[2009) 9 S.C.R. 998

-· --t A

M.C. MEHTA v.

UNION OF INDIA AND ORS.

I.A. No. 1967 In I.A. No. 1785

In B Writ Petition (C) No. 4677 of 1985

MAY 08, 2009

[K.G. BALAKRISHNAN, CJI., DR. ARIJIT PASAYAT AND

S.H. KAPADIA, JJ.] c Environmental Law:

Ecology - Protection of, vis-a-vis mining activities - Mining activities in Aravalli Hills Range - Held : All mining

D 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

E 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.

F Environmental Law:

Sustainable Development - Precautionary Principle - Concepts of 'balancing' and 'banning' - Explained - Constitution of India, 1950 - Articles 21, 48-A and 51-A(g).

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 H 998

1--

..,, ..

M.C. MEHTA v. UNION OF INDIA AND ORS. 999

extensive mining activities. Keeping in view ecological A 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 B 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 But the delegation in favour of the States stood withdrawn.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 c 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 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 E 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 H

A 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 B 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 c 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

0 till remedial meau.re!.! are taken and duly certified by the various comp@i!t uthorities which are in-charge of granting clearancs. (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 F 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-

G 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

., ..

M.C. MEHTA v. UNION OF INDIA AND ORS. 1001

comes within the concept of "banning". It is a matter of A 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] B

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 C 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 D 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 E 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.

F 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]

G 2.2. In the circumstance, by the present order, the _,,.

Court suspends all mining opErations 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 H

A 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 B 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 C 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, H K.K. Venugopal, P.S. Patwalia, Soli J. Sorabjee, Mukul Rohtagi,

M.C. MEHTA v. UNION OF INDIA AND ORS. 1003

' Siddhartha Chowdhury (A.C.), A.D. N. Rao (A.C.), Kamal A 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.) B 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 c 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, D i Praveen Gupta, Chitralekha Sen (for Dr. Kailash Chand),

~ 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, E 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 -

~ Kasana, Baldev Atreya, Aman Preet Singh Rahi, D.K. Tripathi, Tushar bakshi, Dr. Surat Singh, Jagdev Singh, Ashok K.

Mahajan, Sanjay R. Hedge, Anil Mishra, Rohan Singh, R.

Gopalakrishnan, Sanjay Sen, Sukumar, Ravi Kant, K. Johny Joseph, Sheil Sethi, Bhupender Yadav, S.S. Shamsherry, R.C.

Kohli, Saket Sikri, Madhu Sikri, K.V. Mohan, S.K. Dubey, K.B.

Thakur, Amit Kumar, Shashi B. Upadhyay, E.M.S. Anam, Surya

Kant, Kavita Wadhwa, B.V. Balaram Das, Pravir Chaudhary, G

..,,.,.

Shweta Garg, Anil Kumar Jha, Ambhoj Kumar Sinha, Ashwarya Sinha, D.N. Ray and Sumita Ray for the appearing parties.

The Judgment of the Court was delivered by - H

...

A S.H. KAPADIA, J. 1. Has the situation (optimization of land

and ecological degradation in an area admeasuring approximately 448 sq. kms. in the Aravalli Hill Range falling in the Districts of Faridabad and Gurgaon including Mewat) predicted in para 89 of the Judgment in M.C. Mehta1 case B come about so as to warrant total stoppage of mining activity as stated in para 96(6) of the said judgment; and if so, what should be the duration of such ban/stoppage?

2. In this connection, at the very outset, we quote paras 89 c and 96(6) of the said judgment, which read as follows:

"89. It may be reiterated that if, despite stringent conditions, the degradation of environment continues and .. reaches a stage of no-return, this Court may have to consider, at a later date, the closure of mining activity in D areas where there is such a risk."

~ "96(6) The Aravalli hill range has to be protected at any " cost. In case despite stringent conditions, there is an adverse irreversible effect on the ecology in the Aravalli

E hill range area, at a later date, the total stoppage of mining activity in the area may have to be considered. For similar reasons such step may have to be considered in respect of mining in Faridabad district as well." ..,._

~ .. 3.

