HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No.1574/2008
Ajay Dubey. Petitioner
Vs
State of M.P. and others. Respondents
For the petitioner : Shri Siddharth Gupta, Advocate
For the respondents: Shri Naman Nagrath, Additional
No.1, 2, 3, 6, 8 & 9 Advocate General
For the respondent : Shri Ashish Shroti, Advocate
No.4
For the respondents : Shri Sushrut Dharmadhikari,
No.5 & 10
Writ Petition No.13118/2009
Madhya Pradesh State Mining
Corporation Ltd. Petitioner
Vs
Union of India and others. Respondents
For the petitioner : Shri Viplav Sharma, Advocate
with Shri J.P.Shah and
Shri Aditya Sharma, Advocate
For the respondent : Shri Siddharth Gupta, Advocate
No.1
For the respondent : Shri Ashish Shroti, Advocate
No.4
For the respondent : Shri Naman Nagrath, Additional
Nos.5, 6 & 7 Advocate General
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Writ Petition No.13329/2009
Ajay Dubey. Petitioner
Vs
State of M.P. and others. Respondents
For the petitioner : Shri Siddharth Gupta, Advocate
For the respondents : Shri Naman Nagrath, Additional
No.1, 2 & 4 Advocate General
For the respondent : Shri Ashish Shroti, Advocate
No.3
For the respondents: Shri Sushrut Dharmadhikari,
No.5 and 6 Advocate
Present : Hon'ble The Chief Justice Shri S.R.Alam
Hon'ble Shri Justice Alok Aradhe
ORDER
(29/09/2010)
PER : S. R. ALAM, CHIEF JUSTICE :
In these three writ petitions since common question of
law and facts are involved and also as agreed to by the
learned counsel for the parties, they were heard together and
are being decided by this common order.
2. Writ Petition No.1574/2008 and Writ Petition
No.13329/2009 have been preferred as public interest
litigations by one Ajay Dubey describing himself to be
Secretary of Environment Friendly Organization- ‘Prayatna’,
mainly with the grievance that number of mines/quarries are
being operated illegally across the State of Madhya Pradesh
without obtaining the statutory clearances which are
mandatory in nature and, therefore, a direction has been
sought to stop operation of all such mines which are being
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run notwithstanding the fact that closure orders have already
been issued by the concerned authorities. It has also been
inter alia prayed that a High Level Committee be constituted
to enquire the matter pertaining to grant of permission for
such mining operations.
3. In the other petition i.e. W.P. No.13329/2009, the
validity of Sub-rule (1) and (2) of Rule 49 of M.P. Minor
Mineral Rules, 1996 (hereinafter referred to as ‘1996
Rules’ ) which gives exemption from taking environmental
clearance under Environment (Protection) Act, 1986, Air
(Prevention and Control of Pollution) Act, 1981 and Water
(Prevention and Control of Pollution) Act, 1974 for
excavation of sand and ‘bajri’ is challenged on the ground
inter alia that it confers unfettered, unguided and
uncanalised powers on the Director to grant exemption from
obtaining environmental clearances to any particular mine
for special consideration and, thus, the same being in
violation of Sections 13, 15(1A) and 18 of the Mines and
Minerals (Development and Regulation) Act, 1957
(hereinafter referred to as ‘MMDR Act‘ ) and Mineral
Conservation and Development Rules, 1988 (hereinafter
referred to as ‘1988 Rules’ ) is ultra vires besides being
discriminatory as it is violative of Article 14 of the
Constitution of India. It is therefore inter alia prayed that
the State respondents be directed to ensure that no mining
activity in respect of excavation of sand and ‘bajri’ should
be allowed to be undertaken without seeking prior clearance
under the provisions of Environment (Protection) Act, 1986,
Air (Prevention and Control of Pollution) Act, 1981, Water
(Prevention and Control of Pollution) Act, 1974 and
Environmental Impact Assessment (in short ‘EIA’ )
Notification dated 14.9.2006 and other allied statutory
provisions relating to environment.
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4. W.P. No.13118/2009 has been preferred by the M.P.
State Mining Corporation Ltd. against the letters/orders of
the State Level Expert Appraisal Committee (Respondent
No.2) dated 12.6.2009, State Level Environment Impact
Assessment Authority (Respondent No.3) dated 6.7.2009 and
of M.P. State Pollution Control Board (Respondent No.4)
dated 13.7.2009 whereunder the petitioner is asked to obtain
environmental clearances and to obtain NOC under EIA
notification dated 14.9.2006 issued by the Central
Government under Rule 5(3) of Environment (Protection)
Rules, 1986. It has further been asserted that in view of the
exemption granted under Rule 49 of the 1996 Rules, the
respondents cannot insist the Corporation to obtain statutory
clearances and the NOC under the aforesaid enactments and
EIA Notification dated 14.9.2006.
