C/LPA/824/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 824 of 2013 In SPECIAL CIVIL APPLICATION NO. 8480 of 2013 With SPECIAL CIVIL APPLICATION NO. 13910 of 2012 With CIVIL APPLICATION NO. 6934 of 2013 In LETTERS PATENT APPEAL NO. 824 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE MOHINDER PAL =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =========================================================== NATWARSINH BADARSINH RATHOD....Appellant(s) Versus Page 1 of 86 C/LPA/824/2013 JUDGMENT STATE OF GUJARAT THRO.THE SECRETARY & 3....Respondent(s) =========================================================== Appearance in LPA No.824 of 2013: MR PR NANAVATI, ADVOCATE with MR VM PANCHOLI, ADVOCATE for the Appellant(s) No. 1 MR KAMAL TRIVEDI, ADVOCATE GENERAL assisted by MR RA RINDANI, AGP for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 2 Appearance in CA No.6934 of 2013: MR PR NANAVATI, ADVOCATE with MR VM PANCHOLI, ADVOCATE for the Applicant MR KAMAL TRIVEDI, ADVOCATE GENERAL assisted by MR RA RINDANI, AGP for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 2 Appearance in CA No.13910 of 2012: MR YN OZA, SENIOR ADVOCATE assisted by MR RK SAVJANI, ADVOCATE for the Petitioner MR KAMAL TRIVEDI, ADVOCATE GENERAL assisted by MR RA RINDANI, AGP for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 2 =========================================================== CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 12-13/02/2014 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The appellant Natwarsinh Badarsinh Rathod - original petitioner in SCA No.8480 of 2013 is before this Court being aggrieved by order passed by the learned Page 2 of 86 C/LPA/824/2013 JUDGMENT Single Judge on 08.05.2013 in SCA No.8480 of 2013. The learned Single Judge was pleased to dispose of the petition by setting out the relevant facts in para-3 and reasons for the same in paras-4 and 5 of the order, which read as under:-
"3. Learned counsel, Shri Pancholi has referred to the papers and submitted that the application at AnnexureA made by the petitioner for the land bearing survey no.942/1 situated at moje Adodiya, Taluka : Mansa, District :
Gandhinagar has been rejected on the grounds stated in the application, however, subsequently when he had called for information under the Right to Information Act, he came to know that in adjoining land bearing survey nos.941 and 942 pk., similar lease has been granted, which has been denied to the petitioner on the grounds dated in the reply/communication for refusing the grant of lease. He therefore submitted that some environment aspect and wild life would remain but still those persons have been granted and, therefore on the ground of parity, the application of the petitioner ought to have been considered. He has also submitted that Revision was preferred by the petitioner, which also came to be rejected as per the order dated 17.04.2013 at AnnexureH on the ground that subsequently the report of the Forest Department has been received dated 01.10.2011 and, therefore, such lease is refused to the petitioner. However, learned counsel, Shri Page 3 of 86 C/LPA/824/2013 JUDGMENT Pancholi submitted that the Court may also consider whether such report was subsequently called for by the authority or it was available or not when earlier two lease have been granted in favour of those two persons. He therefore submitted that on the ground of parity, the present petitioner ought to have been granted lease and the present petition may be entertained on the ground of equity and parity.
4. Though the submissions have been made, as it appears from the papers including the communication at Annexure-B that in the said order dated 17.10.2011 of the Collector, it is specifically stated that the land in question is near to the reserved forest area and because the wild life is found near said area, lease is not granted. The said order dated 17.10.2011 was subject to the revision. Admittedly, the petitioner has also filed Revision, which came to be rejected by the impugned order dated 17.04.2013 for the grounds mentioned in the application. The emphasis which has been made is on the ground of parity that two other persons have been granted lease in respect of the adjoining area bearing Survey Nos.941 and 942 and same ground or limitation would be applicable. Therefore, the submission that same limitation or restriction would also be attracted for the purpose of grant of lease qua those persons and when they have been granted, the petitioner also on the ground of parity is claiming the similar treatment. However the submission is required to be considered in background of the facts. It is evident from the Page 4 of 86 C/LPA/824/2013 JUDGMENT letter/communication dated 17.10.2011 at Annexure-B refusing the grant of lease by the Collector that it has been refused on the grounds stated therein regarding environment aspect. Even in the order of the revisional authority dated 17th April, 2013, it is stated that the report of the Forest Department is received dated 08.10.2011, which is the basis for refusing such permission qua the petitioner. It is also stated that when the lease of two persons were granted in the year 2010, the said report was not available and, therefore, since it has been granted, he cannot claim any parity. Further if the lease which has been granted qua two other persons would in any case expire now after a period of three years and, therefore, same treatment would be meted out. Therefore now there is no justification to entertain the present petition in the year 2013 for entertaining such application for the grant of lease inspite of the reasons stated in the impugned order passed by the Collector at AnnexureB dated 17.10.2011 and the order at AnnexureH passed by the Revisional Authority dated 17.04.2013. Therefore, the claim made by the petitioner on the ground of parity cannot be accepted as there cannot be a parity and the mistake cannot be permitted to be perpetuated even if it is causing some hardship. But when the issue of environment is raised, it cannot be compromised and the High Court would declined to exercise the discretion under Article 226 of the Constitution of India.
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5. At the same time, it is also directed that after the expiry of period of lease already granted in favour of those two persons, they would adopt the same criteria and would maintain the parity for the purpose of maintaining the environment while considering any request even if for renewal."
(emphasis supplied)
2. On matter coming up for hearing on 31.07.2013, this Court passed the following order:-
"Heard learned advocate Mr.P.R. Nanavaty appearing with Mr.V.M. Pancholi for the appellant. Learned AGP Mr.Rashesh Rindani to place on record list of lease-holders in the same area along with details of the period for which such lease-holders are granted lease and whether they continue to hold lease till today. Adjourned to 08.08.2013. A copy of this order be given to learned AGP Mr.Rashesh Rindani for its onward communication for compliance."
(emphasis supplied) 2.1 On 26.08.2013, learned AGP requested for some time, which was granted and the matter was adjourned to 29.08.2013. Again on 29.08.2013, learned AGP prayed for some more time, which was granted. Learned Advocate for the appellant received reply, which is recorded in order dated 02.09.2013, to which rejoinder was filed and therefore, the matter was adjourned.Page 6 of 86
C/LPA/824/2013 JUDGMENT 2.2 The matter then came up for consideration of
this Court on 06.09.2013. The Court passed a detailed order recording thus:-
"Every law is to be implemented through human agency - Government officers and their willingness to implement laws is affected by various factors. The present is the case wherein a specific affidavit is filed by the present appellant-Natwarsinh, son of Badarsinh Rathod, wherein in para 7 it is specifically mentioned that, "7. With reference to para no.11 of the reply, I say and submit that the averments and contentions made therein are misconceived. I say and submit that I am not claiming any negative parity as alleged. It appears that the office, who has filed the affidavit, is trying to defend the persons who are granted quarry lease by submitting that the said persons are already having quarry lease permission because the said permissions are granted prior to Government Resolution dated 22.02.2011. I say and submit that the officer, who has filed the affidavit, has not sated about the Government Resolution dated 02.04.2008 and the order passed by the Hon'ble Apex Court on 04.08.2006, which are referred to by this Hon'ble Cort in the order dated 15.02.2011 passed in Special Civil Application No.601 of 2011.