History of the relevant Orders passed by this F Court:

(i) On 6.5.2002 the following Order was passed:

"IA No. 1785

2. Issue notice. Mr Bharat Singh accepts. Reply be

~ filed within four weeks. Rejoinder be filed within four weeks ...,.__ thereafter. In the meantime, within 48 hours from today the Chief Secretary, Government of Haryana is directed to stop all mining activities and pumping of groundwater in H -

M.C. MEHTA v. UNION OF INDIA AND ORS. 1005

[S.H. KAPADIA, J.) • and from an area up to 5 km from the Delhi-Haryana A border in the Haryana side of the ridge and also in the Aravalli hills.• (emphasis supplied)

(ii) On 29/30.10.2002 the following Order was passed:

"ILLEGAL MINING IN ARAVALLIS B

' ' ... We, prohibit and ban all mining activity in the entire Aravalli hills. This ban is not limited only to the hills encircling Kote and Alampur villages but extends to the entire hill range of Aravalli from Dholpur to Rajasthan. The c Chief Secretary, State of Haryana and Chief Secretary, State of Rajasthan are directed to ensure that no mining activity in the Aravalli hills is carried out, especially, in that part which has been regarded as forest area or protected under the Environment (Protection) Act." (emphasis D i supplied) • (iii} On 31.10.2002 the following Order was passed:

"IA No. 1785 in IA No. 22 and in WP No. 4677of1985, all /As and WPs on board E

It is represented Iha~ applications have been filed ! with regard to environment impact assessment, and for ' approval of plans with regard to the mining activity which was proposed by the applicants/leaseholders. The said F applications have to be dealt with in terms of the notification dated 27-1-1994 of the Ministry of Environment and Forests. The said notification relates to environment impact assessment of development projects. It appears . that environment clearance has not been obtained and the G ) learned counsel submit-that the applicants/leaseholders -- cannot be faulted for this .

It is quite obvious that on the principle of sustainable

development, no mining activity can be carried out without

remedial measures taking place~For this purpose, it is H

• A necessary that environment impact assessment is done i

and the applications dealt with before any mining activity can be permitted.

Counsel will give on the next date of hearing list of

B applications which were filed, so that the Ministry of Environment can be put to notice and be required to deal with. those applications and to dispose of them within a period to be specified by this Court.

Liberty to file additional affidavits given. c The State of Haryana will also explain on the next date of hearing as to whether royalty payable to the villages has been given or not. To come up on 25. 11.2002:" •

D (iv) On 16.12.2002 the following Order was passed:

"/As 828, 833, 834-835, 837-838, 839, 840, 846 & 847 • One of the aforesaid applications has been filed by the State of Rajasthan seeking modification or clarification

E to the effect that the order dated 29/30th October 2002 would be applicable only to illegal mines in the Aravalli hills. IA 840 has been filed by Mis. Gurgaon Sohna Mineral and Anr. seek!ng similar relief. Applications have also been r filed by State of Haryana and other parties. ' F We have heard learned counsel. On 29th/30th October, 2002 this Court prohibited and banned the mining activities in the entire Aravalli hills. This ban, it was directed, is not limited only to the hills encircling Kole and Alampur villages but extends to the entire hill range of G Aravalli from Haryana to Rajasthan. The Chief Secretary, State of Haryana and State of Rajasthan were directed to

ensure that no mining activity in the Aravalli hills is carried out, especially in that part which has .been regarded as Forest Area or protected under the Environment H (Protection) Act. . '

M.C. MEHTA v. UNION OF INDIA AND ORS. 1007

[S.H. KAPADIA, J.] • On consideration of the report of Central Empowered A ' Committee dated December 14, 2002, we issue the

following further directions:

(1) Mining may be permitted in Forest Areas where specific prior approval under Section 2 of the Forest (Conservation) Act, 1980 has been accorded by the 8

Ministry of Environment and Forest, Government of India.

