M.C. MEHTA v. UNION OF INDIA AND ORS (21)

Citation: [2009] 9 S.C.R. 998

Court: Supreme Court of India

Bench: K.G. BALAKRISHNAN, ARIJIT PASAYAT, S.H. KAPADIA

Case summary

M.C. MEHTA v. UNION OF INDIA AND ORS (21).pdf

Judgment text

[2009) 9 S. C. R. 998 -· --t M. C. MEHTA v. UNION OF INDIA AND ORS. I. A. No. 1967 In I. A. No. 1785 In Writ Petition (C) No. 4677 of 1985 MAY 08, 2009 [K. G. BALAKRISHNAN, CJI. , DR. ARIJIT PASAYAT AND S. H. KAPADIA, JJ. ] Environmental Law: Ecology - Protection of, vis-a-vis mining activities - Mining activities in Aravalli Hills Range - Held : All mining operations in Aravalli Hills range falling within the State of ~ Haryana in the Districts of Faridabad and Gurgaon including Mawat are suspended till Reclamation Plan duly certified by State of Haryana MOEF and CEC is prepared in accordance with statutory provisions as well as in terms of the Rules and the Guidelines framed thereunder - /As relating to major minerals disposed of - /As relating to minor minerals adjourned - Environment (Protection) Act, 1986 - Mines and Minerals (Development and Regulation) Act, 1957 - Mineral t ~ Conservation and Development Rules, 1988-rr. 34 and 37.

Environmental Law: Sustainable Development - Precautionary Principle - Concepts of 'balancing' and 'banning' - Explained - Constitution of India, 1950 - Articles 21, 48-A and 51-A(g). ~- The Aravallis are amongst the oldest geological formations in the world. Due to its geological location, desertification is stopped and it prevents expansion of the desert into Delhi. At the same time, the Aravalli Hills range being rich in minerals, it has been the site of extensive mining activities. Keeping in view ecological importance of Aravalli Hills range, the Government of India in exercise of its powers u/s 31(iv) of the Environment (Protection) Act, 1986 issued notification dated 7. 5. 1992 regulating the mining activities in the region with a view to strictly implement the measures to protect the ecology of the Arravallis. By Notification dated 29. 11. 1999 powers vested in Central Government in terms of Notification dated 7. 5.

1992 were delegated to State Governments of Rajasthan and Haryana. But the delegation in favour of the States stood withdrawn. It was found that most of the mines were operating in violation of approved plans, destroying the ground water table as also causing irreparable damage to critical groundwater reserves, and rendering reclamation of mined area impossible. By orders dated 29/30. 10. 2002, the Supreme Court 0 prohibited and banned all mining activities in the entire 1- Aravalli Hills. However, on 16. 12. 2002 the Court permitted mining in forest areas where specific prior approval u/s 2 of the Forest (Conservations) Act, 1986 was accorded. From time to time the Court was trying to balance mining activity on the one hand with protection of environment on the other. However, the mining operations were being carried out on a disproportionate scale in the Aravalli Hills .. ,, .. mainly in Gurgaon and Faridabad districts including Mewat in the State of Haryana. Disposing of IAs. No.

1976 and 2186 in I. A. No. 1785 in Writ Petition (C) No4677/1985 and I. A. No. 1465 in Writ Petition (C) No. 202/1995 and other IAs. opposing imposition of ban on mining of major minerals, the Court HELD: 1. 1. After taking a macro view based on the satellite images, which indicate devastation caused to the area by mining operations, this matter needs to be looked at holistically. This exercise is not project-specific. Moreover, the applicants might have obtained clearances -I for their projects as of date but in the past they have carried out mining operations, which according to the amicus curiae, has been done without complying with the aspect of Rehabilitation. In this connection, it is important to note that in ra 18 of the judgment in M. C. Mehta case*, this Court etected the mining operation at different sites in the area ithout requisite clearances and without environmental management plan.