It is further submitted that from the
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order passed by this Hon'ble Court, it is clear that before passing the Government Resolution dated 22.02.2011, Government Resolution dated 02.04.2008 was also passed by the Government, wherein also, there is reference with regard to obtaining No Objection Certificate of the forest department before the grant of permission to carry out mining or to establish an industries in the entire non forest land coming within the radius of 5 Kms. from the boundary of national park/ sanctuary/ conversation (sic.) reserved. I, therefore, say and submit that the respondent cannot close their eyes by submitting that the permission was granted to the concerned persons before passing resolution and therefore, they can carry out mining activities and that too, when the appellant has specifically pointed out to them by the representation dated 03.03.2012 i.e. long back, in spite of that no action is taken by the respondents against those persons. Thus prima facie it is clear that the discriminatory treatment is given to the appellant with mala fide intention and with a view to favour other persons, who are carrying out mining lease activity in the adjoining survey numbers.
It is further submitted that as per the information received by the appellant, mining activity is also going on as on today in the nearby area and in certain cases, the respondent authorities have Page 8 of 86 C/LPA/824/2013 JUDGMENT renewed the quarry lease and therefore, the information was sought for under the Right to Information Act, however till date, no information is received."
Despite the specific averments made therein and despite the fact that a copy of order of this Court in Special Civil Application No.601 of 2011 is on record as Annexure R/3 produced by the very same deponent, viz. Mohammed Yusuf Husainmiya Shaikh, Assistant Geologist, Gandhinagar, from the Office of the District Collector, Mining Branch, Gandhinagar, has an audacity to state in his recent affidavit affirmed on 04.09.2013, to say as under:
"5. I say and submit that at the relevant point of time when this lease were granted, there was no procedure for taking an opinion from the Forest Department, as contemplated in the Government Resolution dated 22.02.2011. The aforesaid fact may not be construed as the State Authorities are not in a position to terminate the leases which are already granted."
(emphasis supplied)2. Despite this latest statement that, "..
The aforesaid fact may not be construed as the State Authorities are not in a position to terminate the leases which are already granted." it is reported that no action is taken by the State Government. Despite the fact that in the LPA notice was issued on 31.07.2013, wherein this Court asked the Page 9 of 86 C/LPA/824/2013 JUDGMENT learned Assistant Government Pleader to place on record list of leaseholders in the same area along with details of the period for which such leaseholders are granted lease and whether they continue to hold lease till today. It is really painful that in this very affidavit it is stated that the authorities have rejected as many as 51 applications and an impression is sought to be created as if the authorities are strictly implementing the policy of protection of forest and forest lands. The net effect of rejection of those 51 applications is that a monopoly is created in favour of a selected few whose names are set out in the least (sic-list) which is annexed as Annexure-1 to this affidavit. It is mentioned in the list that there are only six persons, who are permitted to excavate sand in this area. Against two of those six persons, there is a stay order granted by this Court on 12.12.2012 in Special Civil Application No.13910 of 2012, but so far as remaining four are concerned there is no status quo granted by any court, but still under the guise that renewal application is pending they are permitted to excavate.
3. We have called for papers of Special Civil Application No.13910 of 2012 for perusal of order dated 12.12.2012. The order reads as under:
"This Speaking to Minute Note is filed by the petitioner by stating to add "directing the respondent to maintain status quo qua the show cause notice Page 10 of 86 C/LPA/824/2013 JUDGMENT proceedings", in the order dated 5.12.2012 in Special Civil Application No.13910 of 2012.
Heard.
Perused the note. Office is directed to issue fresh writ of the aforesaid order by adding "the respondent is directed to maintain status quo qua the show cause notice proceedings till the returnable date", in the para 4 of the order.
The Speaking to Minutes Note is disposed of."
4. This is construed to mean that the petitioners are permitted to excavate sand. Para 4 of the order with reference to which Speaking to Minutes Note is filed reads as under:
"Hence, Rule returnable on 24.12.2012. Learned AGP Mr.Rohan Yagnik waives service of rule on behalf of the State. Ad interim relief in terms of para 24(B) till then. Direct service is permitted."
Para 24-B reads as under:
"Pending hearing and final disposal of this Special Civil Application Hon'ble Court be pleased to direct the respondents its servant and agents to issue forthwith royalty passes, in accordance with law, in favour of the petitioner for excavation of simple sand as per the terms of contract."Page 11 of 86
C/LPA/824/2013 JUDGMENT Despite this clear relief, Speaking to Minutes was filed and order of status quo was obtained so as to present before the authorities that there is a status quo order and they should be permitted to continue to excavate sand. Be that as it may the fact remains that the deponent in his affidavit dated 04.09.2013 has made a statement which is found not supported by record, inasmuch as prior to the Government Resolution dated 22.02.2011 there was another GR dated 02.04.2008 and that is referred to in the order dated 15.02.2011 in Annexure 'R-3', which is produced by the very same deponent before this Court and in that very order there is a reference to the order of the Hon'ble the Apex Court dated 04.08.2006. Despite that statement is made to the effect that, "There was no procedure for taking an opinion from the Forest Department, as contemplated in the Government Resolution dated 22.02.2011."
5. The Registry is directed to issue Show Cause Notice returnable on 18.09.2013, as to why contempt proceeding should not be taken against this deponent for having made statement in the affidavit on oath, which is not borne out from the record.
6. In the meantime, respondent no.2, in particular, is directed to see that excavation of sand is stopped with immediate effect in the area and compliance report be made to this Court by Tuesday, the 10th September 2013. Page 12 of 86
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7. A copy of this order be made available to learned advocate Mr.V.M. Pancholi for the appellant for direct service. A copy of order of this order be also made available to learned AGP Mr.Rashesh Rindani for its onward communication for compliance. It will be open for the learned advocate for the appellant to serve this order by Speed Post/ Registered Post AD in addition to regular mode of service."
(emphasis supplied) 2.3 The Court then passed order on 19.09.2013, which reads as under:-
"1. Pursuant to discussion which took place yesterday, Collector, Gandhinagar is present before the Court.
2. Learned AGP, Mr.Rindani, apprises the Court of the receipt of information from the Forest Department in the matter as well as he wants time to enable the Collector to pass necessary orders in the matter in light of the information which has come to his notice.
3. Taking into consideration the nature of irregularities which has come to the notice of this Court like the excavation is going on contrary to policy of the Government and contrary to keeping in mind the aspect of protection of environment and permitting the excavation of sand.
4. Learned AGP is directed to place on record the details of the permitted excavation not only in this district but other districts of the Page 13 of 86 C/LPA/824/2013 JUDGMENT State."
(emphasis supplied) 2.4 Pursuant to this order, excavation was stopped even in the matter of the petitioners of SCA No.13910 of 2012. When that fact was brought to the notice of the learned Single Judge, the learned Single Judge passed an order on 14.10.2013 in the SCA that the same may be heard along with LPA No.824 of 2013. The operative part of the order reads as under:-
"Therefore, in that view of the matter, it is desirable that this matter may be placed before the same Hon'ble Division Bench (Coram: Ravi R. Tripathi & Mohinder Pal, JJ.) along with LPA No. 824 of 2013. The Registry is directed to place this matter before the Hon'ble Chief Justice for appropriate orders."
2.5 It is pursuant to the aforesaid order that the Hon'ble the Chief Justice passed order on 14.10.2013 for placing the SCA before the Court having determination of non-service LPA, to be listed with LPA No.824 of 2013.
2.6 Learned AGP Mr.Rindani submitted that pursuant to the order passed by this Court on 06.09.2013, the deponent filed affidavit affirmed on 17.09.2013, tendering unconditional apology for the lapses referred to in order dated 06.09.2013. Besides that, the deponent has also filed affidavit for compliance, affirmed on Page 14 of 86 C/LPA/824/2013 JUDGMENT 17.09.2013, mentioning in para-4 as under:-
"4. I respectfully say and submit that, thus the order dated 06.09.2013 passed by this Hon'ble Court directing the State Authorities to stop the excavation of sand is concerned, it is implemented." (emphasis supplied).
