CWP No.20134 of 2004 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.20134 of 2004 Date of decision: May 15, 2009. Vijay Bansal and others ...Petitioners v. State of Haryana and others ...Respondent(s) CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri Ravi Sharma, Advocate, for the petitioners. Ms. Madhu Dayal, Addl. Advocate General, Punjab for the petitioners. Shri Rameshwar Malik, Addl. A.G. Haryana Shri R.S.Longia, Advocate for Shri Arun Walia, Advocate for respondent No. 7 Shri Puneet Garg, Advocate for respondents No. 8 to 10 Shri Ajay Kaushik, Advocate for Union of India Shri Rajiv Atma Ram, Sr. Advocate with Shri BNS Sharma, Advocate for the applicant-intervenor (in CM No. 19595 of 2008) Shri Puneet Bali, Advocate for the applicant-intervenor (in CM No. 19648 of 2008). ORDER Surya Kant, J. - This order shall dispose of (i) CWP No.20134 of 2004 preferred by three Members of the District Bar Association, Panchkula, purportedly in 'public interest' with a prayer to give direction for investigation into the 'indiscriminate' and 'callous' mining operations in the lower Shivalik hills in District Panchkula, as well as (ii) CWP No.4758 of CWP No.20134 of 2004 -: 2 :- 2008 M/s Chandi Mandir Stone Crushers Consumers Company v. State of Haryana & Ors. challenging, clause 14 of the auction notice (Annexure P-5) and/or alternatively to direct the State of Haryana to obtain 'Prior Environmental Clearance' from the Govt. of India in terms of the notification dated 14.9.2006 (Annexure P-2) and to conduct auction of mining rights of the quarries thereafter only. The 'auction notice' (Annexure P-5) to the extent it entails pre-payment of 25% of the total bid amount at the fall of the hammer irrespective of refusal or grant of the 'Environmental Clearance', has also been impugned. [2]. To appreciate the nature of controversy, the brief facts of both the cases are being referred to separately. In the PIL (CWP No.20134 of 2004), the petitioners, inter-alia, have averred that the lower Shivalik ranges falling within the Districts of Panchkula, Ambala and Yamuna Nagar are drained by a number of non-perennial streams. Keeping the physical features of such like region in view that the Punjab Land Preservation Act, 1900 (in short the PLPA) was enacted to empower the State Govt. to notify the areas for 'conservation of sub-soil water and the prevention of erosion'. While Section 3 of the PLPA enables the State Govt. to notify the area(s) for issuance of directions to provide for the ‘conservation of sub-soil water’ and ‘prevention of erosion’, Section 4 empowers it to “regulate, restrict or prohibit by general or special order”, the quarrying of the stone, or the burning of the lime; the cutting of trees or timber or collection, removal or subjection to any manufacturing process of any forest products; setting the trees, timber or forest produce on fire, etc. [3]. The Forest Department, Govt. of Haryana in exercise of its powers under Section 3 of the PLPA issued a notification dated 27.11.1997 CWP No.20134 of 2004 -: 3 :- (Annexure P-2) specifying the areas comprising Kalka, Panchkula Tehsils (District Panchkula), Naraingarh, Brara Tehsils of District Ambala and Jagadhari, Chachhrauli Tehsils of District Yamuna Nagar for the 'conservation of ground water and to prevent land erosion in these areas'. The Forest Department thereafter issued another notification dated 28.11.1997 (Annexure P-3) under Section 4 of the PLPA whereby “the cutting of trees or timber except eucalyptus or poplar or the collection or removal or subjection to any manufacturing process, of any forest produce other than flower, fruit and honey save for bona fide domestic or agricultural purposes or for purpose of the right holders in the land...” was prohibited in areas which stood notified under Section 3 of the PLPA vide notification dated 27.11.1997 (Annexure P-2). [4]. The petitioners have referred to a report dated 31.8.2000 submitted by the Committee comprising the Sub Divisional Officer (Civil), Kalka, the Divisional Forest Officer, Morni, the Divisional Forest Officer, Kandi Project and the Mining Officer, Panchkula. The Committee which was constituted to conduct survey and submit report on the feasible areas for mining purposes, identified that three types of minor minerals, namely, boulders, bazri and sand were available in District Panchkula in different river beds and areas abutting thereto. The Committee went to each site of quarrying to find out the impact of restrictions imposed by the State Govt. in the mining permits or those notified by the Forest Department and noticed that with the passage of time, the quarrying of these minor minerals has begun posing a grave threat to the ecological balance of the area. It thereafter recommended that – (a) instead of giving mining contracts on revenue estate basis, the