Number of sites have been excavated in the past without clearances, ~hich is indicated ·in para 18 of the said judgment. It is on account of absence of remedial measures qua those sites that today environment and ecology which are' national assets and which are governed by intergenerational equities s. tand devastated ·and Which leaves no option to the Cc;mrt but to ban the mining operations till remedial mea~u. re!.! are taken and duly certified by the 0 various comp@~i! ~t ~uthorities which are in-charge of granting clearanc~s. (Para 17] (1020-D-H] ·*M. C. Mehta v. Union in India (2004) 12 SCC 118, re,ferred to. 1. 2. Even in the case of M. C. Mehta it has been categorically observed that if despite stringent coJlditions, the degradation of environment continues and reaches a stag~ of no return then the Court may consider closure of mining activity in the area.

Over the years; this Court has given opportunities to user agencies with the hope that they would comply with stringent conditions including taking of remedial measures, but that hope stands belied. (Para 17] (1020- H; 1021-A-B] 1. 3. Sustainable Development Principle is part of Articles 21, 48A and 51A(g) of the Constitution of India. Mining within the Principle of Sustainable Development comes within the concept of "balancing", whereas H' mining beyond the Principle of Sustainable Development comes within the concept of "banning". It is a matter of degree. Balancing of the rnining activity with environment protection and banning Such activity are two sides of the same principle of sustainable development. They are parts of Precautionary Principle. [Para 19] (1022-F-H; 1023-A] 2. 1. Under the Mines and Mineral (Development and Regulation) Act, 1957 besides othfJr Rules, Mineral Conservation and Development Rules;, 1988 have been framed, under r.

34 whereof mandatc>ry provisions for reclamation and rehabilitation of lands are made for every holder of prospecting licence or mining lease to be·. undertaken and that work has to be completed by the lessee/licensee before abandoning the mine or prospect. Similarly, under r. 37 of the said Rules, tl'le lessee/licensee has to calibrate the air pollution within permissible limits specified under Environment (l'rotection) Act, 1986 as well as air (Prevention and Control of Pollution) Act, 1981. Under the 1988 Rules, the most important Guideline is Guideline No. 25. 26. 3, 25. 26. 4, 25. 26. 5 and 25. 26. 6, which Guideline deals with reclamation, planning and implementation, restoration strategy, principles of rehabilitation, rehabilitation of mined out sites aAd . , .. methods of reclamations. It may be noted that there are two steps to be taken in the method of reclamation, namely, technical reclamation ar11d biological reclamation.

The most important aspect of the above guideline is making of a Rehabilitation Plan. However, none of the above provisions have been complied with. [Para 20 and 21) [1023-C-H; 1024-A] 2. 2. In the circumstance, by the present order, the _,,. Court suspends all mining opE~rations in the Aravalli Hills Range falling in the State of Haryana within ~he area of approximately 448 sq. km. in the Districts of Faridabad and Gurgaon including Mewa. t till Reclamation Plan duly certified by State of Haryana, MoEF and CEC is prepared in accordance with the statutory provisions contained in various enactments as well as in terms of the Rules framed thereunde. r and the Guidelines. The said Plan shall state what, steps are needed to be taken to rehabilitate {including reclamation) followed by Status Reports on steps taken by the Authorities pursuant to the said Plan. (Para 21f (1024-A-C] 3.

As regards granting of permission to the State of Haryana to excavate minor minerals from a localized area of 600 hectares out of the said 448 sq. km. for purposes of obtaining construction material, the hearing is adjourned. The I. As. which deal with mining of minor minerals are adjourned. [Para 22] (1024-D-F] Case Law Reference: (2004) 12 sec 118 referred to Para 1,17 CIVIL ORIGINAL JURISDICTION: I. A No. 1967 In I. A No. 1785 In Writ Petition No. 4677/1985. WITH 11\. No. 1785 I. A. No. 2152 in I. A. No. 1785 in WP (C) No. 4677/1985 - I. A No. 2186 in I. A No. 1785 in WP (C) No. 4677/1985 I. A No. 2168 in I. A No. 1785 in WP (C) No. 4677/1985 I. A No. 2385 in I. A No. 1785 in WP (C) No. 4677/1985 l:A. No. 1465, 2426-2427 in W.. P. (C) No. 202/1995 Mohan Parasaran, Parag P. Tripathi, ASG, Ranjit Kumar (A. C. ), Anil B. Diwan, S. B. Upadhyay, K. K. Rai, A. K. Srivastava, M. N. Krishnamani, Rajiv Dutta, Rakesh Dwivedi, K. K. Venugopal, P. S. Patwalia, Soli J.