2.7 Though by order dated 19.09.2013, this Court directed learned AGP to place on record the details of permitted excavation not only in this district but other districts, by the next date to which the matter was adjourned, i.e. 23.09.2013, the information was placed by affidavit affirmed on 30.11.2013.
2.8 It is after information was placed by way of Annedxure-S to the affidavit affirmed on 30.11.2013, that it was noticed that there are 2887 leases within the periphery of 5 km of Sanctuary, National Park, Conservation Forest, Protected Forest and Reserved Forest.
2.9 At this juncture, it will be appropriate to make a special mention that this number of 2887 is only of the leases which are within the periphery of 5 km., but if the total number of leases is seen, it is much higher and even beyond the imagination. Out of these leaases also, 413 leases are within the Sanctuary, 118 leases within the National Park, 9 leases within Page 15 of 86 C/LPA/824/2013 JUDGMENT Conservation Forest, 165 leases within the Protected Forest and 2182 leases within the Reserved Forest. These figures do suggest insensitivity on the part of the Government officers in such an important matter. 2.10 In between, the matter was listed before the Cognate Bench as per the Roster and that Bench passed an order on 22.11.2013 as under:-
"Mr. Yatin Oza, learned senior counsel for the appellant states that earlier the Division Bench of this Court has passed general order and wanted the list of mining premises granted by the respondents without the E.I.A. Clearance. The respondent did not supply the list inspite of the judicial order though the Division Bench has directed to respondent to supply the list and file it and continued illegal mining without any E.I.A. Clearance. This amounts to playing with the Court for the reasons which are not bonafide.
In our opinion, this controversy can be resolved by the same Bench, who has passed the judicial order.
Therefore, list this matter before the Division Bench of Honourable Mr. Justice Ravi R. Tripathi and Honourable Mr. Justice Mohinder Pal on 25th November, 2013 after obtaining necessary nomination from Honourable the Chief Justice."
2.11 It is thereafter that the matter is listed Page 16 of 86 C/LPA/824/2013 JUDGMENT before this Court.
2.12 The matter once again taken up for consideration by this Bench and on 03.12.2013, the Court was required to pass the following order:-
"It is good that learned Assistant Government Pleader Mr.Rashesh Rindani is able to trace Affidavit in Reply to be filed on behalf of respondents no.1 and 3, in the Office of the learned Government Pleader, affirmed on 30.11.2013. This happened only when the Court inquired about the same on 03.12.2013. Learned Assistant Government Pleader Mr.Rashesh Rindani tenders the said affidavit. The same is taken on record.
2. On a request made by learned senior advocate Mr.Yatin N. Oza the matter is adjourned to 04.12.2013."
3. At this juncture, the Court requested learned Senior Advocate Mr.Oza to address the Court on EIA clearance aspect and other aspects involved in the matter without confining his services only to the petitioners of SCA No.13910 of 2012. Learned Senior Advocate assisted the Court in this matter.
4. Learned Senior Advocate invited attention of the Court to the order passed by the National Green Tribunal Principal, New Delhi in MA No.671 of 2013 and other Mas in OA No.171 of 2013 dated 26.09.2013. Learned Page 17 of 86 C/LPA/824/2013 JUDGMENT Senior Advocate for the petitioner invited attention of the Court to the relevant part of the order at page No.18, which reads as under:-
"We make it absolutely clear that our Order dated 05th August, 2013 which bans removal of sand even from the lease area without permission or grant of permission by MoEF /SEIAA would continue to be in force till further Orders. Before we part from this file we must notice that MoEF which also is the Authority to notify SEIAA needs to take effective steps to ensure that the Applications for grant of EC received in various part of the country should be considered with utmost expeditiousness to avoid any of its adverse effects on economy and development of the country at large. Furthermore, it is also expected not only of MoEF but even the State Governments to ensure that there is no revenue loss caused to the State on account of carrying on such activity clandestinely as it is entirely prohibited in terms of Notification, the Order of the Hon'ble Supreme Court of India and the Order of the Tribunal dated 5th August, 2013 read with 14th August 2013.
Accordingly, M.A. No.741 of 2013 stands disposed of with no order as to costs."
(emphasis supplied) 4.1 Learned Senior Advocate for the petitioner invited attention of the Court to the initial Page 18 of 86 C/LPA/824/2013 JUDGMENT notification issued by MoEF dated 27.01.1994 and submitted that by the said notification, mining activity was regulated. Learned Senior Advocate for the petitioner invited attention of the Court to Schedule-1 to the said notification, of which Item No.20 pertains to, "Mining projects (major minerals) with leases more than 5 hectares". Learned Senior Advocate for the petitioner submitted that thus, the notification of the year 1994 only provided for mining projects pertaining to major minerals and the area of which was more than 5 hectares. So far as sand is concerned, the same was considered to be minor mineral except it is used in some specified purposes like, (1) purpose of refractory and manufacture of ceramic, (2) metallurgical purposes, (3) optical purposes, (4) purposes of stowing in coal mines, (5) for manufacture of silvicrete cement, (6) manufacture of sodium silicate and (7) for manufacture of pottery and glass and therefore, MoEF came out with another notification dated 14.09.2006. Learned Senior Advocate for the petitioner submitted that this notification was issued by MoEF after a detailed exercise of getting the subject matter studied by Experts, drawing draft notification, inviting objections on that draft notification and thereafter, this notification was given shape to. Learned Senior Advocate for the petitioner then invited attention of the Court to Clause-2 of the Page 19 of 86 C/LPA/824/2013 JUDGMENT said notification, which pertains to "Requirement of prior environmental clearance (EC)". Learned Senior Advocate for the petitioner submitted that MoEF deemed it proper to provide as under:-
"The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters failing under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land is started on the project or activity:"
4.2 In this regard, learned Senior Advocate for the petitioner invited attention of the Court to the Schedule to the aforesaid notification. Item No.1(a) of the Schedule pertains to 'Mining of minerals', wherein it is provided that if the mining lease area is more than 50 hectares, the authority will be Central Government-MoEF and if the mining lease area is more than 5 hectares, but less than 50 hectares, the authority will be SEIAA.
Learned Senior Advocate for the petitioner submitted that the area below 5 hectares was not specifically mentioned, which was mis-construed to mean that no environmental Page 20 of 86 C/LPA/824/2013 JUDGMENT clearance is required from any authority and that is why when the matter came up before the Hon'ble the Apex Court in the matter of Deepak Kumar & Ors. Vs. State of Haryana & Ors., reported in (2012) 4 SCC 629, the Hon'ble the Apex Court recorded in paras-3 and 4 as under:-
"3. When the matter came up for hearing on 25.11.2011, we passed an order directing the CEC to make a local inspection with intimation to MoEF, State of U.P., Rajasthan and Haryana with regard to the alleged illegal mining going on in the States of Uttar Pradesh, Rajasthan and also with regard to the areas identified for mining in the State of Haryana and submit a report. We also directed the CEC to examine whether there has been an attempt to flout EIA Notification dated 14.9.2006 by breaking the homogeneous area into pieces of less than 5 hectares. CEC was also directed to examine whether the activities going on in that area have any adverse environment impact.