5. Therefore, the core issue involved in all the three writ
petitions is as to whether for carrying out quarry operation
of sand and ‘bajri’ environmental clearances and NOC as
aforesaid are required to be obtained notwithstanding
exemption granted in respect of same under Rule 49 of the
1996 Rules.
6. The case of the petitioner of W.P. No.1574/2008 is that
there is gross dereliction in the matter of enforcement or
implementation of environmental provisions on the part of
the respondents inasmuch as mass scale illegal mining
activities of unprecedented nature are being carried out in
the State of Madhya Pradesh since more than a decade. It
has been further alleged that in reference to query made
under Right to Information Act, 2005, the respondent No.4
namely M.P. State Pollution Control Board (in short
‘Board’) vide letter dated 11.4.2007 informed the petitioner
that 526 mines which have an area of more than 5 hectares
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are being operated in the State of Madhya Pradesh and out of
aforesaid 526, no application has been received by the Board
in respect of 296 mines. It has further been informed that the
closure orders have been issued in respect of 15 mines which
have an area of less than 5 hectares situated in the districts
of Gwalior, Bhind, Morena, Datia and Sheopur. The
petitioner was further informed that out of 315 mines, 108
mines are being run without obtaining any permission under
the Air (Prevention and Control of Pollution) Act, 1981,
Water (Prevention and Control of Pollution) Act, 1974. The
petitioner further claimed that he has submitted a
representation to Chief Minister of State of Madhya Pradesh
with the prayer for instituting a high level independent
enquiry. It is further stated in the writ petition that in
exercise of powers under Section 3(2) of the Environment
(Protection) Act, 1986 read with Rule 5(3) of Environment
(Protection) Rules, 1986, the Central Government has issued
a notification dated 14.9.2006 which requires that no new
project of the nature listed in Schedule-I to the above
notification shall be undertaken in any part of India unless it
is given environmental clearance by the Central
Government. It is pleaded in the writ petition that the
aforesaid notification provides full-fledged comprehensive
procedure. Clause III-A, Clause IV and Entry 20 of
Schedule-I refers to mining projects. It has further been
stated that by order dated 25.8.2003 the respondent No.4 has
directed that grant/ renewal of environmental permits for
mining operations in respect of mining leases over an area of
more than 5 hectares would be the responsibility of the
Board, while in respect of areas having less than 5 hectares
the responsibility of renewal of environmental permits
would be shouldered by the Regional Officers. It has further
been alleged that around 1300 mines are being illegally
operated in State of Madhya Pradesh.
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7. Respondents No.1 to 3, 6, 8 & 9 (State Authorities)
have filed the return, inter alia, in which, it is pleaded that
the writ petition suffer from the vice of non-joinder of
necessary parties inasmuch as the lessees of the mining
leases have not been arrayed as respondents. It has further
been averred that no material has been brought on record to
show that on account of quarrying operation of sand and
‘bajri’, the same is causing environmental pollution and,
therefore, requires clearance under various statutory
provisions.
8. In W.P. No.13329/2009, besides questioning the
validity of the provisions contained Rule 49 of the Rules of
1996, it has been alleged that EIA notification which has
been issued in exercise of powers delegated by Parliament
does not exempt sand and ”bajri” mines from environmental
clearance, whereas the respondents No.1 and 2 in the return
have stated that challenge to the validity of Rule 49 of the
1996 Rules is misconceived. It has been stated that
exemption to sand/’bajri’ mines under Rule 49 of 1996 Rules
has been granted as sand/’bajri’ constitute altogether a
different class, for which neither any mining nor any
quarrying is required. Sand and ‘bajri’ are merely surface
deposits and they are accumulated on account of natural
flow of river water and for this reason under Rule 49 of
1996 Rules sand and ‘bajri’ mines have been exempted from
requirement of obtaining environmental clearance. It has
been submitted that for carrying out the process of collection
of sand/’bajri’, no consent or permission from the State
Pollution Control Board is required because no minimum or
maximum standards or permissible limits are fixed in respect
of pollution with regard to sand and ‘bajri’ mines and,
further it does not involve any mining activity such as
excavation etc. as they are lying on the surface and are lifted
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from the surface. It has further been submitted that in
exercise of powers under Section 15(1-A) of MMDR Act, the
State Government has framed 1996 Rules and same are
within the legislative competence of the State Government.