Sorabjee·, Mukul Rohtagi, +_ Siddhartha Chowdhury (A. C. ), A. D. N. Rao (A. C. ), Kamal ' Gupta (A. C. ), Petitioner-in-Person (NP), Naresh Kaushik, Rupesh Kaushik, Lalitha Kaushik, S. W. A. Qadri, M. P. S. Tamar, S. N. Terdal, Kiran Bhardwaj, A. Deb Kumar (for Anil Katiyar), D. N. Goburdhan, Geeta Luthra, Vijay Panjwani, Dhruv Mehta, Yashraj Singh Deora, Mohit Abraham (for K. L. Mehta & Co. ) Pawan Upadhyay, Ankit Shah, Anisha Upadhyay, S. K. Dubey, K. V. Mohan, K. V. Thakur, Dr. Surat Singh, Jagdev Singh, "I Partikha Chopra, Arun Kr. Beriwal, Binu Tamta, Bimal Roy Jad, Vijay Kumar, M. G. Diwan, Vishwajit Singh, Piyush Sharma, Dinesh C. Pandey, S. K. Pandey, Bankey Bihari, Krishnand Pandey, Pawan Upadhyay, Anisha Upadhyay, Ankit Shah, Sharmila Upadhyay, Puneet Agrawal, Satish Jaglan (for Dr. -. Kailash Chand), S. L. Kumra, B. V. K. Ahluwalia, Vijay Lakshmi Menon, Ekta Kapila, Vijay Kaurdel, Kuber Diwan, Preetika Dwivedi, T. K. Pradhan, Ashwarya Sinha, Amboj Kr.

Sinha, Praveen Gupta, Chitralekha Sen (for Dr. Kailash Chand), i ~ Manjeet Singh, Arti Gupta (T. V. George), A. D. N. Rao, Lawyers Knit & Co. , Kavita Wadia, Haris Beeran, Ashish Dholakia, Adarsh Priyadarshi, Sumita Hazarika, Kiran Bhardwaj (for Dr. Kailash Chand) Hemantika Wahi, Pinky, Somnath Padhan, Miss Mamta Tushar, Shyam Mohan, Jayashree wad, Ashish Wad, Satya Vikram, Sameer Abhyankar (for J. S. Wad & Co. ) D. N. Ray, Rajiv Mehta, K. B. Rohtagi, Aparna Rohtagi, Mahesh ' which is examining the matter will give its suggestions within a period of six weeks. On the receipt of those suggestions, the prayers made by the applicants for modification of the order dated 29/30. 10. 2002 insofar as .... the Gurgaon District is concerned ":'ill be considered . . • (3) No mining activity would be permitted in respect of f r areas where there is a dlispute of applicability of F. C.

Act, t __, till such time the dispute is resolved or approval under the FC Act is accorded, in addition to order already passed in Writ Petition No. 4677/1985. 8 For the present, no mining will be permitted in the areas for w~ich notification under Sections 4 and 5 of the Punjab LandPreservation Act 1900 have been issued for ·regulating the breaking up of the land etc. and such lands are or were recorded as "Forest" in Government records even if the notification period has expired, unless there is approval under the FC Act. Learned Attorney General and Solicitor General will -- - ) assist the Court on the aforesaid aspects on the next date of hearing. f In respect of suggestion 7 and 8, the Union of India will ~ respond on the next date of hearing. The order dated 29!