4. CEC, in response to our order, submitted a detailed report on 4.1.2012. However, the report is silent with regard to the disturbing trend of serious illegal and unrestricted upstream, in-stream and flood plain sand mining activities and the prevailing degree of degradation of the sites and the environment, especially on the river beds mentioned earlier. Report of CEC however states that the auction notice also Page 21 of 86 C/LPA/824/2013 JUDGMENT refer to mining leases of less than 5 hectares and hence no environmental clearance need be obtained as per the MoEF notification dated 14.9.2006. No light is also thrown on the question whether there has been, in fact, an attempt to flout the notification dated 14.9.2006 by breaking the homogeneous area into pieces of less than 5 hectares and the possible environment or ecological impact on quarrying of minor minerals.
(emphasis supplied) 4.3 The Hon'ble the Apex Court was pleased to observe in para-11, 14 and 20 as under:-
"11 We find that it is without conducting any study on the possible environment impact on/in the river beds and elsewhere the auction notices have been issued. We are of the considered view that when we are faced with a situation where extraction of alluvial material within or near a river bed has an impact on the rivers physical habitat characteristics, like river stability, flood risk, environment degradation, loss of habitat, decline in biodiversity, it is not an answer to say that the extraction is in blocks of less than 5 hectares, separated by 1 kilometre, because their collective impact may be significant, hence the necessity of a proper environment assessment plan.
14. Government of India was receiving various reports regarding the adverse impacts Page 22 of 86 C/LPA/824/2013 JUDGMENT on riverbeds and groundwater due to quarrying/mining of minerals. The Mines and Minerals (Development & Regulation) Act 1957 empowers the State Governments to make rules in respect of minor minerals.
It was noticed that proposals for mining of major minerals typically undergo environment impact assessment and environment clearance procedure, but due attention has not been given to environment aspects of mining of minor minerals. environment Impact Assessment Notification of 1994 did not apply to the
mining of minor minerals, noticing that minor minerals were brought under the ambit of the environment Impact Assessment Notification of 2006 and as per the said notification mining of minerals with a lease area of 5 hectares and above require prior environmental clearance.
20. The report clearly indicates that operation of mines of minor minerals needs to be subjected to strict regulatory parameters as that of mines of major minerals. It was also felt necessary to have a re-look to the definition of "minor" minerals per se. The necessity of the preparation of "comprehensive mines plan" for contiguous stretches of mineral deposits by the respective State Governments may also be encouraged and the same be suitably incorporated in the Mineral Concession Rules, 1960 by the Ministry of Mines."
4.4 Taking into consideration all relevant aspects, the Hon'ble the Apex Court passed the final order and Page 23 of 86 C/LPA/824/2013 JUDGMENT observed in para-29 as under:-
"29. We, in the meanwhile, order that leases of minor mineral including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from the MoEF. Ordered accordingly." (emphasis supplied).
4.5 Learned Senior Advocate for the petitioner very vehemently submitted that after this pronouncement, it was the bounden duty of the State to see that not only no new lease is granted without getting environmental clearance, even renewal, may be of less than 5 hectares, could not have been granted by the State Government without insisting for environmental clearance. Learned Senior Advocate for the petitioner submitted that it is this aspect of the matter which is required to be considered by this Court coupled with the fact that though subsequently there is a specific direction even by the National Green Tribunal, the same is observed more in breach rather than in compliance.
4.6 Learned Senior Advocate for the petitioner invited attention of the Court to the order passed by the National Green Tribunal, Principal Bench, New Delhi in Original Application No.171 of 2013 dated 05.08.2013, operative part of which reads as under:- Page 24 of 86
C/LPA/824/2013 JUDGMENT "Notice returnable on 14th August, 2013. In the meantime, we restrain any person, company, authority to carry out any mining activity or removal of sand, from river beds anywhere in the country without obtaining environmental clearance from MoEF/SEIAA and license from the competent authorities. All the Deputy Commissioners, Superintendent of Police and Mining Authorities of all the respective States are directed to ensure compliance of these directions."
(emphasis supplied) 4.7 Learned Senior Advocate for the petitioner then invited attention of the Court to order dated 14.08.2013, when the National Green Tribunal reiterated that:-
"After hearing the Applicant we also prohibit illegal and unauthorized sand and minerals mining without leave of MoEF /SIEAA on the beaches or on other coastal areas."
4.8 The matter then came up for consideration on 29.08.2013, when the National Green Tribunal was pleased observe as under:-
"We further direct the State of Uttar Pradesh and all States to formulate a uniform policy for checking illegal and indiscriminate mining and sand removal from river beds in the entire Country. The assistance of Ministry of Environment and Forests (MoEF) in this regard Page 25 of 86 C/LPA/824/2013 JUDGMENT would be very material. Resultantly, we direct the MoEF to put up a comprehensive guideline for preventing and controlling illegal and indiscriminate sand mining from the river beds and will initiate such steps, such as patrolling, primarily to prevent and control illegal and indiscriminate sand mining form the river beds particularly at night hours."
(emphasis supplied) 4.9 The National Green Tribunal also observed that:-
"We further direct that no mining activity shall be carried out in any part of the country without specific leave and permission from MoEF, SIEAA or the Competent Authority provided under the law."
4.10 Learned Senior Advocate for the petitioner submitted that any breach of the aforesaid directions issued by the National Green Tribunal is required to be viewed very seriously. Learned Senior Advocate for the petitioner submitted that environment is a matter of concerned not only of the present generation but more for coming generation and thinkers are rightly saying that serious thought is required to be given to a very important question as to in what position we are going to give this planet to our successors-coming generation.
Any irreparable loss to the environment is going to make their lives miserable and that is why all concerned, more Page 26 of 86 C/LPA/824/2013 JUDGMENT particularly persons who are in control of the affairs, may be in the form of giving permission for mining, have to be careful in discharging their duties. Learned Senior Advocate for the petitioner emphatically submitted that in the State of Gujarat two important aspects are required to be taken note of, viz. (1) The Government awards leases without resorting to auction and (2) under one excuse or the other, the Government avoids insisting for environmental clearance.
4.11 Learned Senior Advocate for the petitioner submitted that in fact, after the Hon'ble the Apex Court pronounced on 27.02.2012 that, "leases of minor mineral including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from the MoEF", it was the bounden duty of the State to see that neither new lease is granted nor any renewal is granted to any person for mining, even for minor mineral. Learned Senior Advocate for the petitioner submitted that it is not debatable that 'sand excavation is equally hazardous and hazardous for various reasons which are taken note of by the Hon'ble the Apex Court while issuing the aforesaid direction in the case of Deepak Kumar (supra). Learned Senior Advocate for the petitioner submitted that vested interests always try to find a way out, but then it is Page 27 of 86 C/LPA/824/2013 JUDGMENT for the authorities to see that not only law is enforced religiously but proper care of the environment is taken. This is minimum of what is expected from the Government officers who are assigned this duty.
4.12 Learned Senior Advocate for the petitioner then invited attention of the Court to the order of the National Green Tribunal dated 26.09.2013. Learned Senior Advocate for the petitioner submitted that the entire order may be required to be read to bring home the submission made on behalf of the Government that, 'earlier orders were revoked or direction were given a go-bye, is not correct'. The order reads as under:-
"This is an Application filed under Section 14, 15 (b) & (c) read with Section 18(1) & (2) of the National Green Tribunal Act, 2010 (for short 'NGT Act') for modification/clarification of our Order dated 5th August, 2013.
(emphasis supplied) 4.13 Learned Senior Advocate for the petitioner submitted that there is always a tendency on the part of the Government officers of passing buck, which is noted by the National Green Tribunal in the following words:-
"..... Learned counsel appearing for MoEF has stated that after issuance of the Notification dated 9th September, 2013 by MoEF, it is for SEIAA to entertain the Application of the Page 28 of 86 C/LPA/824/2013 JUDGMENT Applicant and consider the same in accordance with law."
