{"id":255052,"date":"2010-09-29T00:00:00","date_gmt":"2010-09-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajay-dubey-vs-the-state-of-madhya-pradesh-on-29-september-2010"},"modified":"2015-05-13T15:12:35","modified_gmt":"2015-05-13T09:42:35","slug":"ajay-dubey-vs-the-state-of-madhya-pradesh-on-29-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajay-dubey-vs-the-state-of-madhya-pradesh-on-29-september-2010","title":{"rendered":"Ajay Dubey vs The State Of Madhya Pradesh on 29 September, 2010"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Ajay Dubey vs The State Of Madhya Pradesh on 29 September, 2010<\/div>\n
          HIGH COURT OF MADHYA PRADESH\n            PRINCIPAL SEAT AT JABALPUR\n\n\n                Writ Petition No.1574\/2008\n\n\nAjay Dubey.                                     Petitioner\n\n     Vs\n\nState of M.P. and others.                      Respondents\n\n\n     For the petitioner :    Shri Siddharth Gupta, Advocate\n\n     For the respondents: Shri Naman Nagrath, Additional\n     No.1, 2, 3, 6, 8 & 9 Advocate General\n\n     For the respondent :    Shri Ashish Shroti, Advocate\n     No.4\n\n     For the respondents : Shri Sushrut Dharmadhikari,\n     No.5 & 10\n\n\n                Writ Petition No.13118\/2009\n\n\nMadhya Pradesh State Mining\nCorporation Ltd.                                 Petitioner\n\n           Vs\n\nUnion of India and others.                     Respondents\n\n\n     For the petitioner :    Shri Viplav Sharma, Advocate\n                             with Shri J.P.Shah and\n                             Shri Aditya Sharma, Advocate\n\n     For the respondent :    Shri Siddharth Gupta, Advocate\n     No.1\n\n     For the respondent :    Shri Ashish Shroti, Advocate\n     No.4\n\n     For the respondent :    Shri Naman Nagrath, Additional\n     Nos.5, 6 & 7            Advocate General\n                                    22\n\n\n\n\n                 Writ Petition No.13329\/2009\n\n\nAjay Dubey.                                              Petitioner\n\n     Vs\n\nState of M.P. and others.                            Respondents\n\n\n     For the petitioner        : Shri Siddharth Gupta, Advocate\n\n     For the respondents : Shri Naman Nagrath, Additional\n     No.1, 2 & 4           Advocate General\n\n     For the respondent :        Shri Ashish Shroti, Advocate\n     No.3\n\n     For the respondents: Shri Sushrut Dharmadhikari,\n     No.5 and 6           Advocate\n\n\nPresent :    Hon'ble The Chief Justice Shri S.R.Alam\n             Hon'ble Shri Justice Alok Aradhe\n\n\n                            ORDER\n<\/pre>\n
                           (29\/09\/2010)<\/p>\n
PER : S. R. ALAM, CHIEF JUSTICE :\n<\/p>\n
     In these three writ petitions since common question of
\nlaw and facts are involved and also as agreed to by the
\nlearned counsel for the parties, they were heard together and
\nare being decided by this common order.\n<\/p>\n
2.   Writ     Petition     No.1574\/2008       and   Writ    Petition
\nNo.13329\/2009 have been preferred as public interest
\nlitigations by one Ajay Dubey describing himself to be
\nSecretary of Environment Friendly Organization- ‘Prayatna’,
\nmainly with the grievance that number of mines\/quarries are
\nbeing operated illegally across the State of Madhya Pradesh
\nwithout     obtaining    the    statutory   clearances   which   are
\nmandatory in nature and, therefore, a direction has been
\nsought to stop operation of all such mines which are being
\n                                         33<\/span><\/p>\n
run notwithstanding the fact that closure orders have already
\nbeen issued by the concerned authorities. It has also been
\ninter alia prayed that a High Level Committee be constituted
\nto enquire the matter pertaining to grant of permission for
\nsuch mining operations.\n<\/p>\n
3.      In the other petition i.e. W.P. No.13329\/2009, the
\nvalidity of Sub-rule (1) and (2) of Rule 49 of M.P. Minor
\nMineral Rules, 1996 (hereinafter referred to as ‘1996
\nRules’ ) which gives exemption from taking environmental
\nclearance under Environment (Protection) Act<\/a>, 1986, Air
\n(Prevention and Control of Pollution) Act<\/a>, 1981 and Water
\n(Prevention      and     Control    of       Pollution)    Act<\/a>,     1974     for
\nexcavation of sand and ‘bajri’ is challenged on the ground
\ninter    alia    that    it   confers        unfettered,    unguided        and
\nuncanalised powers on the Director to grant exemption from
\nobtaining environmental clearances to any particular mine
\nfor special consideration and, thus, the same being in
\nviolation of Sections 13<\/a>, 15(1A)<\/a> and 18<\/a> of the Mines and
\nMinerals        (Development        and       Regulation)         Act<\/a>,     1957
\n(hereinafter referred to as ‘MMDR Act<\/a>‘ ) and Mineral
\nConservation and Development Rules, 1988 (hereinafter
\nreferred to as ‘1988 Rules’ ) is ultra vires besides being
\ndiscriminatory as it is violative of Article 14<\/a> of the
\nConstitution of India. It is therefore inter alia prayed that
\nthe State respondents be directed to ensure that no mining
\nactivity in respect of excavation of sand and ‘bajri’ should
\nbe allowed to be undertaken without seeking prior clearance
\nunder the provisions of Environment (Protection) Act<\/a>, 1986,
\nAir (Prevention and Control of Pollution) Act<\/a>, 1981, Water
\n(Prevention and Control of Pollution) Act<\/a>, 1974 and
\nEnvironmental           Impact     Assessment        (in    short        ‘EIA’ )