9. In W.P. No.13118/2009, the M.P. State Mining
Corporation Ltd. is the petitioner which is a Corporation
fully owned and controlled by Government of Madhya
Pradesh and is a government company within the meaning of
Section 617 of the Companies Act, 1956. It is the case of the
petitioner in the aforesaid writ petition that for carrying out
quarrying operations in respect of sand/’bajri’, no consent,
permission or No Objection Certificate from the State
Pollution Control Board or from any authority under EIA
notification dated 14.9.2006 is required. Rule 49 of the 1996
Rules framed under Section 15(1A) of the MMDR Act by the
State Government completely exempts quarrying operations
of sand and ‘bajri’ from the requirement of obtaining
environmental clearance.
10. Respondents No.1 and 6 in W.P. No.13118/2009 have
filed counter reply in which, inter alia, it has been stated
under EIA notification dated 14.9.2006, in respect of new
mining projects, the expansion or modernization of existing
projects, irrespective of the fact that whether mineral is
major or minor, prior environmental clearance has to be
obtained under the provisions mentioned in the notification
as per procedure prescribed therein.
11. Respondents No.2 and 3 in Writ Petition
No.13118/2009 have controverted the stand taken by the
petitioner and have stated that contention of the petitioner
that no environmental clearance is required to be obtained in
respect of quarrying operations of sand/’bajri’ is incorrect as
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the said notification dated 14.9.2006 does not provide for
any exemption in respect of quarrying of sand and ‘bajri’.
12. Respondent No.4, M.P. State Pollution Control Board,
has filed the return in which objection has been taken with
regard to maintainability of the writ petition in so far as it
pertains to challenge with regard to the orders by which the
applications filed by the Corporation seeking environmental
clearances have been rejected. It has been averred that
statutory remedy of an appeal is provided under Section 28
of the Water (Prevention and Control of Pollution) Act, 1974
and under Section 31 of the Air (Prevention and Control of
Pollution) Act, 1981 against the order rejecting an
application for grant of consent. It has further been averred
that scope of operation of MMDR Act and 1996 Rules as
well as Air (Prevention and Control of Pollution) Act, 1981
and Water (Prevention and Control of Pollution) Act, 1974
is totally different.
13. We have heard Shri Siddharth Gupta, learned counsel
appearing for the petitioners in W.P. No.1574/2008 and W.P.
No.13329/2009. He argued that Section 6 of the
Environment (Protection) Act, 1986 empowers the Central
Government to make rules in respect of the matters which
are specified in sub-section (2) of Section 6. Sub-section
(1) of Section 24 of the Environment Protection Act, 1986
provides that 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. It
is submitted that in exercise of powers conferred by Sections
6 and 25 of the Environment (Protection) Act, 1986 the
Central Government has framed rules which are known as
Environment (Protection) Rules, 1986 (hereinafter referred
99
to as ‘1986 Rules’). Rule 5 of the 1986 Rules deals with
prohibition and restriction on the location of industries and
carrying on processes and operations in different areas. Rule
5(3)(a) of the 1986 Rules, inter alia, provides that whenever
it appears to the Central Government that it is expedient to
impose prohibition or restrictions on the location of an
industry or the carrying on of processes and operations in an
area, it may by notification in the Official Gazette and in
such other manner as the Central Government may deem
necessary from time to time, give notice of its intention to
do so. Rule (3)(b) of the 1986 Rules provides that every
notification issued under clause (a) shall give a brief
description of the area, the industries, processes in the area
about which such notification pertains and also specify that
reasons for the imposition of prohibition or restrictions on
the location of the industries and carrying on of processes or
operations in that area. It is further submitted that in
exercise of powers under Rule 5(3)(a) of the 1986 Rules
initially notification dated 27.1.1994 was issued by the
Central Government wherein it was provided in respect of
mining projects (major minerals with less than 5 hectares), it
was necessary to obtain environmental clearance from the
Central Government. The aforesaid notification was
superseded by notification dated 14.9.2006 by which in
respect of mining operations extraction of natural resources
and power generation having an area of more than 5
hectares, requirement of obtaining prior environment
clearance has been prescribed. It has further been submitted
that the aforesaid notification shall have the over-riding
effect and shall prevail over the laws made by the
Legislature of the State. In support of the aforesaid
submissions learned counsel has placed reliance on the
decisions of the Supreme Court in S. Jagannath vs. Union
of India and others, AIR 1997 SC 811. It has further been
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contended that mining operations are hazardous in nature as
it impairs ecology and natural resources and, therefore, it
needs to be regulated. Learned counsel in this connection
has made reference to the decision of Supreme Court in
M.C.Mehta vs. Union of India, (2004) 12 SCC 118. It has
further been submitted that Section 24 of the Environment
(Protection) Act, 1986 has to be read in such a manner so as
to secure the object of the Act for which it is enacted.