First and foremost, we must clarify the misgiving or misunderstanding ruling at large that the Tribunal has totally banned mining of minor mineral (Sand) in the entire country vide its Order dated 5th August, 2013. It is necessary to place the correct position of the law on record before we venture into dealing with the Application of the Applicant i.e. M.A. No. 741 of 2013.
In exercise of its power under sub-Section 1 and Clause 5 of sub-Section 2 of Section 3 of the environment (Protection) Act, 1986 read with Clause (d) of sub-Rule of Rule 5 of the environment (Protection) Rules, 1986, the MoEF issued a Notification being environmental clearance Regulations 2006, superseding previous Notifications. This Notification is intended to provide for protection to environment concerns by grant/refusal of EC's to the various projects which have been referred to in this Notification. In other words, any person desirous of carrying on any industrial or other activity or any project mentioned in the Schedule of the Notification of 2006 is required to mandatorily obtain EC either from MoEF or SEIAA depending upon the category under which such project activity falls....." (emphasis supplied).
4.14 The Tribunal has then, after quoting the relevant part of the Schedule, observed as under:- Page 29 of 86
C/LPA/824/2013 JUDGMENT "On the bare reading of the above, it is clear that the Projects relating to mining of minor minerals (sand) where the mining area was less than 5 hectares were not covered by this Notification.
This was a serious lacuna in law leading to a practice being adopted all over the country to split up the entire area into smaller portions to avoid recourse to environment law. With the intention to circumvent the rigour of the Notification, the persons involved in the mining activity were getting leases of areas of less than 5 hectares so as not to require EC by MoEF/SEIAA. Persons of the same family, even different firms, putting together, would acquire huge areas, but create leases of portions there each less than 5 hectares in names of different individuals to ensure that no occasion arises for obtaining EC by taking undue advantage of the exception carved out in the Notification itself. It is on mining the Government-Central/State is expected to get royalty. Huge mining activity was being carried on in this manner. Thus, not only resulting in non-compliance of the environment norms as framed by the legislators but even losing genuine payment of royalty due to the Central/State Authorities. According to the Applicant, he relies on the reports where it is stated that the sand business in Haryana alone is Rs. 10 crores, in Punjab it is estimated Rs. 2 crores a day, and in Orissa it is around Rs. 15,000 crores. This is an indicator of what is Page 30 of 86 C/LPA/824/2013 JUDGMENT the extent of mining activity and the money such Government would be entitled to recover as its royalty in accordance with law.
This matter came up for consideration before the Hon'ble Supreme Court of India in the case of Deepak Kumar Vs. State of Haryana, reported in 2012(4)SCC629. The Hon'ble Supreme Court after considering various aspects and the recommendations of the Committee appointed by them - vide paragraph 22 of the Judgment, observed that minimum size of the land lease should be 5 hectares and mining lease should be for 5 years. In order to avoid mischief that was being played in terms of Notification of 2006, the Hon'ble Supreme Court of India at paragraph 29 directed as follows:
"29. We, in the meanwhile, order that leases of minor minerals including their renewal for an area of less than five hectares be granted by the States/ Union Territories only after getting environmental clearance from MoEF. Ordered accordingly."
The above paragraph mandated that even mining activity carried on in the area less than 5 hectares would require environmental clearance from the MoEF/SEIAA, as the case may be. Thus, the legislative enactments and the judicial pronouncement of the highest court of the land made it mandatory for all concerned carrying on the activity of mining minor mineral (sand) to take EC either from MoEF or SEIAA as a Page 31 of 86 C/LPA/824/2013 JUDGMENT condition precedent to operation of such business."
(emphasis supplied) 4.15 The National Green Tribunal, after taking into consideration the aforesaid aspect, issued notice to all the respondents by Registered Post /acknowledgment due and Dasti as well as e-mail. The National Green Tribunal clarified by saying that:-
"Therefore, it is evident that the Tribunal passed an Order only to implement the intent of the legislature, the dictum of the Supreme Court and the law presently in force. It was not an order dehors the existing law but was an order that was passed primarily to ensure strict compliance of the law of the land."
4.16 The National Green Tribunal then referred to M.A. No.741 of 2013, saying that the same is moved for modification of that order (dated 05.08.2013). The National Green Tribunal then clarified by saying that:-
"We make it absolutely clear that our Order dated 05th August, 2013 which bans removal of sand even from the lease area without permission or grant of permission by MoEF /SEIAA would continue to be in force till further Orders....."
4.17 The National Green Tribunal then referred to M.A. No.738 of 2013 filed by the applicant seeking relief Page 32 of 86 C/LPA/824/2013 JUDGMENT against the State of Gujarat by saying that:-
"In this Application the Applicant primarily prays that the State of Gujarat has entered into the contracts for carrying on of mining of minor mineral (extraction of sand) even in the areas which are within 3 meters from the water level, which is impermissible. It is the contention that no clearance of MoEF/SEIAA has been sought before entering into these contracts.
Learned counsel appearing for the State of Gujarat submits that the State itself has already banned the mining activity under these 3 contracts and further makes a statement that no mining activity would be permitted to be carried on without taking EC either from MoEF/SEIAA, irrespective of the size, as the case may be."
(emphasis supplied) 4.18 Learned Senior Advocate for the petitioner submitted that here is the catch. The relief prayed for in the said application was:-
"(II) Direct the Government of Gujarat to prohibit with immediate effect any mining, riverbed or otherwise, of minor minerals, including sand, in any manner without following the procedure established by law, including the environmental clearance Notification dated 14.9.2006 and the directions issued by the Hon'ble Supreme Court in Deepak Kumar v. State Page 33 of 86 C/LPA/824/2013 JUDGMENT of Haryana, (2012) 4 SCC 629;
(III) Direct the Government of Gujarat to immediately restrict riverbed mining to depth of 3m/water level, which is less;
(IV) Declare the contracts awarded by the Government of Gujarat for carrying out quarrying operation of ordinary sand as illegal, void ab initio and non est in the eyes of law as being violative of the judgment of the Hon'ble Supreme Court in Deepak Kumar v. State of Haryana, (2012) 4 SCC 629;"
4.19 Learned Senior Advocate for the petitioner submitted that the Counsel appearing for the State Government made a statement that, "the State itself has already banned the mining activity under these 3 contracts" and then made a statement that, "no mining activity would be permitted to be carried on without taking EC either from MoEF/SEIAA, irrespective of the size, as the case may be". But then, willfully kept this later part as vague as possible on the point, whether it will be applicable to those three contracts only or the same will be implemented qua all leases operating in the entire State. The resultant effect is that, 'this later statement is not implemented at all'. Even today, mining activity is going on in the entire State merrily.
Learned Senior Advocate for the petitioner submitted that after having filed an affidavit affirmed on 30.11.2013, Page 34 of 86 C/LPA/824/2013 JUDGMENT whereby a list is placed on record consisting of 'the leases within periphery of 5 km. of Sanctuary, National Park, Conservation Forest, Protected Forest and Reserved Forest'. The list contains information of 2887 leases. The State Government has not come forward to make a statement that, it has implemented the statement made before the National Green Tribunal, i.e. "no mining activity would be permitted to be carried on without taking EC either from MoEF/SEIAA, irrespective of the size, as the case may be". Learned Senior Advocate for the petitioner submitted that this is nothing but a clear case of contempt of Court in view of the direction issued by the Hon'ble the Apex Court in para-29 in the case of Deepak Kumar (supra), whereby the Hon'ble the Apex Court directed that, "leases of minor minerals including their renewal for an area of less than five hectares be granted by the States/ Union Territories only after getting environmental clearance from MoEF". (emphasis supplied). 4.20 Learned Senior Advocate for the petitioner submitted that though learned Advocate General is appearing in the matter, the State Government is not coming out with a statement that, 'the direction issued by the Hon'ble the Apex Court in the matter of Deepak Kumar (supra) is complied with or that the statement made before the National Green Tribunal on 26.09.2013 is Page 35 of 86 C/LPA/824/2013 JUDGMENT implemented'.