mining area should be demarcated by specifying CWP No.20134 of 2004 -: 4 :- the khasra numbers to minimize the illegal mining; (b) the quarries should be clubbed together by formation of feasible zones; (c) mining near the forest area and the foot-hills should be restricted to a reasonable distance to ensure safety of these areas; (d) the manpower in the Mining Office at Panchkula should be suitably increased; (e) the mining, however, should not be altogether banned as the raw materials for construction, namely, boulders, bazri and sand get replenished every time it rains and if there is no licenced mining, it would lead to illegal mining of these materials; and (f) two police personnel should be deployed with the mining staff for effective enforcement and to check unauthorized extraction of minerals in the District. [5]. The petitioners have also placed on record a copy of the DO letter dated 9.6.2005 (Annexure P-15) sent by the Deputy Conservator of Forests, Morni-Pinjore Forest Division, apprising the Deputy Commissioner, Panchkula that the auctioning of mining quarries in the area notified under Section 4 of the PLPA was illegal and requested him to cancel the mining contracts and provide police assistance to the staff of the Forest Department to stop illegal activities because, “at times the offenders belong to affluent strata of the society”. [6]. The petitioners maintain that notwithstanding the unequivocal prohibition against mining in the subject area imposed by the Forest Department or the recommendations made by the Committee, the entire area has become a den of the 'mining mafia' who operate under the alleged political patronage and minerals worth crores of rupees are being illegally extracted in connivance with and/or tacit support of the enforcement staff, including the District Administration. CWP No.20134 of 2004 -: 5 :- [7]. Separate counter affidavits have been filed by the Department of Mines and Zoology, Principal Chief Conservator of Forests and the Environment Department, State of Haryana. Relying upon section 3 (e) read with Section 14 and 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (in short the 1957 Act), the Mines and Zoology Department has averred that all the 'minor minerals' vest with the State Govt. who is empowered to make rules for regulating the quarries or other concessions in respect of 'minor minerals' and for the purposes connected therewith. Reference has been made to the Punjab Minor Minerals Concession Rules, 1964 (in short the 1964 Rules), as amended from time to time, which enable the State Govt. to grant contract for mining of 'minor minerals' for a period upto a maximum of 5 years. The Mining Department has asserted that 'mining contracts' in respect of the river beds are granted through 'public auction' and special conditions like prohibiting quarrying near the villages, culverts and banks are imposed and only those minor minerals which have got deposited in the river beds by the action of water are allowed to be extracted and that the said process in no way causes any ecological imbalance. The State Govt. is said to have prohibited the quarrying of minerals on the down-stream of the Ghaggar river in Panchkula upto the Punjab border and also upto village Choki for the protection of the 'bridge'. Similarly, quarrying is prohibited upto one kilometer upstream as well as downstream of the bridges on rivers Rajpur, Jhajri and Kaushalya near Pinjore. Quarrying is also banned in the revenue estate of various villages which are notified as 'forest lands'. The Department of Mines has further claimed that a total of 55 quarries in District Panchkula generate an annual revenue to the tune of Rs.9.5 crores CWP No.20134 of 2004 -: 6 :- to the exchequer. Allegations of illegal mining have been stoutly controverted. [8]. The Principal Chief Conservator of Forests, Haryana in his counter affidavit dated 10.3.2005 maintains that given the constraints of increasing population, changing attitude of people towards forests and the extent and volume of work, the provisions of the PLPA, the Forest (Conservation) Act, 1980 and the Indian Forests Act, 1927 are meticulously enforced. The Forest Department has not disputed the fact that the lower Shivalik hills falling in Panchkula District are mainly drained by barsati nullas and include a considerable area of hill tract. [9]. The Environment Department has filed a short counter affidavit pointing out that the State Govt. vide its notification dated 20.11.2001 has constituted a 'Designated Authority' for appraising and recommending the mining projects of 'major minerals' having an area of 5 hectares or less and 'minor minerals' irrespective of any area and that the mining contractors are required to get the 'Environmental Clearance' from the 'Designated Authority' prior to the commencement of the mining