However, in view of this Court's order dated 14.2.2000 passed in I.A.No. 548 no mining activity is permitted within areas which are notified as Sanctuary, National Park under c Sections 18, 35 of the Wild Life (Protection) Act, 1972 or any Sanctuary, National Part or Game Reserve declared under any other Act or Rules made thereunder even if prior approval have been obtained from the MOEF under the F.C. Act in such an area.

D ..

(2) Under Notification dated 29th November, 1999 .. issued under Section 23 of the Environment (Protection) Act for certain Districts including Gurgaon District in the State of Haryana, the Ministry has delegated power to . grant approval for mining purposes to the State. The E ' mining activities are being regulated under the Notification dated 7th May, 1992 issued by the Ministry of Environment 1 and Forest (Annexure A-1 in IA No. 833). We direct that, for the time being, no mining shall be permitted within the areas of Gurgaon District in the State of Haryana where F mining is regulated under the Notification dated 7.5.1992 issued under Section 3 of the Environment (Protection) Act, pursuant to permission granted after 29 November, 1999.

~ Meanwhile, the Central Empowered Committee G

)>' 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 wich 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 c 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 D of hearing.

In respect of suggestion 7 and 8, the Union of India will f

~ respond on the next date of hearing.

E 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:

Wherever requisite approval/sanctions in the said t .....

F 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.

G 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 H 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." A (emphasis supplied)

I. Reasons behind Order dated 29130. 10.2002 imposing total ban:

4. The question to be answered at the outset is why did 8

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 C 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 D 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 E 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 F 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 G 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.

A Therefore, by Order dated 29/30.10.2002, when this Court

I,. 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 c 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 terms of

D 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

E 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

F impossible. This Court further found that mining leases were granted by the State in areas where plantations were

underaken with the financial assistance provided by international donor agencies. That, mining was permitted in a manner which was destroying the groundwater table as also

G 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.

M.C. MEHTA v. UNION OF INDIA AND ORS. 1011

[S.H. KAPADIA, J.]

, I_ Ill.

Consequences of Continuous Violation of the A ' 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 B breach. The Aravallis, the most distinctive and ancient mountain chain of Peninsular India, mark the site of one of the oldest

; ii., geological formations in the world. Due to its geological location, desertification is stopped a11~ it prevents expansion of the desert into Delhi. On account of extensive mining on a c 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 D 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 E to minimize the impact due to mining in the eco-sensitive zones. CMPDI also noticed that in the Aravalli Hills a large

1 number of activities, operations of stone crushers and .... deforestation had caused environmental degradation even in 2002 which is clear from para 63 of the above judgment in M. C.

F 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 G 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 H

as it generates revenue for the State. However, vide para 89,

A 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 B 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 c 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

D 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

~ -< window was left open for this Court to impose complete ban on mining operations if emergent situation arises. The decision

E to ban/suspend mining in the above area has been taken by State of Haryana (see Minutes of the Meeting dated 7.1.2009 annexed as Exhibit R/4 to the Second Report dated 15.1.2009 of CEC). In the said meeting held on 7.1.2009, a consensus .has been reached between CEC and the State of Haryana to fl ... declare the entire Aravam Hill Range falling in the Districts of F Faridabad and Gurgaon including Mewat as a "Prohibited Zone" so far as mining of major mineral is concerned. The decision of State of Haryana is also supported by MoEF, as submitted by Shri Parag Tripathi, learned Additional Solicitor General.

IV.