4.21 Learned Senior Advocate for the petitioner submitted that in fact, this inaction on the part of the State Government is causing not only heart burning but also causing serious enmity between the two groups of people, viz. (1) those who are having implied consent /permission (for the reasons which are obvious but not spelt out) from the State Government to continue their mining and (2) who are not allowed to continue mining. 4.22 Learned Senior Advocate for the petitioner submitted that it must come on record that the learned Senior Advocate is not for a minute suggesting that the petitioners for whom he is appearing in SCA No.13910 of 2012 should be allowed mining in violation of either the direction of the Hon'ble the Apex Court or the statement made by the Counsel for the State Government before the National Green Tribunal. Learned Senior Advocate for the petitioner submitted that it must be made clear that the State will enforce the law equally and will not accord discriminatory treatment to similarly situated persons. Learned Senior Advocate for the petitioner submitted that in the case of the petitioners of SCA No.13910 of 2012, though the lease was operative (continue), the petitioners were not allowed excavation of sand on the ground that they do not have 'No Objection Certificate' Page 36 of 86 C/LPA/824/2013 JUDGMENT from the Forest Department.
4.23 Learned Senior Advocate for the petitioner submitted that now that he is canvasing a larger issue of 'protection of environment', what is required to be seen by this Court is whether in all cases, wherein excavation is permitted by the State Government, such 'No Objection Certificate from the Forest Department' is granted and beside that whether 'Environment Clearance Certificate' is granted by MoEF, as directed by the Hon'ble the Apex Court in the matter of Deepak Kumar (supra). Learned Senior Advocate for the petitioner submitted that he is at loss as to how come the State Government can permit any excavation to continue after mandatory direction of the Hon'ble the apex Court on 27.02.2012 and a statement before the National Green Tribunal, followed by order of National Green Tribunal dated 26.09.2013. 4.24 Learned Senior Advocate for the petitioner invited attention of the Court to a decision of the Hon'ble the Apex Court in the matter of Union of India & Ors. Vs. Vinod Kumar & Ors., reported in (1996) 10 SCC 78. Learned Senior Advocate for the petitioner invited attention of the Court to para-4 of the judgment to bring home the submission made by him that, 'once there is a requirement of obtaining prior approval', 'it has to be obtained prior in point of time' and approval obtained Page 37 of 86 C/LPA/824/2013 JUDGMENT subsequently cannot even contended to be equivalent to 'prior approval'. The Hon'ble the Apex Court has quoted Section 5-D of the Employees' Provident Fund & Misc. Provisions Act, 1952, which provides for, 'method of recruitment' as under:-
"5-D. 7(a) The method of recruitment, salary and allowances, discipline and other conditions of service of the Additional Central Provident Fund Commissioner, Deputy Provident, Fund Commissioner, Regional Provident Fund Commissioner, Assistant Provident Fund Commissioner and other officers and employees of the Central Board shall be such as may be specified by the Central Board in accordance with the Rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay.
Provided that where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government."
Under the proviso, where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters enumerated above it is mandatory that it should obtain prior approval of the Central Government. Admittedly, prior approval was not obtained. On the other Page 38 of 86 C/LPA/824/2013 JUDGMENT hand, ex post facto approval was obtained but in the teeth of the language of the proviso ex post facto approval is not an approval in the eye of law. (emphasis supplied).
The Hon'ble the Apex Court was therefore pleased to hold that:-
"Under these circumstances, the Tribunal had rightly held that the approval was not valid in law and the matter was kept at large and directed the appellant to issue notification afresh for recruitment in accordance with rules."
4.25 Learned Senior Advocate for the petitioner submitted that in the present case also, when the Hon'ble the Apex Court directed that, "no mining activity would be permitted to be carried on without taking EC either from MoEF/SEIAA, irrespective of the size, as the case may be", the only and only meaning which can be assigned to this language is that, 'obtaining of environmental clearance before any mining is permitted is a must'. In this regard, learned Senior Advocate for the petitioner again invited attention of the Court to Clause-2 of notification dated 14.09.2006 issued by MoEF, wherein it is stated that, "The following projects or activities shall require prior environmental clearance from the concerned regulatory authority.....". Learned Senior Advocate for the petitioner submitted that the phrase, Page 39 of 86 C/LPA/824/2013 JUDGMENT 'environmental clearance' is not capable of giving any other meaning than the meaning assigned by the Hon'ble the Apex Court to the phrase, 'shall obtain prior approval of the Central Government', in the judgment of Union of India & Ors. Vs. Vinod Kumar (supra). 4.26 Learned Senior Advocate for the petitioner next relied upon a decision of the Hon'ble the Apex Court in the matter of Ashok Kumar Das & Ors. Vs. University of Burdwan & Ors., reported in (2010) 3 SCC 616. Learned Senior Advocate for the petitioner relied upon the observations made by the Hon'ble the Apex Court in paras 12 to 15. In para-15, the Hon'ble the Apex Court, after referring to the earlier judgments, observed as under:-
"15. The words used in Section 21 (xiii) are not "with the permission of the State Government" nor "with the approval of the State Government", but "with the approval of the State Government". If the words used were "with the permission of the State Government", then without the permission of the State Government the Executive Council of the University could not determine the terms and conditions of service of non-teaching staff. Similarly, if the words used were "with the prior approval of the State Government", the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff without first obtaining the approval of Page 40 of 86 C/LPA/824/2013 JUDGMENT the State Government. But since the words used are "with the approval of the State Government", the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise." (emphasis supplied).
4.27 Learned Senior Advocate for the petitioner, in support of his submission that when a particular Act is required to be done in a particular manner, it has to be done in that particular manner and not in any other manner, relied upon a decision of the Hon'ble the Apex Court in the matter of Babu Verghese & Ors. Vs. Bar Council of Kerala & Ors., reported in (1999) 3 SCC 422. Learned Senior Advocate for the petitioner invited attention of the Court to paras 31 and 32 of the said judgment. For ready reference, paras-31 and 32 are reproduced hereunder:-
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor vs. Taylor (1875) 1 Page 41 of 86 C/LPA/824/2013 JUDGMENT Ch.D 426 which was followed by Lord Roche in Nazir Ahmad vs. King Emperor 63 Indian Appeals 372 = AIR 1936 PC 253 who stated as under:
"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh & Anr. vs. State of Vindhya Pradesh 1954 SCR 1098 = AIR 1954 SC 322 and again in Deep Chand vs. State of Rajasthan 1962(1) SCR 662 = AIR 1961 SC 1527. These cases were considered by a Three- Judge Bench of this Court in State of Uttar Pradesh vs. Singhara Singh & Ors. AIR 1964 SC 358 = (1964) 1 SCWR 57 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."
4.28 Learned Senior Advocate for the petitioner submitted that the settled position of law is that the provisions of law are to be interpreted giving 'literal meaning' to the provisions, unless it is otherwise so required. In this regard, he relied upon a decision of the Hon'ble the Apex Court in the matter of Raghunath Rai Bareja & Anr. Vs. Punjab National Bank & Ors., reported in (2007) 2 SCC 230. Learned Senior Advocate for the petitioner invited attention of the Court to Head Note-F, Page 42 of 86 C/LPA/824/2013 JUDGMENT wherein, it is stated that:-
"The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language. The literal rule of interpretation is not only followed by judges and lawyers, but it is also followed by the layman in his ordinary life.
The meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean.
The first and foremost principle of interpretation of a statute in every system or interpretation e.g. the mischief rule, purposive interpretation, etc. can only be resorted to when the plain words of a statute are ambiguous or read to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule. Even if the literal interpretation results in hardship or inconvenience, it has to be followed."
(emphasis supplied) Learned Senior Advocate for the petitioner invited attention of the Court to paras-43 to 49 of the judgment. This Court is of the opinion that reproduction of these paras will be of good assistance. Paras-43 to Page 43 of 86 C/LPA/824/2013 JUDGMENT 49 read as under:-
"43. In other words, once we depart from the literal rule, then any number of interpretations can be put to a statutory provision, each Judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed (see G.P. Singh's Principles of Statutory Interpretations, 9th Edn. pp 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection.
44. As the Privy Council observed (per Viscount Simonds, L.C.):
"Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used."(see Emperor v. Benoarilal Sarma, AIR 1945 PC 48, pg. 53).
45. As observed by this Court in CIT vs. Keshab Chandra Mandal, AIR 1950 SC 265:
"Hardship or inconvenience cannot alter the meaning of the language employed by Page 44 of 86 C/LPA/824/2013 JUDGMENT the Legislature if such meaning is clear on the face of the statute".
46. The rules of interpretation other than the literal rule would come into play only if there is any doubt with regard to the express language used or if the plain meaning would lead to an absurdity. Where the words are unequivocal, there is no scope for importing any rule of interpretation vide Pandian Chemicals Ltd. vs. C.I.T. 2003(5) SCC 590.
47. It is only where the provisions of a statute are ambiguous that the Court can depart from a literal or strict construction vide Narsiruddin vs. Sita Ram Agarwal AIR 2003 SC 1543. Where the words of a statute are plain and unambiguous effect must be given to them vide Bhaiji vs. Sub-Divisional Officer, Thandla 2003(1) SCC 692.
48. No doubt in some exceptional cases departure can be made from the literal rule of the interpretation, e.g. by adopting a purposive construction, Heydon's mischief rule, etc. but that should only be done in very exceptional cases. Ordinarily it is not proper for the Court to depart from the literal rule as that would really be amending the law in the garb of interpretation, which is not permissible vide J.P. Bansal vs. State of Rajasthan & Anr. AIR 2003 SC 1405, State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349 etc.. It is for the legislature to amend the law and not the Court vide State of Page 45 of 86 C/LPA/824/2013 JUDGMENT Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349. In Jinia Keotin vs. K.S. Manjhi, 2003 (1) SCC 730, this Court observed that "The Court cannot legislate under the grab of interpretation".Hence there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron.
49. In Shiv Shakti Co-operative Housing Society vs. Swaraj Developers AIR 2003 SC 2434, this Court observed:
"19. It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent."
4.29 Learned Senior Advocate for the petitioner, in support of his submission that violation of law must not be tolerated, relied upon a decision of the Hon'ble the Apex Court in the matter of Indian Council for Enviro-
Legal Action Vs. Union of India & Ors., reported in (1996) 5 SCC 281. Learned Senior Advocate for the petitioner invited attention of the Court to pars-26, which reads as under:-
"26. Enactment of a law, but tolerating its infringement, is worse than not enacting a law Page 46 of 86 C/LPA/824/2013 JUDGMENT at all. The continued infringement of law, over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society. Law should not only be meant for the law- abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that Parliament enacted the anti- pollution laws, namely, the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibit certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a lawless society. Violation of antipollution laws not only adversely affects the existing Page 47 of 86 C/LPA/824/2013 JUDGMENT quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations."
(emphasis supplied) 4.30 Learned Senior Advocate for the petitioner vehemently submitted that the Hon'ble the Apex Court has very seriously considered the problem of violation of law and that is why when the Hon'ble the Apex Court was considering the menace of illegal and unauthorized construction of building and other structures in different parts of the country, in the case of Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation & Ors., reported in (2013) 5 SCC 336 stated thus in Head Note-C:-
"Illegal and unauthorised constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorized constitutions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The failure of the Sate apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by Page 48 of 86 C/LPA/824/2013 JUDGMENT the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors. Therefore, there should be no judicial tolerance of illegal and unauthorized constructions by those who treat the law to be their subservient." (emphasis supplied).
4.31 Learned Senior Advocate for the petitioner invited attention of the Court to paras-8 and 9 of the judgment, which are reproduced for ready perusal:-
"8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-
storied structure raised by economically
affluent people. The failure of the State
apparatus to take prompt action to demolish
such illegal constructions has convinced
Page 49 of 86
C/LPA/824/2013 JUDGMENT
the citizens that planning laws are
enforced only against poor and all
compromises are made by the State machinery
when it is required to deal with those who
have money power or unholy nexus with the power corridors.
9. We have prefaced disposal of this appeal by taking cognizance of the precedents in which this Court held that there should be no judicial tolerance of illegal and unauthorized constructions by those who treat the law to be their sub-servient, but are happy to note that the functionaries and officers of Kolkata Municipal Corporation (for short, 'the Corporation') have been extremely vigilant and taken steps for enforcing the provisions of the Kolkata Municipal Corporation Act, 1980 (for short, 'the 1980 Act') and the rules framed thereunder for demolition of illegal construction raised by respondent No.7. This has given a ray of hope to the residents of Kolkata that there will be zero tolerance against illegal and unauthorised constructions and those indulging in such activities will not be spared."
4.32 Learned Senior Advocate for the petitioner then invited attention of the Court to a decision of Division Bench of this Court consisting of Hon'ble the Chief Justice Mr.Bhaskar Bhattacharya & Hon'ble Mr.Justice J.B.Pardiwala in Writ Petition (PIL) No.21 of 2013 and other matters dated 13.01.2014. Learned Senior Advocate Page 50 of 86 C/LPA/824/2013 JUDGMENT for the petitioner invited attention of the Court to various paras of the said judgment and submitted that aforesaid aspects are considered by the Division Bench while examining the question of grant of relief as prayed for in Writ Petition (PIL) No.21 of 2013. The relief sought for are set out in the opening para of the judgment, which reads as under:-
"(A) To direct respondents and respondent nos.10 to 21 in particular to immediately stop further development of the units and business operations in particular from their respective units situated within respondent no.8 Mundra Port and Special Economic Zone till environmental clearance is granted by respondent Ministry of Environment and Forests in favour of respondent no.8 Mundra Port and Special Economic Zone;
(B) To direct respondents and respondent nos.10 to 21 in particular to completely dismantle and demolish the construction put up on their respective units and remove all and entire development upon the same to the extent of status quo ante;
(BB) To direct respondent nos.1,2,3 and 4 and respondent no.5 to take over complete control, administration and supervision of respondent no.8 Mundra Port and Special Economic Zone, looking to the grave violations of environment Impact Assessment Notification, 2006;Page 51 of 86
C/LPA/824/2013 JUDGMENT (C) To direct the respondent nos.1 and 2 to take all civil, criminal and corrective action against respondent nos.8, 10 to 21 for violating environment Impact Assessment Notification, 2006;
(CC) To direct respondent nos.1, 3 and 4 to consider permanently refusing grant of environmental clearance to respondent no.8 Mundra Port and Special Economic Zone for grave violations of environment Impact Assessment Notification, 2006 in the context of subject matter of the present petition;
(D) To direct respondent nos.1 and 2 to constitute an independent team of expert to decide the extent of collusion and involvement of statutory, public and Government authorities in assisting respondent nos.8, 10 to 21 in violating the environment Impact Assessment Notification, 2006 and thereby develop the land in question and put up construction thereupon and be further pleased to direct taking of civil, criminal and departmental action against erring officers;
(E) To direct the respondents and particularly respondent nos.5, 7 and 9 to prepare panchnama of the land allotted to respondent nos.10 to 21 and extent of development of the very land and construction thereupon so far put up by respondent nos.10 to 21 and place the same on record;
(F) During pendency and/or final disposal of the present petition be pleased to direct the Page 52 of 86 C/LPA/824/2013 JUDGMENT respondents and respondent nos.8, 10 to 21 in particular to immediately stop further development of the units and business operations from respective units and file an undertaking before this Hon'ble Court in this regard AND be further pleased to direct respondent no.5 Development Commissioner, Mundra Port and Special Economic Zone to ensure that no further development in the respective units take place and business operations are undertaken in any manner whatsoever;
(FF) During the pendency and/or final disposal of the present petition to direct respondent nos.1,2,3 and 4 and respondent no.5 to take over complete control, administration and supervision of respondent no.8 Mundra Port and Special Economic Zone, looking to the grave violations of environment Impact Assessment Notification, 2006;
(G) To award the costs of this petition;
(H) To pass such other and further prayer/s in the interest of justice be granted."