During the course of submissions learned counsel for the
petitioner gave up the challenge to the validity of Rule 49 of
the 1996 Rules. It was submitted that in view of notification
dated 14.9.2006 it is obligatory to obtain prior
environmental clearance for mining operations in respect of
sand and ‘bajri’.
14. On the other hand, Shri Naman Nagrath, learned
Additional Advocate General appearing for the State
respondents in W.P. No.13329/2009 while refuting the
contentions advanced on behalf of the petitioner submitted
that in Schedules I & II appended to the 1996 Rules several
minor minerals have been mentioned. However, only sand
and ‘bajri’ have been exempted from the requirement of
obtaining environmental clearance. It has been submitted
that sand and ‘bajri’ constitute altogether different class of
minor minerals for which neither any mining nor any
quarrying is required. Sand and ‘bajri’ are mere surface
deposits and thus are accumulated on account of natural flow
of river water. Though sand and ‘bajri’ are minor minerals
but no mining whatsoever or even quarrying operations are
required to be carried out and therefore Rule 49 of the 1996
Rules exempts sand and ‘bajri’ from environment clearance
because quarrying of sand and ”bajri” does not cause any
environmental pollution. While referring to Rule 2(xxix) it
has been submitted that expressions “Mines” and “Owner”
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for the purpose of M.P. Minor Rules, have the same
meanings respectively assigned to them in the Mines Act,
1952. Section 3(b) provides that Mines Act shall not apply
to any mines engaged in the extraction of kankar, murram,
laterite, boulder, gravel, minor sand, etc. Rule 5 of the 1996
Rules deals with restrictions on the grant of trade quarry or
quarry lease. Rule 5(2)(d) of the 1996 Rules provides that no
quarry lease or trade quarry shall be granted in respect of an
area except for the mineral sand or ‘bajri’, within the
distance of 100 meters from river banks, nalas, canal,
reservoir, dam, any natural water course or any water
impounding structure. Thus, for extraction of sand and
‘bajri’ no mining activity is involved. It has further been
contended that in exercise of powers under Section 18 of
Mines and Minerals (Development and Regulation) Act,
1957 the Central Government has framed Mineral
Conservation and Development Rules, 1988. Chapter V of
the said Rules deals with environment clearance which
contains Rules 31 to 41. However, Rule 2(iv) of the 1988
Rules provides that rules shall not apply to minor minerals.
It has further been contended that MMDR Act as well as
Mines Act and the 1988 Rules exempt all the minor minerals
from the requirement of obtaining environmental clearance.
The State Government has only exempted sand and ‘bajri’
quarry from the requirement of obtaining environmental
clearance. It has further been contended that no limits or
standards of emission or discharge of environmental
pollutants have been prescribed either by the Act or the
Rules in respect of quarrying of sand and ‘bajri’, therefore,
the provisions of the Act and the Rules as well as the
notification do not apply to the quarrying operations of sand
and ‘bajri’. In support of the aforesaid propositions learned
counsel has placed reliance on the decisions of the Supreme
Court in M.V.Krishnan Nambissan v. State of Kerala, AIR
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1966 SC 1676 and Hindustan Lever Ltd. vs. Food Inspector
and another, (2004) 13 SCC 83. It has further been
contended that notification dated 14.9.2006 does not apply
to quarrying of sand and ‘bajri’ as the notification only
applies to activity of mining. While referring to definition of
“mining operation” and “quarrying operation” in Rule
2(xxii) of the 1996 Rules, it has been contended that
“mining operations” and “quarrying operations” mean any
operation undertaken for the purpose of mining any minor
mineral and shall include erection of Machinery,
construction of roads and other preliminary operations for
the purpose of quarrying and concomitant of handling and
transport of minerals up to the point of dispatch. Since no
machinery is required to be erected for quarrying sand and
‘bajri’, therefore, quarrying of sand and ‘bajri’ does not
amount to mining operations and consequently the
notification dated 14.9.2006 does not apply to the activity of
quarrying of sand and ‘bajri’.
15. On the other hand, Shri Ashish Shroti, learned counsel
for respondent No.3 in W.P.No.13329/2007 submitted that
Rule 3(1) of the 1986 Rules deals with standards for
emission or discharge of environmental pollutants. Sub-rule
(1) of Rule 3 of the 1986 Rules provides that standards of
emission or discharge of environmental pollutants from the
industries, operations or processes shall be as specified in
Schedules I to IV. Similarly, sub-rule (3-A) of Rule 3 of the
1986 Rules provides that emission or discharge of
environmental pollutants from the industries, operations or
processes other than those industries, operations or process
for which standards have been specified in Schedule I shall
not exceed the relevant parameters and standards specified
in Schedule VI. Similarly, sub-rule (3B) of Rule 3 of the
1986 Rules provides that combined effect of emission or
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discharge of environmental pollutants in an area, from
industries, operations, processes, automobiles and domestic
sources, shall not be permitted to exceed the relevant
concentration in ambient air as specified against each
pollutant to columns (3) to (5) of Schedule VII. Relying on
the aforesaid provision, it has been contended that in respect
of quarrying of sand and ‘bajri’, standards of emission or
discharge of environmental pollutants prescribed under
Rules 6 & 7 in schedule appended to the Rules are required
to be obtained. It has further been contended that
transportation of sand results in air pollution and, therefore,
environmental clearance is required to be obtained. While
referring to Section 25 of the Water (Prevention and Control
of Pollution) Act, 1974, it has been contended that consent
is mandatory before undertaking mining operations in
respect of sand and ‘bajri’.