\nNotification dated 14.9.2006 and other allied statutory
\nprovisions relating to environment.\n<\/p>\n
                              44<\/span><\/p>\n
4.   W.P. No.13118\/2009 has been preferred by the M.P.
\nState Mining Corporation Ltd. against the letters\/orders of
\nthe State Level Expert Appraisal Committee (Respondent
\nNo.2) dated 12.6.2009, State Level Environment Impact
\nAssessment Authority (Respondent No.3) dated 6.7.2009 and
\nof M.P. State Pollution Control Board (Respondent No.4)
\ndated 13.7.2009 whereunder the petitioner is asked to obtain
\nenvironmental clearances and to obtain NOC under EIA
\nnotification   dated   14.9.2006    issued   by   the   Central
\nGovernment under Rule 5(3) of Environment (Protection)
\nRules, 1986. It has further been asserted that in view of the
\nexemption granted under Rule 49 of the 1996 Rules, the
\nrespondents cannot insist the Corporation to obtain statutory
\nclearances and the NOC under the aforesaid enactments and
\nEIA Notification dated 14.9.2006.\n<\/p>\n
5.   Therefore, the core issue involved in all the three writ
\npetitions is as to whether for carrying out quarry operation
\nof sand and ‘bajri’ environmental clearances and NOC as
\naforesaid are required to be obtained notwithstanding
\nexemption granted in respect of same under Rule 49 of the
\n1996 Rules.\n<\/p>\n
6.   The case of the petitioner of W.P. No.1574\/2008 is that
\nthere is gross dereliction in the matter of enforcement or
\nimplementation of environmental provisions on the part of
\nthe respondents inasmuch as mass scale illegal mining
\nactivities of unprecedented nature are being carried out in
\nthe State of Madhya Pradesh since more than a decade. It
\nhas been further alleged that in reference to query made
\nunder Right to Information Act<\/a>, 2005, the respondent No.4
\nnamely M.P. State Pollution Control Board (in short
\n‘Board’) vide letter dated 11.4.2007 informed the petitioner
\nthat 526 mines which have an area of more than 5 hectares
\n                                  55<\/span><\/p>\n
are being operated in the State of Madhya Pradesh and out of
\naforesaid 526, no application has been received by the Board
\nin respect of 296 mines. It has further been informed that the
\nclosure orders have been issued in respect of 15 mines which
\nhave an area of less than 5 hectares situated in the districts
\nof Gwalior, Bhind, Morena, Datia and Sheopur. The
\npetitioner was further informed that out of 315 mines, 108
\nmines are being run without obtaining any permission under
\nthe Air (Prevention and Control of Pollution) Act<\/a>, 1981,
\nWater (Prevention and Control of Pollution) Act<\/a>, 1974. The
\npetitioner   further   claimed        that   he   has   submitted   a
\nrepresentation to Chief Minister of State of Madhya Pradesh
\nwith the prayer for instituting a high level independent
\nenquiry. It is further stated in the writ petition that in
\nexercise of powers under Section 3(2)<\/a> of the Environment
\n(Protection) Act, 1986 read with Rule 5(3) of Environment
\n(Protection) Rules, 1986, the Central Government has issued
\na notification dated 14.9.2006 which requires that no new
\nproject of the nature listed in Schedule-I to the above
\nnotification shall be undertaken in any part of India unless it
\nis   given    environmental      clearance        by    the   Central
\nGovernment. It is pleaded in the writ petition that the
\naforesaid notification provides full-fledged comprehensive
\nprocedure. Clause III-A, Clause IV and Entry 20 of
\nSchedule-I refers to mining projects. It has further been
\nstated that by order dated 25.8.2003 the respondent No.4 has
\ndirected that grant\/ renewal of environmental permits for
\nmining operations in respect of mining leases over an area of
\nmore than 5 hectares would be the responsibility of the
\nBoard, while in respect of areas having less than 5 hectares
\nthe responsibility of renewal of environmental permits
\nwould be shouldered by the Regional Officers. It has further
\nbeen alleged that around 1300 mines are being illegally
\noperated in State of Madhya Pradesh.\n<\/p>\n
                                 66<\/span><\/p>\n
7.   Respondents No.1 to 3, 6, 8 & 9 (State Authorities)
\nhave filed the return, inter alia, in which, it is pleaded that
\nthe writ petition suffer from the vice of non-joinder of
\nnecessary parties inasmuch as the lessees of the mining
\nleases have not been arrayed as respondents. It has further
\nbeen averred that no material has been brought on record to
\nshow that on account of quarrying operation of sand and
\n‘bajri’, the same is causing environmental pollution and,
\ntherefore,     requires   clearance   under     various   statutory
\nprovisions.\n<\/p>\n
8.   In      W.P.   No.13329\/2009,    besides    questioning   the
\nvalidity of the provisions contained Rule 49 of the Rules of
\n1996, it has been alleged that EIA notification which has
\nbeen issued in exercise of powers delegated by Parliament
\ndoes not exempt sand and ”bajri” mines from environmental
\nclearance, whereas the respondents No.1 and 2 in the return
\nhave stated that challenge to the validity of Rule 49 of the
\n1996 Rules is misconceived. It has been stated that
\nexemption to sand\/’bajri’ mines under Rule 49 of 1996 Rules
\nhas been granted as sand\/’bajri’ constitute altogether a
\ndifferent class, for which neither any mining nor any
\nquarrying is required. Sand and ‘bajri’ are merely surface
\ndeposits and they are accumulated on account of natural
\nflow of river water and for this reason under Rule 49 of
\n1996 Rules sand and ‘bajri’ mines have been exempted from
\nrequirement of obtaining environmental clearance.           It has
\nbeen submitted that for carrying out the process of collection
\nof sand\/’bajri’, no consent or permission from the State
\nPollution Control Board is required because no minimum or
\nmaximum standards or permissible limits are fixed in respect
\nof pollution with regard to sand and ‘bajri’ mines and,
\nfurther it does not involve any mining activity such as
\nexcavation etc. as they are lying on the surface and are lifted
\n                               77<\/span><\/p>\n
from the surface. It has further been submitted that in
\nexercise of powers under Section 15<\/a>(1-A) of MMDR Act<\/a>, the
\nState Government has framed 1996 Rules and same are
\nwithin the legislative competence of the State Government.\n<\/p>\n
