--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE D.B.: HON'BLE MR. SHANTANU KEMKAR AND HON'BLE MR. S. C. SHARMA, JJ WRIT PETITION NO. 3861 / 2010 AMBALAL S/O DEWAJI MARMAT Vs. STATE OF MP & TWO ORS., A N D WRIT PETITION NO. 5492 / 2010 SHARAD KUMAR GAGRANI Vs. STATE OF MP & TWO ORS., * * * * * O R D E R ( _____/8/2011) PER S. C. SHARMA, J :- Regard being had to the similitude in the controversy involved in the matter, the above cases were heard together and a common order is being passed. The facts of WP No. 3861 / 2010 are narrated as under : The petitioner before this Court has filed this present petition challenging order dt. 5/1/08 passed by the M. P. Pollution Control Board ordering closure of all mining --- 2 --- activities. The petitioner is also aggrieved by order dt. 19/1/08 passed by the Collector cancelling the patta granted in favour of the petitioner for the purposes of mining. The petitioner is also aggrieved by order dt. 19/11/08 by which his application for grant of no objection certificate in respect of water and air clearance has been rejected. The contention of the petitioner is that he is carrying on business of mining since 1975 and on 21/11/1975 a mining lease was granted to the petitioner for excavation of lime stone for a period of 20 years. The petitioner has further stated that his mining lease was renewed by an order dt. 28/5/98 upto 2015. The petitioner has further stated that on 11/4/07 a show cause notice was issued by respondent No.3 MP Pollution Control Board informing the petitioner that he has failed to comply with the provisions of Sec. 31(A) of the Prevention & Control of Pollution Act, 1981 and he was directed to stop all mining activities forthwith. The petitioner did submit a reply to the aforesaid show cause notice on 15/5/08 and as stated by him without hearing him an order was passed on 5/1/08 directing the petitioner to close down all mining --- 3 --- operations as he has failed to produce a clearance certificate from environment department. The petitioner has further stated that respondent No.2 Collector, Dhar has also passed an order on 19/2/08 cancelling the mining lease. Petitioner's grievance is that he has completed all requisite formalities and an application was also submitted for grant of no objection certificate before the respondent No.3 – Board and as no objection certificate was not being granted by the Board a writ petition was preferred ie., WP No. 2414 / 2008 and this court vide order dt. 9/4/08 has directed the Board to decide the application preferred by the petitioner in accordance with law. The petitioner has further stated that finally an order has been passed on 19/11/2008 rejecting the application of the petitioner on frivolous grounds and therefore the order is bad in law. The contention of the petitioner is that the Central Government in exercise of powers conferred under the provisions of Environment Protection Rules, 1986 has issued a Notification dt. 14/9/06 for imposing certain restrictions and prohibitions on new projects or activities or expansion or modernisation of --- 4 --- existing projects and a prior environment clearance is required. The contention of the petitioner is that prior approval is required in case of expansion and modernisation of existing project and his case does not fall within the definition of expansion nor within the meaning of modernisation and therefore the question of obtaining a no objection certificate from the pollution control board in respect of petitioner's mine does not arise. A reply has been filed on behalf of respondent No.3 and contention of the respondent No.3 is that the Government of India has issued a Notification dt. 14/9/06 in exercise of powers conferred under the Environment Protection Rules, 1986 and the petitioner cannot be permitted to carry out mining activities without obtaining a no objection certificate in respect of the Environment clearance from the State Level Expert Appraisal Committee constituted by the Government of India, Ministry of Environment and Forest. The respondents have further stated that the Notification issued by the Government of India provides for environmental clearance for mining in --- 5 --- respect of minor minerals also and the petitioner cannot carry out mining activities without obtaining clearance from the Pollution Control Board. A reply filed on behalf of the State Government also and the State Government has categorically stated that the petitioner who is carrying out mining activity in respect of minor mineral was required to obtain environment clearance certificate and as the petitioner has not obtained environment clearance certificate, the order was rightly passed by the Pollution Control Board and the consequential order has also rightly been passed by the Collector cancelling mining lease. The petitioner has filed a rejoinder and the contention of the petitioner is that the Government of India has earlier issued