16. Shri Sushrut. Dharmadhikari, learned counsel
appearing for respondent No.5 in W.P.No.13329, relying on
paragraphs 45 and 46 of the judgment of Supreme Court in
M.C.Mehta (supra) has submitted that natural resources of
air, water and soil cannot be utilized, if the utilization
results in irreversible damage to environment. It is argued
that in recent past it has been noticed that there is growing
tendency of non-compliance of the statutory norms
prescribed for protection of environment. The activity of
mining sand and ‘bajri’ is hazardous in nature and results in
environmental pollution, hence prior environmental
clearance is required under EIA notification dated
14.9.2006. It has further been argued that purposive
construction has to be given while implementing the
notification dated 14.9.2006.
17. Shri V. Bhide, learned counsel for respondent No.6
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while adopting the submissions made by the learned counsel
for respondent No.5 has submitted that for quarrying of sand
and ‘bajri’, the requirement of prior environmental clearance
is necessary. Learned counsel has placed reliance on the
decisions of Supreme Court in M.C. Mehta vs. Union of
India, (2009) 6 SCC 142 in support of his submissions.
18. Shri Viplav Sharma, learned counsel for the petitioner
in W.P.No.13118/2009, has submitted that MMDR Act was
enacted by the Parliament in 1957 whereas Water Act, Air
Act and Environment (Protection) Act were respectively
enacted in the years 1974, 1981 and 1986. After the
enactment of environment laws, Section 15(1A) was
incorporated in the MMDR Act with effect from 10.2.1987
which empowers the State Government to frame rules in
respect of minor minerals in respect of the matter specified
in sub-section (1A) of Section 15. In exercise of powers
conferred under sub-section (1-A) of Section 15 of the
MMDR Act, the State Government has framed Madhya
Pradesh Minor Mineral Rules, 1996. Rule 49(1) of the 1996
Rules contains a non-obstante clause and provides that
provisions of Rules 44 to 48 shall not apply to sand and
‘bajri’ quarrying. Though the notification dated 14.9.2006
does not apply to sand and ‘bajri’ quarrying yet even if it
assumed that it applies to sand and ‘bajri’ quarrying then it
runs foul to Rule 49(1) of the 1996 Rules. It is submitted
that it is trite law that provisions of Rules have to prevail
over the notification.
19. It has further been submitted that neither the
Environmental (Protection) Act, 1986 nor the Environmental
Protection Laws provide for standards of emission of
discharge of environmental pollutants. While referring to
various provisions of Air Act and Water Act, it has been
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contended that no standards of emission or discharge of
pollutants have been described in respect of quarrying of
sand and ‘bajri’. On the aforesaid premise, it is submitted
that for carrying out quarrying operations of sand and
‘bajri’, no environmental clearance is required to be
obtained.
20. Shri Mohd. Ali, learned counsel for the intervener,
while supporting the submissions made on behalf of the
petitioners in W.P.No.1574/2008 and W.P.No.13329/2009,
has contended that it is necessary to obtain environmental
clearance for carrying on quarrying operations of sand and
‘bajri’ as the same results in environmental pollution. It has
further been contended that Rule 49 in so far it exempts
quarrying of sand and ‘bajri’ from the requirement of
obtaining environmental clearance runs counter to the
provisions of central enactment, rules and notifications
issued thereunder and therefore in view of Article 254 of the
Constitution of India, the provisions of Central enactment
will prevail over the provisions of law enacted by State
Legislature.
21. We have considered the arguments made on both sides.
Since learned counsel for the petitioner in W.P.