9.    In   W.P.   No.13118\/2009,    the    M.P.    State   Mining
\nCorporation Ltd. is the petitioner which is a Corporation
\nfully owned and controlled by Government of Madhya
\nPradesh and is a government company within the meaning of
\nSection 617<\/a> of the Companies Act, 1956. It is the case of the
\npetitioner in the aforesaid writ petition that for carrying out
\nquarrying operations in respect of sand\/’bajri’, no consent,
\npermission or No Objection Certificate from the State
\nPollution Control Board or from any authority under EIA
\nnotification dated 14.9.2006 is required. Rule 49 of the 1996
\nRules framed under Section 15(1A)<\/a> of the MMDR Act by the
\nState Government completely exempts quarrying operations
\nof sand and ‘bajri’ from the requirement of obtaining
\nenvironmental clearance.\n<\/p>\n
10.   Respondents No.1 and 6 in W.P. No.13118\/2009 have
\nfiled counter reply in which, inter alia, it has been stated
\nunder EIA notification dated 14.9.2006, in respect of new
\nmining projects, the expansion or modernization of existing
\nprojects, irrespective of the fact that whether mineral is
\nmajor or minor, prior environmental clearance has to be
\nobtained under the provisions mentioned in the notification
\nas per procedure prescribed therein.\n<\/p>\n
11.   Respondents     No.2    and      3   in     Writ     Petition
\nNo.13118\/2009 have controverted the stand taken by the
\npetitioner and have stated that contention of the petitioner
\nthat no environmental clearance is required to be obtained in
\nrespect of quarrying operations of sand\/’bajri’ is incorrect as
\n                                 88<\/span><\/p>\n
the said notification dated 14.9.2006 does not provide for
\nany exemption in respect of quarrying of sand and ‘bajri’.\n<\/p>\n
12.   Respondent No.4, M.P. State Pollution Control Board,
\nhas filed the return in which objection has been taken with
\nregard to maintainability of the writ petition in so far as it
\npertains to challenge with regard to the orders by which the
\napplications filed by the Corporation seeking environmental
\nclearances have been rejected.         It has been averred that
\nstatutory remedy of an appeal is provided under Section 28<\/a>
\nof the Water (Prevention and Control of Pollution) Act<\/a>, 1974
\nand under Section 31<\/a> of the Air (Prevention and Control of
\nPollution)   Act<\/a>,   1981    against     the   order     rejecting   an
\napplication for grant of consent. It has further been averred
\nthat scope of operation of MMDR Act<\/a> and 1996 Rules as
\nwell as Air (Prevention and Control of Pollution) Act<\/a>, 1981
\nand Water (Prevention and Control of Pollution) Act<\/a>, 1974
\nis totally different.\n<\/p>\n
13.   We have heard Shri Siddharth Gupta, learned counsel
\nappearing for the petitioners in W.P. No.1574\/2008 and W.P.
\nNo.13329\/2009.      He     argued     that    Section    6<\/a>   of     the
\nEnvironment (Protection) Act, 1986 empowers the Central
\nGovernment to make rules in respect of the matters which
\nare specified in sub-section (2) of Section 6<\/a>.           Sub-section
\n(1) of Section 24<\/a> of the Environment Protection Act, 1986
\nprovides that subject to the provisions of sub-section (2), the
\nprovisions of this Act and the rules or orders made therein
\nshall have effect notwithstanding anything inconsistent
\ntherewith contained in any enactment other than this Act. It
\nis submitted that in exercise of powers conferred by Sections
\n6<\/a> and 25<\/a> of the Environment (Protection) Act, 1986 the
\nCentral Government has framed rules which are known as
\nEnvironment (Protection) Rules, 1986 (hereinafter referred
\n                                  99<\/span><\/p>\n
to as ‘1986 Rules’). Rule 5 of the 1986 Rules deals with
\nprohibition and restriction on the location of industries and
\ncarrying on processes and operations in different areas. Rule
\n5(3)(a) of the 1986 Rules, inter alia, provides that whenever
\nit appears to the Central Government that it is expedient to
\nimpose prohibition or restrictions on the location of an
\nindustry or the carrying on of processes and operations in an
\narea, it may by notification in the Official Gazette and in
\nsuch other manner as the Central Government may deem
\nnecessary from time to time, give notice of its intention to
\ndo so.    Rule (3)(b) of the 1986 Rules provides that every
\nnotification issued under clause (a) shall give a brief
\ndescription of the area, the industries, processes in the area
\nabout which such notification pertains and also specify that
\nreasons for the imposition of prohibition or restrictions on
\nthe location of the industries and carrying on of processes or
\noperations in that area. It is further submitted that in
\nexercise of powers under Rule 5(3)(a) of the 1986 Rules
\ninitially notification dated 27.1.1994 was issued by the
\nCentral Government wherein it was provided in respect of
\nmining projects (major minerals with less than 5 hectares), it
\nwas necessary to obtain environmental clearance from the
\nCentral     Government.    The        aforesaid    notification   was
\nsuperseded by notification dated 14.9.2006 by which in
\nrespect of mining operations extraction of natural resources
\nand power generation having an area of more than 5
\nhectares,    requirement   of    obtaining        prior   environment
\nclearance has been prescribed. It has further been submitted
\nthat the aforesaid notification shall have the over-riding
\neffect and shall prevail over the laws made by the
\nLegislature of the State. In support of the aforesaid
\nsubmissions learned counsel has placed reliance on the
\ndecisions of the Supreme Court in S. Jagannath vs. Union
\nof India and others<\/a>, AIR 1997 SC 811. It has further been
\n                                 10<\/span>
\n                                1<\/span><\/p>\n
contended that mining operations are hazardous in nature as
\nit impairs ecology and natural resources and, therefore, it
\nneeds to be regulated. Learned counsel in this connection
\nhas made reference to the decision of Supreme Court in
\nM.C.Mehta vs. Union of India<\/a>, (2004) 12 SCC 118. It has
\nfurther been submitted that Section 24<\/a> of the Environment
\n(Protection) Act, 1986 has to be read in such a manner so as
\nto secure the object of the Act for which it is enacted.