Breach of Relevant Rules and Consequences thereof:

(a) Mining Projects:

/ H

8. _Nature has endowed' India with a wide variety of

M.C. MEHTA v. UNION OF INDIA AND ORS. 1013

[S.H. KAPADIA, J.] .,

temperate and tropical forests. The Earth has not only provided A ridges, fauna, flora to India but immense mineral treasures with great potential for economic exploitation. At the same time, our economy is facing problems on account of rising population, indiscriminate industrialization, unsustainable exploitation of natural resources etc. Mining sector is regulated by a large 8 number of environment and forest statutes. The Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986 were enacted to implement the decisions taken in United Nations Conference on Human c Environment in 1972 at Stockholm. These environment and forests statutes interact with mining regulations under Mines and Minerals (Development and Regulation) Act, 1957; Mineral Concession Rules, 1960; Mineral Conservation and Deveiopment Rules, 1988. On account of depletion of the forest D '( cover,.we have the Forest (Conservation) Act, 1980, which was ).

enacted to regulate the diversion of forest area for non-forest purposes. Similarly, under the EP Act, 1986 we have several notifications, including Environment Impact Assessment Notification 1994. At the same time, mining comes under the E purview of large number of mining statutes which are required to be implemented inter alia by State Forest Departments, 1 State Pollution Control Boards, Forest Advisory Committee(s), MoEF etc. The grant of mining leases (major and minor minerals both, including quarry leases, quarry permits, short F term permits etc.) inside forest areas coming under the purview of Section 2(ii) of Forest (Conservation) Act, 1980. It applies to mining leases. It is important to note that in order to operate mining inside the forest area, the lessee is required to possess clearances under Mines and Minerals (Development and Regulation) Act, 1957 ("1957 Act"); under Section 2(ii) of Forest G (Conservation) Act, 1980; and to Environment Clearance under EIA Notification which applies to mining of major minerals and to the areas exceeding 5 hectares. In case of mining projects, a Site Clearance is also required which is issued either by the Central Government or the State Government depending upon H

1- .,

A the area of land let out on lease. Further, Section 2(ii) of Forest (Conservation) Act, 1980 prohibits grant or renewal of mining lease without prior approval of Central Government.

(b) Mining Plan:

9. Mining plan is prepared with the object of providing a systematic working of mine after considering every aspect of

~ the background information, plant, machinery, method of working, object of mining, mining operations and reclamation of mined out areas. It is a mandatory document comprising c information about leasehold area showing nature and extent of mineral body, prospecting data, details of geology including mineral reserves, method of mining, manual mining, mechanised mining, nature and extent of water bodies, forest areas, density of the trees, protective areas, environment D impact assessment of mining activity on forest, land surface, 'I details of ecological restoration of area, land reclamation, use ..

of pollution control devices and plans for excavation from year to year for 5 years and such matters and measures as may be directed by the Central Government or the State Government .

E (see Handbook of Environment & Forest Legislations, Guidelines and Procedures in India by Ravindra N. Saxena and Sangita Saxena at p. 1529). The concept of mining plan applies to cases of mining of major minerals.

F. (c) Environmental Management Plan:

10. Rule 22(5) of Mineral Concession Rules, 1960 provides for various components of a mining plan. Every mining plan has to indicate limits of reserves, density of trees, assessment of impact of mining activity on forests, land surface and scheme ,, G for restoration of the area by afforestation, land reclamation and such other measures as may be directed by the Central Government from time to time. The mining plan includes Environmental Management Plan which must indicate the area degraded due to quarrying, dumping etc., a statement on

H Environment Impact Assessment giving details of the impact

M.C. MEHTA v. UNION OF INDIA AND ORS.

[S.H. KAPADIA, J.]

of mining on environment over a period of next 5 years, details A regarding abandoned quarries/pits, measures to control erosion of watercourses, treatment and disposal of water from the mines and reclamation of mined out areas (see Handbook of Environment & Forest Legislations, Guidelines and Procedures in India by Ravindra N. Saxena and Sangita s Saxena at pp. 1544-46).

(d) Breaches:

11. As stated above, as far back as 18.3.2004 this Court noticed that in large number of cases no requisite clearances C for mining operations were obtained. No environmental management plan was prepared. In some cases, mining operations were carried out below groundwater table.