No.13329/2009 during the course of arguments has given up
the challenge to the validity of Rule 49 of the 1996 Rules,
therefore, we need not dwell on the issue pertaining to
validity of Rule 49 of the 1996 Rules and now the only issue
which survives for consideration in the instant writ petitions
is as to whether the Notification dated 14.9.2006 issued by
the Central Government under Rule 5(3) of Environmental
Protection Rules and the impugned orders/letters dated
12.6.2009, 6.7.2009 and 13.7.2009 which form the subject
matter of challenge in Writ Petition No.13118/09 are
applicable in respect of quarrying operation of sand and
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‘bajri’ notwithstanding the fact that Rule 49 of the 1996
Rules exempts the same from the provisions of Environment
(Protection) Act, 1986, Air (Prevention and Control of
Pollution) Act, 1981, Water (Prevention and Control of
Pollution) Act, 1974 and the Rules made thereunder.
22. In order to appreciate and adjudicate the issue involved
in these petitions, it is necessary to first examine relevant
provisions of law.
23. It would be necessary to take notice of different
enactments made by Parliament namely MMDR Act as well
as other laws enacted from time to time pertaining to
protection of environment and natural resources. The
MMDR Act is an Act to provide for the development and
regulation of mines and minerals under the control of the
Union. Section 15 of the MMDR Act confers power on State
Governments to make rules in respect of minor minerals.
Sub-section (1) of Section 15 of the MMDR Act provides
that the State Government may by notification in the Official
Gazette, make rules for regulating the grant of quarry leases,
mining leases or other mineral concessions in respect of
minor minerals and for purposes connected therewith.
Environment (Protection) Act, 1986 came into force on
12.11.1986, whereas Air (Prevention and Control of
Pollution) Act, 1981 came into force in the year 1981 and
Water (Prevention and Control of Pollution) Act, 1971 had
come into force in the year 1971. Thereafter, the Parliament
incorporated sub-section (1A) in Section 15 of the MMDR
Act by Act No.37 of 1986 and it came into force with effect
from 10.2.1987. It is to be noted that sub-section (1A) in
Section 15 of MMDR Act was inserted by the Parliament in
the year 1987 i.e. subsequent to enactment of Air
(Prevention and Control of Pollution) Act, 1981, Water
(Prevention and Control of Pollution) Act, 1971 and
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Environment (Protection) Act, 1986. Clause (i) of sub-
section (1A) of Section 15 of the MMDR Act, inter alia,
empowers the State Government to frame Rules in the
manner in which rehabilitation of flora and other vegetation,
such as trees, shrubs and the like destroyed by reason of any
quarrying or mining operations shall be made in the same
area or in any other area selected by the State Government
by the person holding the quarrying or mining lease. The
1996 Rules are enacted by the State Legislature in exercise
of powers under Section 15 of MMDR Act and therefore
Rule 49 of the 1996 Rules is a validly enacted provision of
law. Chapter VIII of the 1996 Rules deals with protection of
environment. Rule 44 of the 1996 Rules enjoins a duty on
every holder of quarry lease to take all possible precautions
for the protection of environment and control of pollution
while conducting quarrying operations in the manner
prescribed therein. It reads as under:
“44. Protection of Environment.- (1)
Every holder of quarry lease shall take all
possible precautions for the protection of
environment and control of pollution while
conducting quarrying operation in the
following manner:-
(a) Wherever top soil exists and is to be
excavated for quarrying operation, it
shall be removed separately;
(b) The top soil so removed shall be
stored for future use;
(c) The dumps shall be properly secured
to prevent escape of material
therefrom and cause land degradation
or damage to agricultural fields,
pollution of surface water bodies or
cause floods;
(d) The site of dumps shall be selected as
far as possible on impervious and
barren ground within the leased area;
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(e) The top soil dumps shall be suitably
terraced and stabilised through
vegetation or otherwise.
(2) The top soil so removed shall be
utilized for restoration or rehabilitation of
the land which is no longer required for
quarrying operations.
(3) Removal, Storage and utilization of
overburden, etc.
(a) Every holder of a quarry lease shall
take steps so that the overburden,
waste rock, rejects and fines
generated during quarrying or during
sizing shall be stored in separate
dumps;
(b) The dumps shall be properly secured
and shall be suitably terraced and
stabilised through vegetation or
otherwise;
(c) Wherever possible, the waste rock,
over burden etc. shall be backfilled
into the quarry excavations with a
view to restoring the land to its
original use as far as possible;
(d) The fines shall be so deposited and
disposed that they are not allowed to
flow away and cause land degradation
or damage to agricultural fields,
pollution of surface water bodies or
cause floods.”