\nDuring the course of submissions learned counsel for the
\npetitioner gave up the challenge to the validity of Rule 49 of
\nthe 1996 Rules. It was submitted that in view of notification
\ndated     14.9.2006   it   is   obligatory   to    obtain     prior
\nenvironmental clearance for mining operations in respect of
\nsand and ‘bajri’.\n<\/p>\n
14.     On the other hand, Shri Naman Nagrath, learned
\nAdditional    Advocate     General   appearing    for   the   State
\nrespondents in W.P. No.13329\/2009 while refuting the
\ncontentions advanced on behalf of the petitioner submitted
\nthat in Schedules I & II appended to the 1996 Rules several
\nminor minerals have been mentioned. However, only sand
\nand ‘bajri’ have been exempted from the requirement of
\nobtaining environmental clearance. It has been submitted
\nthat sand and ‘bajri’ constitute altogether different class of
\nminor minerals for which neither any mining nor any
\nquarrying is required. Sand and ‘bajri’ are mere surface
\ndeposits and thus are accumulated on account of natural flow
\nof river water. Though sand and ‘bajri’ are minor minerals
\nbut no mining whatsoever or even quarrying operations are
\nrequired to be carried out and therefore Rule 49 of the 1996
\nRules exempts sand and ‘bajri’ from environment clearance
\nbecause quarrying of sand and ”bajri” does not cause any
\nenvironmental pollution. While referring to Rule 2(xxix) it
\nhas been submitted that expressions “Mines” and “Owner”\n<\/p>\n
                                   11<\/span>
\n                                  1<\/span><\/p>\n
for the purpose of M.P. Minor Rules, have the same
\nmeanings respectively assigned to them in the Mines Act<\/a>,
\n1952. Section 3(b)<\/a> provides that Mines Act<\/a> shall not apply
\nto any mines engaged in the extraction of kankar, murram,
\nlaterite, boulder, gravel, minor sand, etc. Rule 5 of the 1996
\nRules deals with restrictions on the grant of trade quarry or
\nquarry lease. Rule 5(2)(d) of the 1996 Rules provides that no
\nquarry lease or trade quarry shall be granted in respect of an
\narea except for the mineral sand or ‘bajri’, within the
\ndistance of 100 meters from river banks, nalas, canal,
\nreservoir, dam, any natural water course or any water
\nimpounding structure. Thus, for extraction of sand and
\n‘bajri’ no mining activity is involved. It has further been
\ncontended that in exercise of powers under Section 18<\/a> of
\nMines and Minerals (Development and Regulation) Act<\/a>,
\n1957   the    Central   Government       has    framed   Mineral
\nConservation and Development Rules, 1988. Chapter V of
\nthe said Rules deals with environment clearance which
\ncontains Rules 31 to 41. However, Rule 2(iv) of the 1988
\nRules provides that rules shall not apply to minor minerals.
\nIt has further been contended that MMDR Act<\/a> as well as
\nMines Act<\/a> and the 1988 Rules exempt all the minor minerals
\nfrom the requirement of obtaining environmental clearance.
\nThe State Government has only exempted sand and ‘bajri’
\nquarry from the requirement of obtaining environmental
\nclearance. It has further been contended that no limits or
\nstandards    of   emission   or    discharge   of   environmental
\npollutants have been prescribed either by the Act or the
\nRules in respect of quarrying of sand and ‘bajri’, therefore,
\nthe provisions of the Act and the Rules as well as the
\nnotification do not apply to the quarrying operations of sand
\nand ‘bajri’. In support of the aforesaid propositions learned
\ncounsel has placed reliance on the decisions of the Supreme
\nCourt in M.V.Krishnan Nambissan v. State of Kerala<\/a>, AIR
\n                                      12<\/span>
\n                                     1<\/span><\/p>\n
1966 SC 1676 and Hindustan Lever Ltd. vs. Food Inspector
\nand another<\/a>, (2004) 13 SCC 83. It has further been
\ncontended that notification dated 14.9.2006 does not apply
\nto quarrying of sand and ‘bajri’ as the notification only
\napplies to activity of mining. While referring to definition of
\n“mining operation” and “quarrying operation” in Rule
\n2(xxii) of the 1996 Rules, it has been contended that
\n“mining operations” and “quarrying operations” mean any
\noperation undertaken for the purpose of mining any minor
\nmineral    and     shall    include         erection        of     Machinery,
\nconstruction of roads and other preliminary operations for
\nthe purpose of quarrying and concomitant of handling and
\ntransport of minerals up to the point of dispatch. Since no
\nmachinery is required to be erected for quarrying sand and
\n‘bajri’, therefore, quarrying of sand and ‘bajri’ does not
\namount     to    mining     operations        and      consequently          the
\nnotification dated 14.9.2006 does not apply to the activity of
\nquarrying of sand and ‘bajri’.\n<\/p>\n
15.    On the other hand, Shri Ashish Shroti, learned counsel
\nfor respondent No.3 in W.P.No.13329\/2007 submitted that
\nRule 3(1) of the 1986 Rules deals with standards for
\nemission or discharge of environmental pollutants. Sub-rule
\n(1) of Rule 3 of the 1986 Rules provides that standards of
\nemission or discharge of environmental pollutants from the
\nindustries, operations or processes shall be as specified in
\nSchedules I to IV. Similarly, sub-rule (3-A) of Rule 3 of the
\n1986    Rules    provides     that        emission     or        discharge    of
\nenvironmental pollutants from the industries, operations or
\nprocesses other than those industries, operations or process
\nfor which standards have been specified in Schedule I shall
\nnot exceed the relevant parameters and standards specified
\nin Schedule VI. Similarly, sub-rule (3B) of Rule 3 of the
\n1986 Rules provides that combined effect of emission or
\n                                       13<\/span>
\n                                      1<\/span><\/p>\n
discharge of environmental pollutants in an area, from
\nindustries, operations, processes, automobiles and domestic
\nsources, shall not be permitted to exceed the relevant
\nconcentration in ambient air as specified against each
\npollutant to columns (3) to (5) of Schedule VII. Relying on
\nthe aforesaid provision, it has been contended that in respect
\nof quarrying of sand and ‘bajri’, standards of emission or
\ndischarge of environmental pollutants prescribed under
\nRules 6 & 7 in schedule appended to the Rules are required
\nto    be   obtained.    It    has     further    been     contended      that