a Notification dt. 27/1/94 known as Environmental Impact assessment Notification 1994 in exercise of powers conferred under the Environment Protection Act, 1986 and Schedule I of the aforesaid Notification provides a list of projects which require environmental clearance from the Central Government. The contention of the petitioner is that --- 6 --- at Item No.20 of Schedule I Mining Projects (Major Mineral with leases of more than 5 hectares is mentioned) meaning thereby in case of a project of major mineral with lease of more than 5 hectares an environment clearance certificate is required. The petitioner has further stated that as per the provisions of MP Minor Mineral Rules, 1986 limestone falls under Schedule I, Item NO.5 and is certainly a minor mineral and therefore Notification of 1994 is not applicable in case of the petitioner. The petitioner has further stated that even if it is presumed for a moment that by virtue of Notification dt. 14/9/2006 a no objection certificate is required in respect of mining leases for an area more than 5 hectares, the petitioner is not required to obtain prior environmental clearance by virtue of a subsequent Notification dt. 2/7/07 issued by the Government of India. The petitioner has vehemently relied upon clarification issued by the Government of India dt. 2/7/2007 and the same makes it very clear that the earlier Notification of 1994 will continue to operate meaning thereby all such mining projects which do not require environment clearance under --- 7 --- the Notification of 1994 will be permitted to continue with mining project till the mining leases in respect of the project falls due for renewal. The contention of the petitioner is that his lease was renewed prior to 14/9/06 and he is required to obtain a clearance certificate now only in the year 2005, that too if he wishes to continue with mining activities thereafter and therefore the impugned order passed by the respondents is bad in law and deserves to be set aside. Heard learned counsel for the parties at length and perused the record. In the present case, it is an admitted fact that on 21/11/1975 a mining lease was granted in favour of the petitioner for excavation of limestone for a period of 20 years (Annexure P/1). The mining lease was renewed by an order dt. 28/5/98 and the same was extended upto 2015 w.e.f. 20/11/95. The Union of India in exercise of powers conferred under the provisions of Environment Protection Act, 1986 read with Environment Protection Rules, 1986 has issued a Notification dt. 27/1/94 after conducting a detailed environmental impact assessment and the aforesaid --- 8 --- Notification provides for environmental clearance certificate. The aforesaid Notification is on record as (Annexure P/14). Schedule I of the aforesaid Notification at Item No.20 provides for environmental clearance certificate in respect of mining projects (major minerals) with leases of more than 5 hectares. In the present case, as per the provisions of M. P. Minor Mineral Rules, 1996 limestone is specified at Item No.5 of Schedule – I appended to the Rules of 1996 and is a minor mineral and therefore environmental clearance certificate was not required at the relevant point of time in respect of limestone mining keeping in view the Notification of 1994 read with M. P. Minor Mineral Rules, 1996. The petitioner as he was not required to obtain environmental clearance from the Central Government continued with the mining activities by virtue of the lease granted in his favour on 21/11/1975 and the lease of the petitioner was renewed as already stated earlier, on 28/5/98 for a period upto 2015. The respondent No.3 M.P. Pollution Control Board issued a show cause notice to the petitioner on 11/4/07 directing the petitioner to show cause why all --- 9 --- mining activities should not be stopped as the petitioner has failed to comply with the provisions of Sec. 31(A) of the Prevention & Control of Pollution Act, 1981. The petitioner did submit a reply on 15/5/08 and finally an order was passed on 5/1/08 directing the petitioner to close down all mining operations. Mining lease in respect of land in question was also cancelled by the respondent No.2 – Collector by an order dt. 19/2/08. The petitioner was thereafter informed to obtain an environmental clearance in respect of limestone mine situated at village Rampura, Tehsil Kukshi Distt. Dhar and the petitioner submitted an application in prescribed format on 23/5/08. The contention of the petitioner is that his application was turned down by order dt. 19/11/98 on the ground that the petitioner does not have environmental clearance certificate as provided under the Notification issued by the Central Government dt. 14/9/06. This Court has carefully gone through the Notification issued by the Government of India dt. 14/9/06. The aforesaid Notification has been issued by the Central Government in exercise of powers conferred under the --- 10 --- Environmental Protection Act, 1986 read with Environmental Protection Rules, 1986 which provides for environmental clearance certificate by the State Level Environment Impact Assessment Authority. The Notification issued by the Government of India reads as under : S.O. 1533 Whereas a draft notification under sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 for imposing certain restrictions and prohibitions on new projects or activities or on the expansion or modernisation of existing projects or activities based on their potential environmental impacts as indicated in the Schedule to the notification being undertaken in any part of India unless prior environmental clearance has been accorded in accordance with the objectives of National Environment Policy as approved by the Union Cabinet on 18th May, 2006 and the procedure specified in the notification by the Central Government or the State or Union territory level Environment Impact Assessment Authority (SEIAA), to be constituted by the Central Government in consultation with the State Government or the Union territory Administration concerned under sub-section (3) of Section 3 of the Environment (Protection) Act, 1986 for the purpose --- 11 --- of this notification, was published in the Gazette of India, Extraordinary Part II, Section 3, sub-section (ii) vide number S.O. 1324 (E) dated the 15th September, 2005 inviting objections and suggestions from all persons likely to be affected thereby within a period of sixty days from the date on which copies of Gazette containing the said Notification were made available to the public. And whereas copies of the said notification were made available to the public on 15th September, 2005; And whereas all objections and suggestions received in response to the above mentioned draft notification have been duly considered by the Central Government. Now, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986 and in supersession of the notification number S.O. 60 (E) dated the 27th January, 1994, except in respect of things done or omitted to be done before such supersession, the Central Government hereby directs that on and from the date of its publication the required construction of new projects or activities or the expansion or modernisation of existing projects or activities listed in the schedule of this notification entailing capacity addition with change in process and or technology shall be undertaken in any --- 12 --- part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Government under sub-section (3) of Section 3 of the said Act, in accordance with the procedure specified hereinafter in t his notification. Requirements of prior Environmental Clearance (EC) :- the following projects or activities shall require prior environmental clearance from the concerned regulatory authority which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at state level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity. (i) All new projects or activities listed in the Schedule to this notification. (ii) Expansion modernisation of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector that is projects activities which cross the threshold limits given in the Schedule after expansion of modernisation. --- 13 --- (iii) Any change in product – mix in an existing manufacturing unit included in Schedule beyond the specified range. 3. State Level Environment Impact Assessment Authority :- (1) A State Level Environment Impact Assessment Authority hereinafter referred to as the SEIAA shall be constituted by the Central Government under sub-section (3) of section 3 of the Environment (Protection) Act, 1986 comprising of three Members including a Chairman and a Member Secretary to be nominated by the State Government or the Union territory Administration concerned. (2) The Member Secretary shall be a serving officer of the concerned State Government or Union territory administration familiar with environmental laws. (3) The other two Members shall be either a professional or expert fulfilling the eligibility criteria given in Appendix VI to this notification. (4) One of the specified Members in sub-paragraph (3) above who is an expert in the Environmental Impact Assessment process shall be the Chairman of the SEIAA. (5) The State Government or Union territory Administration shall forward the names of the Members and the Chairman referred in sub – paragraph 3 to 4 above to the Central Government and the Central Government shall constitute the SEIAA as an authority for the purposes of this notification within thirty days of the date of receipt --- 14 --- of the names. (6) The non-official Member and the Chairman shall have a fixed term of three years (from the date of the publication of the notification by the Central Government constituting the authority). (7) All decisions of the SEIAA shall be unanimous and taken in a meeting. It is evident from the aforesaid Notification that prior environmental