Groundwater was even extracted without obtaining clearances [see M.C. Mehta's case (supra)] The paradox is that there is D no ";!earth of enactments, the problem lies in non-compliance and as a result mining on extensive scale without Approved Plans and without taking remedial measures has led to land . and ecological degradation. At this stage, one point needs to be highlighted. Over the years, the focus was on individual E mining leases. Over the years, this Court tried to balance mining operations vis-a-vis environmental protection. Even after noticing non-compliance of above Rules as far back as 2004, this Court, after sounding a warning to the existing mines to comply with the Rules, did not suggest a complete ban on F mining operations so long as it was possible to undertake such operations on the principles of sustainable development.

However, the position did not improve. The position worsened.

In the circumstances, the Court has now decided not to focus only on individual sites but to take a macro view of the matter, G particularly while deciding the question of suspending mining operations. The Court is required to take a holistic view. It is important to note that most of the Applicants who are seeking to mine today in the virgin areas have mined out areas in the past without taking remedial measures. They have bandoned H

~ A the sites after mining without rehabilitation of the degraded

lands and the consequence is devastation. As stated above, in 2004 this Court detected many cases where operations were done without proper environment management plan,

mining plan etc. In this Order we are not examining faults of

B individual user agencies. Suffice it to state that when these mines operated without proper clearances in the past they have left pits/quarries without reclamation and without compliance of

~ the provisions of the mining plan. Today, it is too late in the day . to say that leases granted subsequently complies with various c clearances because these 1essees which operated mines earlier have left the pits/quarries open to the sky without taking remedial measures including reclamation. In this Order what we are emphasising is extensive mining and not individual unauthorised mining because even in the case of former no steps

D to re-habilitate was ever taken. The result is that mining _operations have been carried out on a disproportionate scale ¥\ in the Aravalli Hill mainly in Gurgaon and Faridabad including

Mewat in the State of Haryana. The satellite images indicate the devastation caused to the area by the extensive mining

E operations. Extraordinary situation demands extraordinary remedies. In the circumstances, we are of the view that mining operations should be immediately suspended in the above Area. 1

v. Net Effect of Orders passed by this Court earli(fJr on

F 6.5.20022, 29130.10.20023; 16.12.20024, 13.4.200(35 and Judgment dated 18.3.200"6 in M.C. Mehta's case:

12. One of the points argued on behalf of the lessees before us was that on 6.5.2002 this Court directed State of Haryana to stop all mining operations in and around an area G 2. 2004 c12) sec 188.

In I.A. No. 827 etc. in W.P. (C) No. 202195.

2003 (1) SCALE 4.

5 . .2006 (11) sec 582 at para 5. .

H 6. 2004 (12) sec 118.

M.C. MEHTA v. UNION OF INDIA AND ORS. 1017.

[S.H. KAPADIA, J.]

)(_

up to 5 km. from Delhi-Haryana border on the Haryana side of A

~ the ridge and in Aravalli hills. That, after considering the second Monitoring Report .. of CEC dated 28.10.2002 a complete ban was imposed on mining in the Aravalli hills vide Order dated 29/30.10.2002, which stood modified and clarified on

16.12.2002. According to the lessees after the Order dated B 16.12.2002 there was no prohibition on mining. According to

_'( the lessees despite wide scale degradation being noticed by this Court in M.C. Mehta case (supra) this Court did not impose complete ban on mining operations but, on the contrary, this Court issued guidelines vide para 96 of the said judgment. It c was argued that in the circumstances this Court cannot go behind Judgment and Order dated 18.3.2004 in M.C. Mehta ... case (supra) .

13. We find no merit in this argument. To decide this point, D we quote hereinbelow para 8 of the Order dated 13.4.2006 reported in 2006 (11) sec 582:

'We have examined the orders dated 6.5.2002, 29/ 30.10.2002, 16.12.2002, the judgment dated 18.3.2004 in M.C. Mehta and affidavits placed on record. It seems clear E that the order dated 6.5.2002 was confined to the limit of 5 km and did not prohibit mining in the entire Aravalli hills l in the State of Haryana. The mining in the entire Aravalli - hills was prohibited and banned by the order dated 29/ 30.10.2002. This order was, however, modified and F clarified on 16.12.2002."