\ntransportation of sand results in air pollution and, therefore,
\nenvironmental clearance is required to be obtained. While
\nreferring to Section 25<\/a> of the Water (Prevention and Control
\nof Pollution) Act<\/a>, 1974, it has been contended that consent
\nis mandatory before undertaking mining operations in
\nrespect of sand and ‘bajri’.\n<\/p>\n
16.        Shri    Sushrut.    Dharmadhikari,            learned      counsel
\nappearing for respondent No.5 in W.P.No.13329, relying on
\nparagraphs 45 and 46 of the judgment of Supreme Court in
\nM.C.Mehta (supra) has submitted that natural resources of
\nair, water and soil cannot be utilized, if the utilization
\nresults in irreversible damage to environment. It is argued
\nthat in recent past it has been noticed that there is growing
\ntendency      of   non-compliance           of   the     statutory     norms
\nprescribed for protection of environment.                 The activity of
\nmining sand and ‘bajri’ is hazardous in nature and results in
\nenvironmental        pollution,       hence      prior      environmental
\nclearance     is    required        under    EIA       notification     dated
\n14.9.2006. It has further been argued that purposive
\nconstruction has to be given while implementing the
\nnotification dated 14.9.2006.\n<\/p>\n
17.    Shri V. Bhide, learned counsel for respondent No.6
\n                                    14<\/span>
\n                                   1<\/span><\/p>\n
while adopting the submissions made by the learned counsel
\nfor respondent No.5 has submitted that for quarrying of sand
\nand ‘bajri’, the requirement of prior environmental clearance
\nis necessary. Learned counsel has placed reliance on the
\ndecisions of Supreme Court in M.C. Mehta vs. Union of
\nIndia<\/a>, (2009) 6 SCC 142 in support of his submissions.\n<\/p>\n
18.   Shri Viplav Sharma, learned counsel for the petitioner
\nin W.P.No.13118\/2009, has submitted that MMDR Act<\/a> was
\nenacted by the Parliament in 1957 whereas Water Act<\/a>, Air
\nAct<\/a> and Environment (Protection) Act<\/a> were respectively
\nenacted in the years 1974, 1981 and 1986.                After the
\nenactment    of    environment      laws,   Section    15(1A)<\/a>    was
\nincorporated in the MMDR Act<\/a> with effect from 10.2.1987
\nwhich empowers the State Government to frame rules in
\nrespect of minor minerals in respect of the matter specified
\nin sub-section (1A) of Section 15<\/a>. In exercise of powers
\nconferred under sub-section (1-A) of Section 15<\/a> of the
\nMMDR Act, the State Government has framed Madhya
\nPradesh Minor Mineral Rules, 1996. Rule 49(1) of the 1996
\nRules contains a non-obstante clause and provides that
\nprovisions of Rules 44 to 48 shall not apply to sand and
\n‘bajri’ quarrying. Though the notification dated 14.9.2006
\ndoes not apply to sand and ‘bajri’ quarrying yet even if it
\nassumed that it applies to sand and ‘bajri’ quarrying then it
\nruns foul to Rule 49(1) of the 1996 Rules. It is submitted
\nthat it is trite law that provisions of Rules have to prevail
\nover the notification.\n<\/p>\n
19.   It   has    further   been    submitted   that   neither   the
\nEnvironmental (Protection) Act, 1986 nor the Environmental
\nProtection Laws provide for standards of emission of
\ndischarge of environmental pollutants. While referring to
\nvarious provisions of Air Act<\/a> and Water Act<\/a>, it has been
\n                                15<\/span>
\n                               1<\/span><\/p>\n
contended that no standards of emission or discharge of
\npollutants have been described in respect of quarrying of
\nsand and ‘bajri’. On the aforesaid premise, it is submitted
\nthat for carrying out quarrying operations of sand and
\n‘bajri’, no environmental clearance is required to be
\nobtained.\n<\/p>\n
20.     Shri Mohd. Ali, learned counsel for the intervener,
\nwhile supporting the submissions made on behalf of the
\npetitioners in W.P.No.1574\/2008 and W.P.No.13329\/2009,
\nhas contended that it is necessary to obtain environmental
\nclearance for carrying on quarrying operations of sand and
\n‘bajri’ as the same results in environmental pollution. It has
\nfurther been contended that Rule 49 in so far it exempts
\nquarrying of sand and ‘bajri’ from the requirement of
\nobtaining environmental clearance runs counter to the
\nprovisions of central enactment, rules and notifications
\nissued thereunder and therefore in view of Article 254<\/a> of the
\nConstitution of India, the provisions of Central enactment
\nwill prevail over the provisions of law enacted by State
\nLegislature.\n<\/p>\n
21.     We have considered the arguments made on both sides.
\nSince     learned   counsel   for   the   petitioner   in   W.P.
\nNo.13329\/2009 during the course of arguments has given up
\nthe challenge to the validity of Rule 49 of the 1996 Rules,
\ntherefore, we need not dwell on the issue pertaining to
\nvalidity of Rule 49 of the 1996 Rules and now the only issue
\nwhich survives for consideration in the instant writ petitions
\nis as to whether the Notification dated 14.9.2006 issued by
\nthe Central Government under Rule 5(3) of Environmental
\nProtection Rules and the impugned orders\/letters dated
\n12.6.2009, 6.7.2009 and 13.7.2009 which form the subject
\nmatter of challenge in Writ Petition No.13118\/09 are
\napplicable in respect of quarrying operation of sand and
\n                                   16<\/span>
\n                                  1<\/span><\/p>\n
‘bajri’ notwithstanding the fact that Rule 49 of the 1996
\nRules exempts the same from the provisions of Environment
\n(Protection) Act<\/a>, 1986, Air (Prevention and Control of
\nPollution) Act<\/a>, 1981, Water (Prevention and Control of
\nPollution) Act<\/a>, 1974 and the Rules made thereunder.\n<\/p>\n
22.   In order to appreciate and adjudicate the issue involved
\nin these petitions, it is necessary to first examine relevant
\nprovisions of law.\n<\/p>\n
23.   It would be necessary to take notice of different
\nenactments made by Parliament namely MMDR Act<\/a> as well
\nas other laws enacted from time to time pertaining to
\nprotection of environment and natural resources.                  The
\nMMDR Act<\/a> is an Act to provide for the development and
\nregulation of mines and minerals under the control of the
\nUnion. Section 15<\/a> of the MMDR Act confers power on State
\nGovernments to make rules in respect of minor minerals.
