ble Supreme Court, while deciding DEEPAK KUMAR's case has referred to various provisions of the Mines and Minerals (Development and Regulation) Act, 1957 while issuing various directions.
In fact, the definition of "mine "came to be discussed by the Principal Bench of the National Green Tribunal in the judgment in HIMMAT SINGH SHEKHAWAT's case, referred to above wherein the Principal Bench of the National Green Tribunal, New Delhi has held as follows:
"The Indian Parliament, with the object to amend and consolidate the law relating to the regulation of labour and safety in mines enacted the Mines Act, 1952. Section 2(JJ) of the Mines Act, 1952 defines "minerals" to mean, all substances which can be obtained from the earth by mining, digging, drilling, dredging hydraulicing, quarrying or by any other operation and includes mineral oils (which, in turn, include natural gas and petroleum). This Act, primarily provided for welfare of the labourers working in mines, inspection and surveying by inspectors, mining operation and management of mines. Mines Rescue Rules also came to be framed under Section 59 of the Act in the year 1984."
In compliance with the direction given by the Hon'ble Supreme Court in DEEPAK KUMAR's case and the directions given by the Principal Bench of the National Green Tribunal in HIMMAT SINGH SHEKHAWAT case, the Government of India, MoEF & CC has issued a statutory notification dated 15th January, 2016, making necessary amendment to the EIA Notification, 2006 in accordance with the powers conferred under the provisions of the Environment (Protection) Act, 1986. As per the said amendment Schedule 1(a) is substituted which speaks about the mining of minerals and the said amendment makes it clear that in cases where the mining lease in respect of non-coal mine is 50 hectares or above, the same has to be treated as "Ä" category project and in cases where the mining lease in respect of non-coal mine is below 50 hectares, the same is to be treated as "B" category project. Out of the same, if mining of minor minerals is upto 5 hectares, it comes under "B2" category.
In the said notification the Government of India has constituted the District Level Environment Impact Assessment Authority (DEIAA) and empowered the authority to proceed with the screening, scoping and appraisal of the projects falling under B2 category for mining of minor minerals and the District Level Expert Appraisal Committee (DEAC) has also been constituted. In Appendix - IX in respect of certain cases exemptions have been given from the requirement of EC. The exemptions are as follows:
1.Extraction of ordinary clay or sand, manually, by the Kumhars (Potter) to prepare earthen pots, lamp, toys, etc., as per their customs.
Extraction of ordinary clay or sand, manually, by earthern tile makers who prepare earthen tiles.
Removal of sand deposits on agricultural filed after flood by farmers.
Customary extraction of sand and ordinary earth from sources situated in Gram Panchayat for personal use or community work in village.
Community works like de-silting of village ponds or tanks, construction of village roads, ponds, bunds undertaken in Mahatma Gandhi National Rural Employment and guarantee Schemes, other Government sponsored schemes, and community efforts.
Dredging ad de-silting of dams, reservoirs, weirs, barrages, river, and canals for the purpose of their maintenance, upkeep and disaster managemen.
Traditional occupational work of sand by Vanjara and Oads in Gujarat vide notification number GU/90(16)//MCR-2189(68)/5-CHH, dated the 14th February, 1990 of the Government of Gujarat.
Digging of well for irrigation or drinking water.
Digging of foundation for buildings not requiring prior environmental clearance.
10.Excavation of ordinary earth or clay for plugging of any breach caused in canal, nala, drain, water body, etc., to deal with any disaster or food like situation upon orders of District Collector or District Magistrate.
Activities declared by State Government under legislations or rules as non-mining activity with concurrence of the Ministry of Environment, Forest ad Climate Change, Government of India."
Therefore, it is clear that in cases where the community works like de-silting of village ponds or tanks, construction of village roads etc., undertaken under Mahatma Gandhi National Rural Employment Guarantee Scheme and other Government sponsored schemes, if any gravel is found out, there is no impediment for the use of the gravel by the Railways, as the same is exempted under Appendix - IX of the notification dated 15th January, 2016. In all other cases of mining leases, there is no difficulty to arrive at a conclusion that as per the judgment of the Hon'ble Apex Court in DEEPAK KUMAR's case prior EC is a mandatory requirement.