14. We also quote para 96 of the judgment in M.C. Mehta case (supra) which reads as follows:

t "(a) no mining can be carried out where the mine owners G ...,,,. have reached the water table. (In fact this Court recorded in para 84 the undertaking given by mine lessees not to mine in the area where water table had been reached during mining).

' )( A (b) no mining can be carried on in areas which are subject matter of notifications under Section 4 and/ ....,. or 5 of the Punjab Land Preservation Act, 1900.

However, even in these areas mining can take place after seeking permission under section 2 of B the Forest (Conservation) Act. (see para 89);

(c) No mining can be carried on in areas where plantations have been undertaken under the Aravalli }.,

project (EU funded project); and c (d) Environmental clearance is mandatory under the Environment Notification dated 27.1.1994."

15. It is true that, complete ban was imposed on mining ...

Aravalli hills vide Order dated 29/30.10.2002, which came to

D be modified by Order dated 16.12.2002 and it is equally true that, vide judgment in M. C. Mehta case (supra), this Court observed that it was not suggesting a complete ban on mining operations so long as it is possible to undertake mining operations on the sustainable development principle (see para

E 57). At the same time, in paras 89 and 96(6) of the judgment dated 18.3.2004 this Court specifically suggested that if degradation of environment continues and reaches the stage of no return, this Court may consider closure of mining activities. 1 In other words, a gateway was provided for this Court to impose - F the ban in future if degradation of environment becomes irreversible.

VI. Contentions and Answers thereto:

16. In I.A. No. 1967/06, it has been submitted by Shri Anil

G Diwan, learned senior counsel appearing on behalf of the

~ lessee (M/s Sethi Brothers) that the order dated 6.5.2002 was ..... passed in I.A. No. 1785/01 moved by Delhi Ridge Management Board complaining of falling water level in the sanctuary near Delhi-Haryana border. On account of the falling water levels, the

H. said order dated 6.5.2002 came to be passed, consequently,

; M.C. MEHTA v. UNION OF INDIA AND ORS. 1019 " "(

[S.H. KAPADIA, J.]

.... mining activities within 5 km in the Districts of Faridabad and A - Gurgaon including Mewat came to a halt. Later en, the concerned lessees moved an application for modification of the above order on which application this Court directed PCA to inspect the mines within 5 km and to give its report. EPCA conducted 2 inspections and gave its report, which are set out in the judgment in M.C. Mehta case (supra) dated 18.3.2004.

.4( The CEC also gave three reports which are set out in the said ... judgment. According to the learned counsel, after referring to the Reports, vide para 96, this Court gave directions, which made environmental clearance mandatory under environment c Notification dated 27.1.1994. This Court also appointed Monitoring Committee to inspect individual mines. According to the learned counsel, in the above judgment in M. C. Mehta case (supra), this Court had noticed violation by leaseholders

and after extensive analysis of the provisions of 1957 Act D

~ observed that the Court needs to balance the twin objectives of mining based on the principle of sustainable development.

According to the learned counsel, even under various reports submi"ed by CEC, the Committee did not recommend a ban on mining within 5 km. but it recommended a ban up to 2 km E from Badkhal Lake. However, EPCA recommended a ban of 5 km from Delhi-Haryana border, which according to the 1 learned counsel, came to be rejected by this Court by issuing

......... -1 directions, as mentioned hereinabove. It is further pointed out that apropo the directions contained in the judgment in M. C.

Mehta case (supra) the Monitoring Committee inspected the F mines. There was difference of opinion between the members.