\nSub-section (1) of Section 15<\/a> of the MMDR Act provides
\nthat the State Government may by notification in the Official
\nGazette, make rules for regulating the grant of quarry leases,
\nmining leases or other mineral concessions in respect of
\nminor minerals and for purposes connected therewith.
\nEnvironment (Protection) Act<\/a>, 1986 came into force on
\n12.11.1986,    whereas      Air   (Prevention     and   Control    of
\nPollution) Act<\/a>, 1981 came into force in the year 1981 and
\nWater (Prevention and Control of Pollution) Act<\/a>, 1971 had
\ncome into force in the year 1971. Thereafter, the Parliament
\nincorporated sub-section (1A) in Section 15<\/a> of the MMDR
\nAct by Act No.37 of 1986 and it came into force with effect
\nfrom 10.2.1987. It is to be noted that sub-section (1A) in
\nSection 15<\/a> of MMDR Act was inserted by the Parliament in
\nthe   year    1987   i.e.   subsequent   to     enactment   of    Air
\n(Prevention and Control of Pollution) Act<\/a>, 1981, Water
\n(Prevention and Control of Pollution) Act<\/a>, 1971 and
\n                               17<\/span>
\n                              1<\/span><\/p>\n
Environment (Protection) Act<\/a>, 1986.        Clause (i) of sub-
\nsection (1A) of Section 15<\/a> of the MMDR Act, inter alia,
\nempowers the State Government to frame Rules in the
\nmanner in which rehabilitation of flora and other vegetation,
\nsuch as trees, shrubs and the like destroyed by reason of any
\nquarrying or mining operations shall be made in the same
\narea or in any other area selected by the State Government
\nby the person holding the quarrying or mining lease. The
\n1996 Rules are enacted by the State Legislature in exercise
\nof powers under Section 15<\/a> of MMDR Act and therefore
\nRule 49 of the 1996 Rules is a validly enacted provision of
\nlaw. Chapter VIII of the 1996 Rules deals with protection of
\nenvironment. Rule 44 of the 1996 Rules enjoins a duty on
\nevery holder of quarry lease to take all possible precautions
\nfor the protection of environment and control of pollution
\nwhile   conducting   quarrying     operations   in   the   manner
\nprescribed therein. It reads as under:\n<\/p>\n
           “44. Protection of Environment.- (1)
\n           Every holder of quarry lease shall take all
\n           possible precautions for the protection of
\n           environment and control of pollution while
\n           conducting quarrying operation in the
\n           following manner:-\n<\/p><\/blockquote>\n
           (a)   Wherever top soil exists and is to be
\n                 excavated for quarrying operation, it
\n                 shall be removed separately;\n<\/p><\/blockquote>\n
           (b)   The top soil so removed shall be
\n                 stored for future use;\n<\/p><\/blockquote>\n
           (c)   The dumps shall be properly secured
\n                 to prevent escape of material
\n                 therefrom and cause land degradation
\n                 or damage to agricultural fields,
\n                 pollution of surface water bodies or
\n                 cause floods;\n<\/p><\/blockquote>\n
           (d)   The site of dumps shall be selected as
\n                 far as possible on impervious and
\n                 barren ground within the leased area;\n<\/p><\/blockquote>\n
                              18<\/span>
\n                             1<\/span><\/p>\n
           (e)   The top soil dumps shall be suitably
\n                 terraced   and stabilised   through
\n                 vegetation or otherwise.\n<\/p><\/blockquote>\n
           (2)    The top soil so removed shall be
\n           utilized for restoration or rehabilitation of
\n           the land which is no longer required for
\n           quarrying operations.<\/p><\/blockquote>\n
           (3) Removal, Storage and utilization of
\n           overburden, etc.<\/p>\n<\/blockquote>\n
           (a)   Every holder of a quarry lease shall
\n                 take steps so that the overburden,
\n                 waste   rock,   rejects  and    fines
\n                 generated during quarrying or during
\n                 sizing shall be stored in separate
\n                 dumps;\n<\/p><\/blockquote>\n
           (b)   The dumps shall be properly secured
\n                 and shall be suitably terraced and
\n                 stabilised through vegetation or
\n                 otherwise;\n<\/p><\/blockquote>\n
           (c)   Wherever possible, the waste rock,
\n                 over burden etc. shall be backfilled
\n                 into the quarry excavations with a
\n                 view to restoring the land to its
\n                 original use as far as possible;\n<\/p><\/blockquote>\n
           (d)   The fines shall be so deposited and
\n                 disposed that they are not allowed to
\n                 flow away and cause land degradation
\n                 or damage to agricultural fields,
\n                 pollution of surface water bodies or
\n                 cause floods.”<\/p><\/blockquote>\n
Rule 45 of the 1996 Rules deals with reclamation and
\nrehabilitation of lands whereas Rule 46 of the 1996 Rules
\ndeals with precautions against damage to public places, air
\npollution and noise pollution. Rule 46 of the 1996 Rules
\nbeing relevant for the purpose is reproduced herein for the
\nfacility of reference:-\n<\/p>\n
           “46. Precautions against damage to public
\n           places, air pollution and noise pollution,
\n           etc.- Every holder of a quarry lease shall,-\n<\/p><\/blockquote>\n
                               19<\/span>
\n                              1<\/span><\/p>\n
           (i) take adequate precautions against
\n           damage to public buildings or monuments,
\n           roads, religious places either within the
\n           lease area or in proximity to the lease area;\n<\/p><\/blockquote>\n
           (ii) air pollution due to fines, dust, etc.;
\n           shall be controlled, and kept within
\n           permissible limits specified in the Air
\n           (Prevention and Control of Pollution) Act<\/a>,
\n           1981 (No.14 of 1981) and the Environment
\n           (Protection) Act<\/a>, 1986 (No.29 of 1986) and
\n           rules made thereunder;\n<\/p><\/blockquote>\n
           (iii) noise arising out of quarrying
\n           operations shall be abated or controlled at
\n           the sources so as to keep it within
\n           permissible limits”.\n<\/p><\/blockquote>\n
24.   Rule 47 of the 1996 Rules deals with penalty whereas
\nRule 48 of the 1996 Rules prescribes for filing of returns.