Now that the Government of India has constituted the DEIAA, naturally if the applications are pending with SEIAA in respect of the matters which are to be decided by the DEIAA, as per the notification dated 15th January, 2016, it is the duty on the part of SEIAA to immediately transmit those cases to the concerned DEIAA.
In continuation of the notification dated 15th January, 2016, the MoEF & CC has also issued a further notification dated 20th January, 2016, wherein, by virtue of the powers conferred under sub-section (3) of Section 3 of the Environment (Protection) Act, 1986, the Central Government has constituted the DEIAA for the grant of EC for Category B2 projects for mining of minor minerals comprising the following members, namely:
1.District Magistrate or District Collector of the district .. Chairperson
Senior most Divisional Forest Officer in the district .. Member
An expert member to be nominated by the Divisional Commissioner or Chief Conservator of the Forest .. Member
Sub-Divisional Magistrate or Sub-Divisional Officer of the district head quarter .. Member- Secretary
Therefore, by virtue of the above notification, the constitution of DEIAA has been statutorily completed for the reason that the Chairman and Members constituting the committee are to function in ex-officio capacity as they hold substantive posts except the Expert Member who has to be nominated and the process should be completed expeditiously. Further, the notification dated 20th January, 2016 states that the DEAC is constituted for all the districts in the country comprising of the following persons:
1
Senior most Executive Engineer, Irrigation Department
Chairperson
2
Senior most Sub-Divisional Officer (Forest)
Member
3
A representative of Remote Sensing Department or Geology Department or State Ground Water Department to be nominated by the District Magistrate or District Collector
Member
4
Occupational health expert or Medical Officer to be nominated by the District Magistrate or District Collector
Member
5
Engineer from Zila Parishad
Member
6
A representative of State Pollution Control Board or Committee
Member
7
An expert to be nominated by the Divisional Commissioner or Chief Conservator of Forest
Member
8
An expert to be nominated by the Divisional Commissioner or Chief Conservator of Forest
Member
9
An expert to be nominated by the Divisional Commissioner or Chief Conservator of Forest
Member
10
Senior most Assistant Engineer, Public Works Department
Member
11
Assistant Director or Deputy Director or District
Member
In view of the aforesaid statutory notification issued by the Government of India and the DEIAA having been constituted, it is the duty of the said authority to start functioning.
We hereby direct the Government of Telangana to take necessary action as per the aforesaid notification issued by the Government of India dated 20th January, 2016 forthwith, so as to enable the statutory authority to function in all the districts. In addition to the above, we direct the Telangana SEIAA to transmit all the pending proposals which come under the purview of the DEIAA to the concerned DEIAA forthwith. We make it clear that in so far as the present case is concerned, if the South Central Railway or the contractor to whom the Railway has awarded contract, if such applications for granting EC were already filed before SEIAA or in case where the Railway or the contractor make fresh application to DEIAA, in such event the authority shall consider the application on merits and pass appropriate orders in accordance with law expeditiously in any event within a period of four weeks
We appreciate the efforts taken by the Director of Mines and Geology, Telangana State who has made his personal submission before this Tribunal stating that about 3,500 applications for granting EC are pending throughout the State and for want of clearance, the developmental activities are practically stopped. We are of the view that the direction above, will serve the purpose of both the ongoing and proposed developmental activities of the State as well as the confirmation of the legal provisions in accordance with the notification dated 15th January, 2016.
It is needless to say that if the Railway is entitled to claim exemption under the notification dated 15th January, 2016, it is always open to them to utilise the same in accordance with law.
With the above observation, both the applications are disposed of. There shall be no order as to cost. In view of the order passed in Application No.32 of 2016, pending M.A.No.31 of 2016 stands closed.