30th October, prohibiting and ·banning the mining activity in Aravalli hills from Haryana to Rajasthan is modified insofar as the State of Rajasthan is concerned to the following effect: t Wherever requisite approval/sanctions in the said ..... State nave been . obtained under FC Act and EP Act, and ,.... the m. ining is not prohibited under the applicable Acts of notifications or orders of the Court, mining can continue .. and to such mining the order aforesaid will· not apply. This order will be applicable to non-forest land covered for the period prior to the date of modification of ~ the order dated 29th November 1999 in the State of .... Haryana. This variation will not apply to the area in the Alampur District in the State of Haryana. M. C. MEHTA v. UNION OF lt)JDIA AND ORS. 1009 [S. H. KAPADI}\, J. ] .. / ~ List the matter on 7th February, 2003 at 2 O'Clock. " (emphasis supplied) I. Reasons behind Order dated 29130. 10. 2002 imposing total ban: 8 4.

The question to be answered at the outset is why did· this Court impose a complete ban on mining in the Aravalli range falling in the State of Haryana which broadly falls in District Gurgaon and District Faridabad including Mewat? The statistical data placed before this Court indicated that, in October, 2002, twenty six miries were inspected which indicated wide scale non-compliance of statutory Rules and Regulations applicable to mines. Broadly stated, most of these mines . failed to obtain environmental clearances. Most of these mines failed to submit environmental management plan. In some cases, the status of mining indicated below groundwater table. Mining pits were turned into huge groundwater lakes. No efforts were made to create plantation. Broadly, these were silica sand mines. In some cases, even groundwater stood extracted. Deep mining pits with large water bodies were detected. Huge amounts of overburden were also seen in the area.

These are some of the defects which were highlighted by EPCA in various Reports as far back as October, 2002. These non-compliances have also been highlighted with' the names of the mines meticulously in para 18 of the judgment in the case of M. C. Mehta (supra). It is important to note that. by Notification dated 7. 5. 1992 issued by MoEF under Section 3(2)(v) of the Environment (Protection) Act, 1986 ("EP Act" for short), as amended, all new mining operations including renewal leases stood banned. The Notification further laid down the procedure for taking prior permission before undertaking mining activity. At this stage it may be noted that by Notification dated 27. 1. 1994 as amended on 4. 5. 1994 issued by MoEF under Section 3(2) of the EP Act, 1986 read with Rule 6, Environment Impact Assessment ("EIA") before commencement of any mining operation became mandatory. I,. Therefore, by Order dated 29/30. 10.

2002, when this Court ·r found large scale mining without Approved Plans, it decided to ban all mining activities in the Aravalli Range. II. Fall out of the Order dated 29130. 10. 2002: 5. After Order dated 29/30. 10. 2002, I. As. were moved saying that applications have been filed for EIA and for approval of plans and it is at this stage that this Court ordered that no ~ mining activity could be carried outwithout remedial measures being taken and for that purpose, it was necessary that EIA had to· be done before any mining activity could be permitted. (see 2004 (12) 'SCC 118 at p. 185). . 6. At this stage, one event need~ to be highlighted. The powers vested in the Central Government in term·s of Notification dated 7. 5. 1992 were delegated to . State Government concerned, namely, Rajasthan an~. Haryana, vide Notification dated 29. 11. 1999.

But the delegation in favour of 'i "' the State stood withdrawn when it was found that most of the mines in the State were operating in violation of Approved P. lans. In most cases, mining operations were carried out unscientifically with the sole aim of maximizing profits which resulted in: indiscriminate scattering of the overburden, wasteful manner 6f mining with complete disregard to mineral conservation aspect, rendering reclamation of mined area f impossible. This Court further found that mining leases were granted by the State in areas where plantations were under~aken with the financial assistance provided by international donor agencies. That, mining was permitted in a manner which was destroying the groundwater table as also causing irreparable damage to the critical groundwater reserves. That, there was no effective mechanism to ensure ~ compliance of various conditions stipulated while giving approvals and, lastly; no deterrent action was taken against .

mines for serious violations and non-compliance of conditions · were found. ,I_ Ill. Consequences of Continuous Violation of the ' Rules: 7. As stated above, Notification dated 7. 5. 1992 was passed with a view to strictly implement the measures to protect the ecology of the Aravallis range. It was followed more in its breach. The Aravallis, the most distinctive and ancient mountain chain of Peninsular India, mark the site of one of the oldest geological formations in the world. Due to its geological ;ii. , location, desertification is stopped a11~ it prevents expansion of the desert into Delhi. On account of extensive mining on a disproportionate scale without taking remedial measures has resulted irreversible changes in the environment at Aravalli. It is in the aforestated background that any mining activity came to be banned under Order dated 29/30. 10. 2002. Even as far back as 2002, the environmental problems in the Aravalli range in Gurgaon district came to be identified.