\nRule 49 of the 1996 Rules deals with relaxation from
\nprotection of environment. Rule 49 of the 1996 Rules which
\nis relevant for the purpose of adjudication of the controversy
\ninvolved in the instant writ petitions is reproduced below:-\n<\/p>\n
         “49. Relaxation from protection of
\n         Environment. – (1) Notwithstanding
\n         anything contained in these rules the
\n         provisions of Rules 44, 45, 46, 47 and 48
\n         shall not apply to sand and ‘bajri’
\n         quarrying.\n<\/p><\/blockquote>\n
           (2) Relaxations may be granted by the
\n         Director, to a quarry lease holder from all
\n         or some of the provisions of environmental
\n         protection on special considerations.”\n<\/p><\/blockquote>\n
25.   Thus, sub-rule (1) of Rule 49 of the 1996 Rules
\nprovides that provisions of Rules 44 to 48 of the 1996 Rules
\nshall not apply to sand and ‘bajri’ quarry. Thus, by sub-rule
\n(1) of Rule 49 of the 1996 Rules, the provisions of Air
\n(Prevention and Control of Pollution) Act<\/a>, 1981 and
\nEnvironment (Protection) Act<\/a>, 1986 and the Rules made
\n                                    20<\/span>
\n                                   2<\/span><\/p>\n
thereunder have been made inapplicable in respect of sand
\nand ‘bajri’ quarry.\n<\/p>\n
26.    Now we may advert to the provisions of Environment
\n(Protection) Act<\/a>, 1986. The Environment (Protection) Act<\/a>,
\n1986    is     an   Act   to   provide   for   the   protection   and
\nimprovement of environment and for matters connected
\ntherewith. Section 7<\/a> of the Environment (Protection) Act,
\n1986 provides that no person carrying on any industry,
\noperation and process shall discharge or emit or permit to be
\ndischarged or emitted any environmental pollutants in excess
\nof such standards as may be prescribed. Section 25<\/a>
\nempowers the State Government to make rules with regard to
\nthe matters which have been enumerated in sub-section (2)
\nof Section 25<\/a> of the Act. Section 24<\/a> of the Act which is
\nrelevant for the purpose of controversy involved in the
\ninstant writ petitions is extracted below:-\n<\/p>\n
             “24. Effect of other laws.- (1) Subject to
\n             the provisions of sub-section (2), the
\n             provisions of this Act and the rules or
\n             orders made therein shall have effect
\n             notwithstanding      anything inconsistent
\n             therewith contained in any enactment
\n             other than this Act.\n<\/p><\/blockquote>\n
             (2)     Where any act or omission
\n             constitutes an offence punishable under
\n             this Act and also under any other Act then
\n             the offender found guilty of such offence
\n             shall be liable to be punished under the
\n             other Act and not under this Act.”<\/p><\/blockquote>\n
27.    Thus, from perusal of Section 24<\/a> of the Environment
\n(Protection) Act it is clear that subject to provisions of sub-
\nsection (2) the provisions of the Act and the rules or orders
\nmade therein shall have effect notwithstanding anything
\ninconsistent therewith contained in any enactment other than
\nthis Act. The expression “enactment” has not been defined
\n                               21<\/span>
\n                              2<\/span><\/p>\n
under the Environment (Protection) Act<\/a>, 1986.        Therefore,
\nwe may refer to the provisions of the General Clauses Act<\/a>,
\n1897. Section 3(19)<\/a> defines the expression “enactment” as
\nunder:-\n<\/p>\n
          “(19) “enactment” shall include a
\n          Regulation (as hereinafter defined) and
\n          any Regulation of the Bengal, Madras or
\n          Bombay Code, and shall also include
\n          any provision contained in any Act or in
\n          any such Regulation as aforesaid.”<\/p><\/blockquote>\n
     Section 3(50)<\/a> defines the expression “Regulation” as
\nunder:-\n<\/p>\n
          (50)    “Regulation”     shall   mean    a
\n          Regulation made by the President under
\n          Article 240<\/a> of the Constitution, and shall
\n          include a Regulation made by the
\n          President under Article 243<\/a> thereof and; a
\n          Regulation    made     by    the   Central
\n          Government under the Government of
\n          India Act, 1870, or the Government of
\n          India Act, 1915, or the Government of
\n          India Act, 1935.”\n<\/p>\n
     Thus, if Rule 49 of the 1996 Rules which has been
\nframed by the State Legislature under Section 15<\/a> of the
\nMMDR Act is viewed in context to the definition of
\n“enactment” as provided in Section 3(19)<\/a> of the General
\nClauses Act and the definition of “Regulation” as defined in
\nSection 3(50)<\/a> of the General Clauses Act, it is apparent that
\nit does not fall within the meaning of the expression
\n“enactment”. For the aforementioned reasons non-obstante
\nclause contained in Section 24(1)<\/a> of the Environment
\n(Protection) Act, 1986 does not apply to Rule 49 of the 1996
\nRules and, therefore, contention raised on behalf of the
\ncounsel for the petitioners that notification dated 14.9.2006
\nissued under Rule 5(3) of Environment (Protection) Rules,
\n1986 will prevail over Rule 49(1) of the 1996 Rules in view
\n                                22<\/span>
\n                               2<\/span><\/p>\n
of Section 24<\/a> of the Environment (Protection) Act, cannot be
\naccepted.\n<\/p>\n
28   That apart, the Environment (Protection) Act<\/a>, 1986
\nnamely Act No.29 of 1986 was enacted on 23 rd of May, 1986
\nafter receiving the assent of the President of India which
\ncame into force with effect from 19.11.1986 whereas Section
\n15(1A)<\/a> of the MMDR Act was enacted vide Act No.37 of
\n1986 subsequent to the Act No.29 of 1986 and came into
\nforce on 10.2.1987. Thus, the Parliament was aware of the
\nearlier legislation and its non-obstante clause yet power was
\nconferred by the later enactment authorizing the State
\nLegislature to make rules in respect of minor minerals.