Rule 45 of the 1996 Rules deals with reclamation and
rehabilitation of lands whereas Rule 46 of the 1996 Rules
deals with precautions against damage to public places, air
pollution and noise pollution. Rule 46 of the 1996 Rules
being relevant for the purpose is reproduced herein for the
facility of reference:-
“46. Precautions against damage to public
places, air pollution and noise pollution,
etc.- Every holder of a quarry lease shall,-
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(i) take adequate precautions against
damage to public buildings or monuments,
roads, religious places either within the
lease area or in proximity to the lease area;
(ii) air pollution due to fines, dust, etc.;
shall be controlled, and kept within
permissible limits specified in the Air
(Prevention and Control of Pollution) Act,
1981 (No.14 of 1981) and the Environment
(Protection) Act, 1986 (No.29 of 1986) and
rules made thereunder;
(iii) noise arising out of quarrying
operations shall be abated or controlled at
the sources so as to keep it within
permissible limits”.
24. Rule 47 of the 1996 Rules deals with penalty whereas
Rule 48 of the 1996 Rules prescribes for filing of returns.
Rule 49 of the 1996 Rules deals with relaxation from
protection of environment. Rule 49 of the 1996 Rules which
is relevant for the purpose of adjudication of the controversy
involved in the instant writ petitions is reproduced below:-
“49. Relaxation from protection of
Environment. – (1) Notwithstanding
anything contained in these rules the
provisions of Rules 44, 45, 46, 47 and 48
shall not apply to sand and ‘bajri’
quarrying.
(2) Relaxations may be granted by the
Director, to a quarry lease holder from all
or some of the provisions of environmental
protection on special considerations.”
25. Thus, sub-rule (1) of Rule 49 of the 1996 Rules
provides that provisions of Rules 44 to 48 of the 1996 Rules
shall not apply to sand and ‘bajri’ quarry. Thus, by sub-rule
(1) of Rule 49 of the 1996 Rules, the provisions of Air
(Prevention and Control of Pollution) Act, 1981 and
Environment (Protection) Act, 1986 and the Rules made
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thereunder have been made inapplicable in respect of sand
and ‘bajri’ quarry.
26. Now we may advert to the provisions of Environment
(Protection) Act, 1986. The Environment (Protection) Act,
1986 is an Act to provide for the protection and
improvement of environment and for matters connected
therewith. Section 7 of the Environment (Protection) Act,
1986 provides that no person carrying on any industry,
operation and process shall discharge or emit or permit to be
discharged or emitted any environmental pollutants in excess
of such standards as may be prescribed. Section 25
empowers the State Government to make rules with regard to
the matters which have been enumerated in sub-section (2)
of Section 25 of the Act. Section 24 of the Act which is
relevant for the purpose of controversy involved in the
instant writ petitions is extracted below:-
“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.”
27. Thus, from perusal of Section 24 of the Environment
(Protection) Act it is clear that subject to provisions of sub-
section (2) the provisions of the Act and the rules or orders
made therein shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than
this Act. The expression “enactment” has not been defined
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under the Environment (Protection) Act, 1986. Therefore,
we may refer to the provisions of the General Clauses Act,
1897. Section 3(19) defines the expression “enactment” as
under:-
“(19) “enactment” shall include a
Regulation (as hereinafter defined) and
any Regulation of the Bengal, Madras or
Bombay Code, and shall also include
any provision contained in any Act or in
any such Regulation as aforesaid.”
Section 3(50) defines the expression “Regulation” as
under:-
(50) “Regulation” shall mean a
Regulation made by the President under
Article 240 of the Constitution, and shall
include a Regulation made by the
President under Article 243 thereof and; a
Regulation made by the Central
Government under the Government of
India Act, 1870, or the Government of
India Act, 1915, or the Government of
India Act, 1935.”
Thus, if Rule 49 of the 1996 Rules which has been
framed by the State Legislature under Section 15 of the
MMDR Act is viewed in context to the definition of
“enactment” as provided in Section 3(19) of the General
Clauses Act and the definition of “Regulation” as defined in
Section 3(50) of the General Clauses Act, it is apparent that
it does not fall within the meaning of the expression
“enactment”. For the aforementioned reasons non-obstante
clause contained in Section 24(1) of the Environment
(Protection) Act, 1986 does not apply to Rule 49 of the 1996
Rules and, therefore, contention raised on behalf of the
counsel for the petitioners that notification dated 14.9.2006
issued under Rule 5(3) of Environment (Protection) Rules,
1986 will prevail over Rule 49(1) of the 1996 Rules in view
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of Section 24 of the Environment (Protection) Act, cannot be
accepted.
28 That apart, the Environment (Protection) Act, 1986
namely Act No.29 of 1986 was enacted on 23 rd of May, 1986
after receiving the assent of the President of India which
came into force with effect from 19.11.1986 whereas Section
15(1A) of the MMDR Act was enacted vide Act No.37 of
1986 subsequent to the Act No.29 of 1986 and came into
force on 10.2.1987. Thus, the Parliament was aware of the
earlier legislation and its non-obstante clause yet power was
conferred by the later enactment authorizing the State
Legislature to make rules in respect of minor minerals.