activity. [10]. Rejoinder and various additional affidavits have also been filed by the parties. [11]. During the course of hearing on 2.9.2008, while the petitioners held a grouse against the unabated illegal mining in the area, the State Counsel strongly refuted such allegations. We accordingly directed the Chief Judicial Magistrate, Panchkula to visit and inspect the area from Nadda Sahib upstream Ghaggar with the assistance of the Divisional Forest Officer, the Mining Officer and the Tehsildar, etc. The learned Chief CWP No.20134 of 2004 -: 7 :- Judicial Magistrate-cum-Local Commissioner vide her report dated 16.9.2008 found that even in the areas where ban had been imposed, “the mining activities had been carried out on the site as well as of the river bank” and despite her asking, “the Mining Officer was not able to show any agreement or any receipts for carrying on any mining operations there and the contractor failed to turn up there.”. She also noticed that some of the persons found extracting minerals could not show any receipts or the Sales-tax number, permission or licence for their activities in the areas “adjoining the restricted area”. The local commissioner was of the view that “the mining operations are going on and have been carried out in the recent past in the area from Chandi Mandir to Kedarpur”. [12]. Taking cognizance of the said report, we further directd the learned Chief Judicial Magistrate to submit a fact-finding report on the following aspects:- “1. What are the total number of mining licenses given on long term basis in the District of Panchkula; 2. Is any one of the said licence still valid and if so what is the date of their expiry; 3. What were the total extent of mining areas covered under each one of such licences and whether any environmental clearance was taken from the concerned Ministry, as required under the notification referred to by Mr. Malik; 4. what is the procedure being followed by the Mining Officer for issue of short term permits and whether the record reveals any adoption of transparent method for allotment of such permits; CWP No.20134 of 2004 -: 8 :- 5. How many such permits issued by the Mining Officer from the date of long term licenses have expired; 6. How many such permits are granted for an area stretching to more than five acres so as to attract the requirement of environmental clearance from the Ministry concerned; and 7. Is any part of the area authorized for mining under the short term permits covered by the notification issued under Sections 4 and 5 of the Punjab Land Preservation Act, 1900.” [13]. In compliance with the above, the learned Chief Judicial Magistrate, Panchkula submitted her 2nd report based on a study of the relevant record produced before her and the surprise visit of the area concerned. This report throws light on two distinct aspects. Firstly, the local commissioner found the procedure for allotment of 'short-term mining contracts' to be doubtful and unsatisfactory for want of any transparent method of inviting bids for such allotments as the so-called one or two offers received for different zones were from the same person though these were purported to have come from different persons/companies. Secondly, the 'illegal mining activities' were going on in the entire upstream area starting from the Nadda Sahib as noticed by the local commissioner during a surprise visit to the mining areas at Fatehpur Kedarwala, Kotian, Diwanwala and Raipur. [14]. A brief reference to the facts of the connected case, i.e., CWP No.4758 of 2008 may also be made at this stage. The petitioner – company owns multiple stone crushers and deals in the 'sale of sand, gravels and boulders'. It has challenged the auction notice dated 10.3.2008 (Annexure P-5) to the extent it provides that “mining will be allowed to be commenced CWP No.20134 of 2004 -: 9 :- only after prior environmental clearance from competent authority, as required under notification dated 14.9.2006 issued by the Ministry of Environment and Forests, Govt. of India”. The main grievance of the petitioner, however, revolves around the Notification dated 14.9.2006 (Annexure P-2) issued by the Central Govt. in exercise of its powers under section 3(2) of the Environment (Protection) Act, 1986 read with rule 5(3) (d) of the Environment (Protection) Rules, 1986. According to the petitioner, the afore-stated notification has no applicability in the case of “minor minerals” which are different from the “minerals” as is implicit from the distinct definitions of these two expressions in the 1957 Act. The petitioner asserts that the Notification dated 14.9.2006 would require compliance only for the start of a new project or activity or if there is expansion/modernization of the existing projects or activities. The petitioner's 2nd grievance is that the 'prior environment clearance' should be obtained by the Department of Mining (and not by the contractor/lessee) before the State Govt. puts the quarries to public auction. The penal consequences like forfeiture of 25% of the bid money to be deposited by the highest bidder at the fall of hammer etc. are also being assailed. [15]. The State of Haryana has filed its counter-affidavit explaining that the Central Govt. notification dated 14.9.2006 applies to the mining of 'major' as well as 'minor' minerals and that the 'prior environmental clearance' is required by the lessee/contractor and not by the authorities “from whom the project proponent obtains licence/lease/contract...”