\nTherefore, it would be assumed that the legislative intent or
\nmandate is that the rule framed by the State under Section
\n15(1A)<\/a> of MMDR Act should prevail over all previous
\nenactments on the subject. It is well settled preposition of
\nlaw that if the legislature does not want the later enactment
\nto prevail then it could and would provide in the later
\nenactment that provisions of the earlier enactment continue
\nto apply.   It is also cardinal principle of interpretation of
\nstatute that later enactment must prevail over the earlier one
\neven if the non-obstante clause is provided in the earlier
\nenactment. Therefore, Section 15(1A)<\/a> of the MMDR Act
\nsince was brought in the statute book at later point of time
\ncannot be made inoperative because of non-obstante clause
\nof the Act which was enacted earlier in point of time namely
\nEnvironment (Protection) Act<\/a>, 1986. We are fortified in our
\nview by the decision of the Supreme Court in KSL and
\nIndustries Ltd. v. Arihant Threads Ltd<\/a>., (2008) 9 SCC 763
\nwherein the Supreme Court has held that where there are two
\nspecial statutes which contain non-obstante clauses, later
\nstatute mus prevail. Besides that, if the petitioner’s aforesaid
\ncontention is accepted then it would amount to giving higher
\n                               23<\/span>
\n                              2<\/span><\/p>\n
status or putting the Notification on higher pedestal than the
\nstatutory Rules. However, we need not to further deliberate
\non this issue and suffice it to say on this since the
\nNotification under Rule 5(3) of Environment (Protection)
\nRules, 1986 is not an enactment within the meaning of
\nSection 24(1)<\/a> of the Environment Protection Act and,
\ntherefore, it cannot have overriding effect on Rule 49 of the
\n1996 Rules.\n<\/p>\n
29.   It is also relevant to mention that Rule 49(1) of the
\n1996 Rules is the special provision relating to sand and
\n‘bajri’ only. Section 24<\/a> of the Environment (Protection) Act,
\n1986 is a general provision. It is well settled in law that if
\nthe special provision is made on a certain matter, that matter
\nis excluded from the general provision. In this connection,
\nwe may refer to decisions of the Apex Court reported in
\nVenkateshwar Rao vs. Govt. of Andhra Pradesh<\/a>, AIR 1966
\nSC 828, State of Bihar v. Yogendra Singh<\/a>, AIR 1982 SC
\n882, Maharashtra State Board of Secondary and Higher
\nSecondary Education vs. Paritosh Bhupesh Kumar Sheth<\/a>,
\n(1984) 4 SCC 27. For this additional reason also, the
\nnotification dated 14.9.2006 shall not apply in respect of
\nquarrying operations of sand and ‘bajri’.\n<\/p>\n
30.   It is also relevant to mention here that though in
\nSchedules I & II appended to the 1996 Rules several minor
\nminerals like granite, marble, limestone, flag stone, etc. are
\nincluded yet only sand and ‘bajri’ have been exempted from
\nenvironmental clearance. It is also relevant to mention here
\nthat Central Government in exercise of powers under Section
\n18<\/a> of the MMDR Act has framed Rules, namely, Mineral
\nConservation and Development Rules, 1988. Chapter V of
\nthe 1988 Rules deals with Environment. Rules 31 to 41 deal
\nwith protection of environment. However, aforesaid Rules
\n                                  24<\/span>
\n                                 2<\/span><\/p>\n
which have been framed by the Central Government have not
\nbeen made applicable to minor minerals as is clear from
\nRule 2(iv) of the 1988 Rules. Thus, minor minerals have
\nbeen kept outside the purview of even 1988 Rules by the
\nCentral Government. It appears that the State Legislature has
\ntreated the sand and ‘bajri’ to be a different class of minor
\nmineral. It is a matter of common knowledge that sand and
\n‘bajri’ are merely surface deposits and are accumulated on
\naccount of natural flow of river water. Though sand and
\n‘bajri’ are classified as minor minerals, yet no mining or
\nquarrying operations are required to be carried out. The
\nprocess of removal of mineral simply involves collection of
\nalready deposited sand\/ ‘bajri’ on the baks of river and,
\ntherefore, it appears that exemption has been granted by the
\nState Legislature from the requirement of compliance with
\nprovisions of Environment Protection Act<\/a> and the Rules
\nframed thereunder.\n<\/p>\n
31.   For the aforesaid reasons, we hold that provisions of
\nnotification dated 14.9.2006 issued in exercise of powers
\nunder Rule 5(3)(a) of the Environment (Protection) Rules,
\n1986 do not apply to quarrying operations of sand and
\n‘bajri’ in view of Rule 49(1) of M.P. Minor Mineral Rules,
\n1996. Consequently, no prior environmental clearance is
\nrequired to be obtained in respect of quarrying of sand and
\n‘bajri’. Needless to state that if any mining or quarrying
\nactivity which is covered under notification dated 14.9.2006
\nis being carried on in contravention of provisions of
\nnotification dated 14.9.2006, the State Government shall
\ntake effective steps immediately to stop such an activity in
\naccordance with law.\n<\/p>\n
32.   Resultantly,        Writ   Petition    No.1574\/2008      and
\nW.P.No.13329\/2009 are dismissed whereas Writ Petition
\nNo.13118\/2009        is   allowed.    Consequently,   letter\/orders
\n                                         25<\/span>
\n                                        2<\/span><\/p>\n
        contained    in   Annexures-P-1      to   P-4   dated   12.6.2009,
\n        06.7.2009,    13.7.2009   and     30.9.2009     respectively   are
\n        quashed.\n<\/p>\n
            (S.R.Alam)                             (Alok Aradhe)\n            Chief Justice                              Judge\n\nRM\/YS\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Ajay Dubey vs The State Of Madhya Pradesh on 29 September, 2010 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-255052","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nAjay Dubey vs The State Of Madhya Pradesh on 29 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajay-dubey-vs-the-state-of-madhya-pradesh-on-29-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajay Dubey vs The State Of Madhya Pradesh on 29 September, 2010 - 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