The official members of that Committee, however, recommended resumption of mining activities according to the •

guidelines aid down in the above judgment in M.C. Mehta case (supra). In short, it was submitted on behalf of the lessees that G at no point of time this Court suggested or recommended or imposed ban of mining operations even after noticing noncompliance of the Rules. Therefore, according to the learned counsel, in the present case, banning should be resorted to only . if there are no other options left. Further, according to the H

learned counsel, a ban can be placed only if material is brought ,\

A on record to indicate so called devastation to the ecology as - pleaded by the learned amicus curiae. According to the learned counsel, in the present case, there is no such material justifying a complete ban on mining operations. It is also urged

B by the learned counsel that in pursuance of the directions contained in para 96 of the judgment, MoEF considered applications submitted by Sethi Brothers for EIA and after )lo.. extensive deliberations, MoEF granted environmental clearance to its two projects n the ground that the leases had - c not reached the water table, that the leases were not subject matter of Notifications under Section 4 and 5 of the Punjab Land Preservation Act, 1900 and that no mining has been carried out in areas where plantation has been undertaken. ,,.

17. We do not find merit in these arguments. As stated D hereinabove, after taking a macro view based on the satellite

""' images, we have come to the conclusion that this matter needs to be looked at holistically. This exercise which we have undertaken is not projecf-specific. Moreover, Sethi Brothers might have obtained clearances for two projects as of date but E in the past they have carried out mining operations, which according to the learned amicus curiae, has been done without complying with the aspect of Rehabilitation. In this connection, 1 it is important to note that in para 18 of the judgment in M. C.

Mehta case (supra), 1his Court detected Sethi Brothers

.....~.

F operating in a different sites in the Area without requisite clearances and without environmental management plan.

Number of sites have been excavated in the past without clearances, which is indicated in para 18 of the said judgment.

It is on account of absence of remedial measures qua those

G sites that today environment and ecology which are national • assets and which are governed by inter-generational equities stand devastated and which leaves no option to the Court but to ban the mining operations till remedial measures are taken and duly certified by the various competent authorities which

H are in-charge of granting clearances. As stated above, even

M.C. MEHTA v. UNION OF INDIA AND ORS. 1021

[S.H. KAPADIA, J.]

in the case of M.C. Mehta (supra) it has been categorically A ' observed that if despite stringent conditions, the degradation ,.., of environment continues and reaches a stage of no return then the Court may consider closure of mining activity in the area.

Over the years, this Court has given latitude to user agencies with the hope that they would comply with stringent conditions 8 including taking of remedial measures but that hope stands belied. Hence, we find no merit in the above contentions --\ advanced on behalf of $ethi Brothers. We make it clear that by this Order the ban will not be confined only to 5 km. but it would cover the entire Aravalli Hill range within the State of c Haryana in which mining operations are being carried out. (i.e. area admeasuring approximately 448 sq. kms. falling in the Districts of Faridabad and Gurgaon including Mewat.)

18. On the legal parameters, Shri Diwan and Shri

D Venugopal, learned senior counsel and Shri S.K. Dubey, 1 learned counsel, submitted that where law requires a particular ,.

thing to be done in a particular manner, it must be done in that - ' manner and other methods are strictly forbidden. In this connection, it was urged that when Section 4A postulates formation of an opinion by the Central Government, after E consultation of the State Gvernment, in the matter of cancellation of mining leases 'in cases of environmental J degradation, the power needs to be exercised by the State Government upon receipt of request from the Central Government. According to the learned counsel, therefore, this F Court cannot cancel the mining leases if there is alleged 1 environmental degradation as submitted by the learned amicus curiae. It was further submitted that measures under Section 3(2)(v) of EP Act, 1986 to restrict areas in which industries shall or shall not be carried out can only be undertaken by the Central G • Government where it deems expedient to protect and improve --- the quality of environment. In fact, according to the learned counsel, when Aravalli's Notification was issued on 7 .5.1992 it was issued under Section 3(2)(v) by the Central Government.