. According to the respondents, the assessment of the impact to be caused due to the activity to be undertaken by the project proponent can be made only after he discloses the method of working, plant and machinery to be CWP No.20134 of 2004 -: 10 :- deployed and the quantity of the material to be produced. The respondents have also defended their order-cum-notice dated 10.3.2008, dividing the minor mineral quarries in District Panchkula into 10 zones for the purpose of granting mining contracts for a period of 5 years and an additional period of one year for obtaining the 'environmental clearance'. Similarly, grant of 'short-term permits' during the period of one year slated for seeking the 'environmental clearance', is sought to be justified on the plea that the closing of mining quarries would cause shortage of the building material, thereby adversely affecting the development works and also resulting into unemployment of the labourers working in the quarries and other connected activities besides the loss to the State revenue. The respondents have also taken a categoric stand that the notification dated 14.9.2006 applies to those areas also where the mining activities were going on before it was issued as every new contract will amount to be a new activity. [16]. Before we formulate the issues involved, the legal support behind the Notification dated 14.9.2006 may also be briefly summed up. [17]. The Parliament enacted the Environment (Protection) Act, 1986 (in short the 1986 Act) to “protect and improve the environment and for the prevention of human beings, other living creatures, plants and property”. Section 2(a) expansively defines the expression “environment” which includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property. Section 2(c) defines “environmental pollution” to mean the presence in the environment of any environmental pollutant, i.e., any solid, liquid or gaseous substance which is injurious to environment. Section 3 empowers the Central Govt. to take CWP No.20134 of 2004 -: 11 :- measures to protect and improve the quality of environment and to prevent, control and abate environmental pollution. These measures include the restriction of areas in which any industries, operations or processes etc. shall not be carried out or shall be carried out subject to certain safeguards. Section 3(3) provides for constitution of more than one authorities who shall exercise such powers as may be conferred by the Central Govt. Section 5 begins with a non-obstante clause and empowers the Central Govt. to issue directions in writing to any person, officer or an authority who shall be bound to comply with such directions. Section 24 establishes the legislative supremacy and over-riding effect of the Act over any other inconsistent piece of legislation and reads as follows:- “24. Effect of other laws.- (1) Subject to the provisions of sub- section (2), the provisions of this Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. (2) Where any act or omission constitutes an offence punishable under this Act and also under any other Act then the offender found guilty of such offence shall be liable to be punished under the other Act and not under this Act.” [18]. The Environment (Protection) Rules, 1986 have been enacted in exercise of powers given under Section 6 and 25 of the 1986 Act. Sub- rule (3) of rule 5 provides that whenever it appears to the Central Govt. to be expedient to impose prohibition or restrictions on the location of an industry or carrying on of processes and operations in an area, it may, by notification in the official gazette and in such other manner as it may deem CWP No.20134 of 2004 -: 12 :- fit, give notice of its intention to do so and after inviting objections thereto, publish the notification imposing the prohibition or restrictions etc. [19]. In exercise of its powers under Section 3 of the 1986 Act read with Rule 5 of the 1986 Rules that the Ministry of Environment and Forests, Govt. of India published a draft notification on 15.9.2005 proposing to impose certain restrictions and prohibitions on new projects or activities, or on the 'expansion' or 'modernization' of the existing projects or activities based on their potential environmental impacts, being undertaken in any part of India, unless 'prior environmental clearance' has been accorded in accordance with the National Environment Policy. After considering the objections and suggestions received in response to the draft notification that the notification dated 14.9.2006 (Annexure P-2) was issued mandating that henceforth “the required construction and new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity option with change in process and/or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Govt. or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Govt. under sub-section (3) of Section 3 of the said Act....”