clearance from the Central Government or from the State Level Environment Impact Assessment Authority is necessary in respect of mining activities. The Government of India, Ministry of Environmental & Forest has on 2/7/2007 clarified its earlier Notification dt. 14/9/2006 and the clarification issued by the Government of India reads as under : CIRCULAR Sub. : Clarification regarding applicability of EIA Notification, 2008 on mining leases of 5 hectare (major minerals) and mining lease of minor minerals which have been operating before 14.9.2008 – Regarding Federation of Mining Associations of Rajasthan and others have raised concern regarding applicability of EIA Notification dated 14th September, 2006 to mining leases of 5 ha., for major minerals and mining --- 15 --- leases of minor minerals which have been in operation before the said Notification coming into force. The matter has been examined in the Ministry. It is clarified that all such mining projects which did not require environmental clearance under the EIA Notification, 1994 would continue to operate without obtaining environmental clearance till the mining lease falls due for renewal. If there is no increase in lease area and / or there is no enhancement of production. In the event of any increase in lease area and or production, such projects would need to obtain prior environmental clearance. Further, all such projects which have been operating without any environmental clearance would obtain environmental clearance at the time of their lease renewal even if there is no increase either in terms of lease area or production. The aforesaid clarification makes it very clear that all such mining projects which did not require environmental clearance under the EIA Notification of 1994 would continue to operate without obtaining environmental clearance till their mining lease falls due for renewal and an environment clearance shall be required at the time of renewal of their lease. In case of the petitioner the lease was --- 16 --- renewed in the year 1998 and the Notification requiring environmental clearance was issued by the Government of India on 14/9/06. The lease is upto 2015 and therefore as it is not a case of renewal of lease after 14/9/06 the question of forcing the petitioner to obtain environmental clearance does not arise as the petitioner was not required to obtain environmental clearance under the EIA Notification of 1994. This Court is of the considered opinion that the order passed by the respondent Pollution Control Board for non compliance of Notification dt. 14/9/06 is therefore bad in law keeping in view the clarificatory circular dt. 2/7/2007 and deserves to be quashed and is accordingly quashed. In case of the petitioner the respondent No.2 Collector has also cancelled the Patta granted in favour of the petitioner only on the ground that the petitioner has not obtained environmental clearance certificate. Resultantly the order passed by the Collector is also bad in law and is hereby quashed. The writ petition is allowed. The impugned order dt. 5/1/08 (Annexure P/5),dt. 19/2/08 (Annexure P/6) and 19/11/08 (Annexure P/11) are accordingly quashed. --- 17 --- However, it is made clear that the petitioner in case of further renewal shall obtain necessary environmental clearance as clarified by the Government of India, Ministry of Environment and Forest vide Notification dt. 2/7/07. It is needless to mention that respondent No.3 shall also be free to take any other appropriate action against the petitioner in accordance with law for violation of any other statutory provision relating to environmental laws, if any. The petitioner in WP No. 5492 / 2010 was granted a quarry lease by the State Government on 31/10/96 and the quarry lease was renewed for a period of 10 years by an order dt. 26/8/04 meaning thereby, the lease was renewed prior to issuance of Notification dt. 14/9/06 issued by the Government of India and keeping in view the clarificatory circular of the Government of India, Ministry of Environment and Forest dt. 2/7/07, as lease was renewed prior to Notification dt. 14/9/06 the question of obtaining a clearance certificate from the State Level Impact Assessment Authority, does not arise. Resultantly, the writ petition is allowed. The impugned --- 18 --- order passed by the M. P. Pollution Control Board dt. 31/7/09 is hereby quashed. However, it is made clear that the petitioner in case of further renewal shall obtain necessary environmental clearance as clarified by the Government of India, Ministry of Environment & Forest, vide Notification dt. 2/7/07. It is needless to mention that respondent No.3 shall also be free to take any other appropriate action against the petitioner in accordance with law for violation of statutory provisions relating to environmental laws, if any. The Writ Petition is accordingly allowed. No order as to costs. (SHANTANU KEMKAR) (S. C. SHARMA) J U D G E J U D G E KR