At that time, the Central Government thougt it fit not to place H

A a complete ban but to permit the industries in the mining sector t~ to carry on its business/operations subject to restrictions enumerated in the.said Notification. It was lastly submitted that .... the recommendations of CEC to impose complete ban on mining, particularly in cases where environmental clearances I B are obtained would amount to an exercise of power outside the 1957 Act anq the Rules framed thereunder. That, this Court cannot exercise powers under Article 142 of the Constitution when specific provisions are made under various Forest and Environmental laws dealing with the manner and procedure for

J,..-

c cancellation/termination of mining leases.

19. We find no merit in the above arguments. As stated ~- above, in the past when mining leases were granted, requisite clearances for carrying out mining operations were not obtained

D which have resulted in land and environmental degradation.

Despite such breaches, approvals had been granted for subsequent slots because in the past the Authorities have not f taken into account the macro effect of such wide scale land and ..

\.-

environmental degradation caused by absence of remedial measures (including rehabilitation plan). Time has now come, E therefore, to suspend mining in the above Area till statutory provisions for restoration and reclamation are duly complied with, particularly in cases where pits/quarries have been left abandoned. Environment and ecology are national assets. They t are subject to inter-generational equity. Time has now come.to F suspend all mining in the above Area on Sustainable

Development Principle which is part of Articles 21, 48A and 51A(g) of the Constitution of India. In fact, these Articles have been extensively discussed in the judgment in M.C. Mehta's case (supra) which keeps the option of imposing a ban in future

G open. Mining within the Principle of Sustainable Development

comes within the concept of "balancing" whereas mining • beyond the Principle of Sustainable Development comes within the concept of "banning". It is a matter of degree. Balancing of the mining activity with environment protection and banning such

H activity are two sides of the same principle of sustainable ·

M.C. MEHTA v. UNION OF INDIA AND ORS. 1023

[S.H. KAPADIA, J.]

' development. They are parts of Precautionary Principle.

A { --

20. At this stage, we may also note that Jnder Section 13(2)(qq) of 1957 Act, Rules have been framed for rehabilitation of flora and other vegetation destroyed by reason

~. of any prospecting or mining operations. Under Section 18 of B ' the 1957 Act, Rules have been framed for conservation and

~ systematic development of minerals in India and for the

..,-{ protection of environment by preventing or controlling pollution caused by prospecting or mining operations which also form part of Mineral Concession Rules, 1960 and Mineral c Conservation and Development Rules, 1988. Under Rule 27(1)(s)(i) of Mineral Concession Rules, 1960 every lessee is required to take measures for planting of trees not less than twice the number destroyed by mining operations. Under

~ Mineral Conservation and Development Rules, 1988, vide Rule 34, mandatory provisions for reclamation and D

~ 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 Rule 37 of Mineral Conservation and Development Rules, 1988 the E lessee/licensee has to calibrate the air pollution within permissible limits specified under EP Act, 1986 as well as Air

¥ (Prevention and Control of Pollution) Act, 1981. Under the said ..... ; . Rules 1988, the most important Guideline is Guideline No. 25.26.3, 25.26.4, 25.26.5 and 25.26.6. This Guideline deals with F reclamation, planning and implementation, restoration strategy, principles of rehabilitation, rehabilitation of mined out sites and methods of reclamations. (see Handbook of Environment & Forest Legislations, Guidelines and Procedures in India by Ravindra N. Saxena and Sangita Saxena at pp. 1555-1562).

G • It may be noted that there are two steps to be taken in the method of reclamation, namely, technical reclamation and biological reclamation. The most important aspect of the above guideline is making of a Rhabilitation Plan . .

H >--

"-· Conclusion: l ' A '

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

B 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 enumerated above as .well as in terms of the Rules framed

. 4 c 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 "' minerals from a localized area of 600 hectare~ out of 448 sq.

..i

kms. (approx.) for purposes of excavating construction material

I-- I which is needed for construction of houses, sports complexes

E 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 r..

I Writ Petition (C) No. 202/95 and other I.As., which have opposed imposition of ban on mining of major minerals stand . -1 F disposed of. The I.As. which deal with mining of minor minerals are adjourned beyond summer vacation. ·,.

RP; I.A's disposed of.

't- •·