. [20]. Clause (2) read with Clause (4) of the notification provides that in respect of the matters falling under ‘Category A’ in the Schedule, ‘prior environmental clearance’ shall be obtained from the Central Govt. in the Ministry of Environment and Forests on the recommendations of the Expert Appraisal Committee and for the matters falling under ‘Category B’, such 'prior environmental clearance' shall be obtained from the 'State CWP No.20134 of 2004 -: 13 :- Environment Impact Assessment Authority' on the recommendations of State/Union Territory level Expert Appraisal Committee. [21]. Clause (3) of the notification provides composition of the’State Level Environmental Impact Assessment Authority' to be constituted by the Central Govt. whereas Clause (5) lays down that the 'Expert Appraisal Committees' at the Central level and the 'State Level Expert Appraisal Committee' at the State/Union Territory level, shall screen, scope and appraise the projects or activities falling in Category 'A' and Category 'B' respectively. [22]. The “mining of minerals” in an area of 50 hectares or above, is one of the projects/activities included at Sr. No.1(a) in Category 'A' of the Schedule which means that save as otherwise provided or interpreted, 'prior environmental clearance' is required to be obtained from the Central Govt. in the Ministry of Environment and Forests on the recommendations of the Expert Appraisal Committee. [23]. An application seeking 'prior environmental clearance' is to be made in the prescribed Form-1, after identification of the prospective sites for the projects/activities to which the application relates to before commencing any construction activities or preparation of land at the site. The applicant needs to furnish along with the application “a copy of the pre-feasibility project report” put in the case of construction projects or activities, a copy of the conceptual plan instead of the pre-feasibility report is required to be appended. The environmental clearance process comprises a maximum of four stages though all of them may not apply to a particular case. These four stages are – (i) screening (only for Category B cases); (ii) scoping; (iii) public consultation; and (iv) appraisal. CWP No.20134 of 2004 -: 14 :- [24]. On a cursory glance at Form-1 (Appendix 1) one finds that an applicant is obliged to furnish details in respect of – (i) physical changes in the typographic/land use/water bodies etc., if any, on account of construction, operation and de-commissioning of the project; (ii) use of natural resources such as land, water, materials or energy for the construction or operation of the project; (iii) use, storage, transport, handling or production of substances or material to be harmful to human health or the environment or raise concerns about actual or perceived risks to human health; (iv) production of solid-wastes during construction/operation/de-commissioning; (v) release of pollutants or any hazardous toxics or noxious substances into air; (vi) generation of noise and vibration and emission of light and heat; (vii) risks of contamination of land or water from the release of pollutants into the ground or into sewers, surface water, ground water, coastal water or the sea; (viii) risk of accidents during construction or operation of the project which could affect human health or the environment; (ix) factors which could lead to environmental effects or the potential for cumulative impacts with either existing or planned activities in the locality; and (x) environmental sensitivity, if any, like Areas protected under international conventions, national or local legislation for their ecological, land-scape, cultural or other related value. [25]. Appendix-B of the notification enlists the minute details to be provided under different sub-heads of the ten columns of the Application Form, broadly referred to above. Appendix-III thereto prescribes the format of generic structure of environmental impact assessment documents. Appendix-IV lays down the procedure for conduct of public hearing whereas Appendix-V prescribes the procedure for appraisal. Appendix-VI CWP No.20134 of 2004 -: 15 :- descripts the composition of