Therefore, it would be assumed that the legislative intent or
mandate is that the rule framed by the State under Section
15(1A) of MMDR Act should prevail over all previous
enactments on the subject. It is well settled preposition of
law that if the legislature does not want the later enactment
to prevail then it could and would provide in the later
enactment that provisions of the earlier enactment continue
to apply. It is also cardinal principle of interpretation of
statute that later enactment must prevail over the earlier one
even if the non-obstante clause is provided in the earlier
enactment. Therefore, Section 15(1A) of the MMDR Act
since was brought in the statute book at later point of time
cannot be made inoperative because of non-obstante clause
of the Act which was enacted earlier in point of time namely
Environment (Protection) Act, 1986. We are fortified in our
view by the decision of the Supreme Court in KSL and
Industries Ltd. v. Arihant Threads Ltd., (2008) 9 SCC 763
wherein the Supreme Court has held that where there are two
special statutes which contain non-obstante clauses, later
statute mus prevail. Besides that, if the petitioner’s aforesaid
contention is accepted then it would amount to giving higher
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status or putting the Notification on higher pedestal than the
statutory Rules. However, we need not to further deliberate
on this issue and suffice it to say on this since the
Notification under Rule 5(3) of Environment (Protection)
Rules, 1986 is not an enactment within the meaning of
Section 24(1) of the Environment Protection Act and,
therefore, it cannot have overriding effect on Rule 49 of the
1996 Rules.
29. It is also relevant to mention that Rule 49(1) of the
1996 Rules is the special provision relating to sand and
‘bajri’ only. Section 24 of the Environment (Protection) Act,
1986 is a general provision. It is well settled in law that if
the special provision is made on a certain matter, that matter
is excluded from the general provision. In this connection,
we may refer to decisions of the Apex Court reported in
Venkateshwar Rao vs. Govt. of Andhra Pradesh, AIR 1966
SC 828, State of Bihar v. Yogendra Singh, AIR 1982 SC
882, Maharashtra State Board of Secondary and Higher
Secondary Education vs. Paritosh Bhupesh Kumar Sheth,
(1984) 4 SCC 27. For this additional reason also, the
notification dated 14.9.2006 shall not apply in respect of
quarrying operations of sand and ‘bajri’.
30. It is also relevant to mention here that though in
Schedules I & II appended to the 1996 Rules several minor
minerals like granite, marble, limestone, flag stone, etc. are
included yet only sand and ‘bajri’ have been exempted from
environmental clearance. It is also relevant to mention here
that Central Government in exercise of powers under Section
18 of the MMDR Act has framed Rules, namely, Mineral
Conservation and Development Rules, 1988. Chapter V of
the 1988 Rules deals with Environment. Rules 31 to 41 deal
with protection of environment. However, aforesaid Rules
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which have been framed by the Central Government have not
been made applicable to minor minerals as is clear from
Rule 2(iv) of the 1988 Rules. Thus, minor minerals have
been kept outside the purview of even 1988 Rules by the
Central Government. It appears that the State Legislature has
treated the sand and ‘bajri’ to be a different class of minor
mineral. It is a matter of common knowledge that sand and
‘bajri’ are merely surface deposits and are accumulated on
account of natural flow of river water. Though sand and
‘bajri’ are classified as minor minerals, yet no mining or
quarrying operations are required to be carried out. The
process of removal of mineral simply involves collection of
already deposited sand/ ‘bajri’ on the baks of river and,
therefore, it appears that exemption has been granted by the
State Legislature from the requirement of compliance with
provisions of Environment Protection Act and the Rules
framed thereunder.
31. For the aforesaid reasons, we hold that provisions of
notification dated 14.9.2006 issued in exercise of powers
under Rule 5(3)(a) of the Environment (Protection) Rules,
1986 do not apply to quarrying operations of sand and
‘bajri’ in view of Rule 49(1) of M.P. Minor Mineral Rules,
1996. Consequently, no prior environmental clearance is
required to be obtained in respect of quarrying of sand and
‘bajri’. Needless to state that if any mining or quarrying
activity which is covered under notification dated 14.9.2006
is being carried on in contravention of provisions of
notification dated 14.9.2006, the State Government shall
take effective steps immediately to stop such an activity in
accordance with law.
32. Resultantly, Writ Petition No.1574/2008 and
W.P.No.13329/2009 are dismissed whereas Writ Petition
No.13118/2009 is allowed. Consequently, letter/orders
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contained in Annexures-P-1 to P-4 dated 12.6.2009,
06.7.2009, 13.7.2009 and 30.9.2009 respectively are
quashed.
(S.R.Alam) (Alok Aradhe)
Chief Justice Judge
RM/YS