Remedial measures ::, including pollution control guidelines and action plan for various ). stakeholders came to be suggested by CMPDI. Though guidelines for mining operations came to be issued by the State Government, the compliance was not there. Moreoyer, there was no mechanism to upgrade the mining technologies to minimize the impact due to mining in the eco-sensitive zones. CMPDI also noticed that in the Aravalli Hills a large number of activities, operations of stone crushers and 1 .... deforestation had caused environmental degradation even in 2002 which is clear from para 63 of the above judgment in M. C. Mehta case (supra) and the tragedy is that despite all warnings, the mines continued their operations without Environment Management Plan. That, right from 18. 3. 2004, when this Court pronounced the judgment in M. C.

Mehta case (supra), till date, number of Reports came to be submitted as the Court tried to balance mining activity on one hand with protection of environment on the other hand. In fact, in para 57 of the said judgment, this Court stated that so long as it is possible to undertake mining operations ,on the sustainable development principle, the Court should not impose complete pan on mining l. as it generates revenue for the State. However, vide para 89, f a warning was given that if despite imposition of stringent conditions, the degradation of environment continues and reaches a stage of no-return, then this Court may have to . consider at a later date the closure of mining activity. This prediction has come true. The consequence is that the State now has decided to close the mining activity. Para 89 is also important from another angle. The judgment in M. C. Mehta case (supra) bas left it to this Court to consider at a later date ~ the closure of mining activity.

Even in para 96(6), this Court observed that mining activity can be permitted only on the basis of sustainable development and on compliance with stringent conditions as the Aravalli Hill Range has to be protected at any cost . and in case despite stringent conditions, mining results in an irreversible consequence on the ecology in the said. area then at a later date the total stoppage of mining activity may . have to be considered. In other words, in the judgment of this ·~ Court in M. C. Mehta case (supra) decided on 18. 3. 2004, a - -- "-· Conclusion: l ' ' _. _ 21. None of the above provisions have been complied with. In the circumstance, by the present order, we hereby suspend all m'ning operations in the Aravalli Hill Range falling in the State of Haryana within the area of approximately 448 r sq. kms. in the Districts of Faridabad and Gurgaon including Mewat till Reclamation Plan duly certified by State of Haryana, MoEF and GEC is prepared in accordance With the above • }..

· statutory provisions conta. ined in various enactments . 4 enumerated above as . well as in terms of the Rules framed .. _ thereunder and the Guidelines. The said Plan. . shall state what steps are needed to be taken to rehabilitate (including reclamation) followed by Status Reports on steps taken by the ' --- Authorities pursuant to the said Plan. L I 22. The question still remains as to whether we should grant permission to the State of Haryana to excavate minor ·.. i "' minerals from a localized area of 600 hectare~ out of 448 sq. I-kms. (approx. ) for purposes of excavating construction material I which is needed for construction of houses, sports complexes and other buildings. In this connection, we may state that on this / part the hearing will take place after the summer vacation. - . , Accordingly, I. A. No. 1967 in I. A. No. 1785, I. A. No. 2186 in I. A • . ' No. 1785 in Writ Petition (C) No. 4677/85 and I. A. No. 1465 in I r.. Writ Petition (C) No. 202/95 and other I. As.

, which have -1 opposed imposition of ban on mining of major minerals stand . disposed of. The I. As. which deal with mining of minor minerals are adjourned beyond summer vacation. ·,. RP; I. A's disposed of. 't- •·