The Hon'ble the Division Bench, after having heard learned Counsel appearing for the parties and having gone through the material on record, formulated questions which fell for its consideration in both the petitions, are as under:-
"(1) Whether the Writ Petition (PIL) No.21 of 2013 filed by the residents of the village Page 53 of 86 C/LPA/824/2013 JUDGMENT deserves to be rejected on the ground of delay and laches;
(2) Whether the Writ Petition (PIL) No.21 of 2013 deserves to be rejected applying the doctrine of res judicata or constructive res judicata;
(3) Whether the Writ Petition (PIL) No.21 of 2013 should be rejected on the ground that the legality and validity of the deemed clearance of the SEZ and that of the decision of the EAC dated 4th-5th June 2012 recommending grant of environmental clearance has not been questioned and in the absence of such challenge thereto no relief could be granted in favour of the petitioners as prayed for in the Writ Petition (PIL) No.21 of 2013;
(4) Whether the Writ Petition (PIL) No.21 of 2013 should be rejected on the ground that there is an alternative remedy available to the petitioners before the National Green Tribunal constituted under the National Green Tribunal Act, 2010;
(5) Whether the decision rendered by this Court in the case of Ranubha Rajmalji Jadeja and others v. Union of India and others, Writ Petition (PIL) No.194 of 2011 decided on 9th May 2012, has any bearing on the issues involved in both the petitions herein; (6) Whether the commencement of construction by the respondent nos.10 to 21 in the SEZ prior to the grant of environmental clearance in favour Page 54 of 86 C/LPA/824/2013 JUDGMENT of the respondent no.8 MPSEZ could be termed as per se illegal, and if that be so, then whether such an illegality could be said to have been cured on the strength of the grant of deemed environmental clearance in favour of the respondent no.8 MPSEZ by a fiction of law; (7) Whether the respondent nos.10 to 21 as on today could be said to be lawfully operating their units within the SEZ;
(8) Whether the petitioners of Writ Petition (PIL) No.21 of 2013 are entitled to the reliefs prayed for in the petitions;
(9) Whether Alstom Bharat Forge Power Limited, the petitioner of Special Civil Application No.2621 of 2013, is entitled to a declaration that since APSEZ has obtained a deemed clearance under Clause 8(iii) of the EIA Notification, 2006, there is no impediment against it in continuing to establish their respective projects in the land situated in Mundra SEZ.
Learned Senior Advocate for the petitioner invited the attention of the Court to page No.85 of the judgment, wherein the Hon'ble the Division Bench entertained the petition by saying as under:-
"We are dealing with a very important issue of environment and the rights of the people who are likely to be affected and, therefore, in such circumstances, we do not deem fit to reject the petition on a plea of delay and Page 55 of 86 C/LPA/824/2013 JUDGMENT laches.
The Hon'ble the Division Bench then considered questions aforesaid in detail and considering the observations made by the Committee in its report, quoted paras-7.2 and 7.2.1 of the report to appreciate the submissions made on behalf of the respondents. The Hon'ble the Division Bench recorded its conclusion on page No.141 in the following terms:-
"We are afraid, we are not impressed by such submissions as it appears that the same has been canvassed as a last effort to salvage the situation. The observations made by one of us J.B.Pardiwala, J. that at the most the developer could have allotted the plots would not mean and could not have been construed by the respondents to convey that the allottees could develop the plots and put up construction on the same. That is not the substance of the judgment. What was sought to be conveyed was that at the most there could be allotment to a particular person interested to setup an industry in the SEZ. His Lordship Bhaskar Bhattacharya, CJ. clarified in no uncertain terms that so long the environmental clearance is not granted by the Central Government in favour of the MPSEZ for creation of infrastructural facilities on the land so allotted and consequent to such permission, such facilities have been actually created by the allottee, the later cannot lawfully lease out the right of enjoyment of the Page 56 of 86 C/LPA/824/2013 JUDGMENT infrastructural facilities to its lessees.
Learned Senior Advocate for the petitioner submitted that the Hon'ble the Division Bench was of the opinion that grant of environmental clearance is a condition precedent and until such environmental clearance was granted, any development of land or creation of infrastructural facilities on the land were unauthorized. Similarly, the Hon'ble the Division Bench on page No.147 of the judgment held that:-
"From the above, it could be said that if the initial action is illegal, that is, if the foundation goes then the superstructure would fall. In the present case also, once we hold that the construction in the absence of environmental clearance is absolutely illegal, then the same by itself would not get regularized with the aid of the deeming provision."
Learned Senior Advocate for the petitioner submitted that in the matter before the Hon'ble the Division Bench, the controversy revolved round phrase, 'deemed permission' and that is why, the Hon'ble the Division Bench was pleased to observe on page No.157 as under:-
"What could be deemed in our case is the grant of environmental clearance with prospective effect and it would be open thereafter to go Page 57 of 86 C/LPA/824/2013 JUDGMENT ahead with the developments in accordance with the Notification, 2006, but in any case, a deeming fiction cannot be applied retrospectively so as to submit that whatever illegality has been committed stands cured and rectified."
4.33 Learned Senior Advocate for the petitioner next invited attention of the Court to a latest order of the Hon'ble the Apex Court dated 06.01.2024 in the case of T.N.Godavarman Thirumulpad Vs. Union of India & Ors. in I.A. No.1868 and other I.As in Writ Petition (Civil) No.202 of 1995. Learned Senior Advocate for the petitioner invited attention of the Court to para-1, which reads as under:-
"1. In the case of Lafarge Umiam Mining Private Limited V. Union of India & Ors. [(2011) 7 SCC 338], this Court, while refusing to interfere with the decisions of the Ministry of Environment and Forests (MoEF) granting site clearance, EIA clearance read with revised environmental clearance and State I forest clearance to the mining project of Lafarge Umiam Mining Private Limited, land down some guidelines to be followed in future cases in Part-II of its order dated 06.07.2011. These guidelines have been stated in Para 122 of the said order and sub- para (i.1) of Para 122, this Court called upon the Central Government to appoint a National Regulator under Section 3(3) of the Environment (Protection) Act, 1986 Page 58 of 86 C/LPA/824/2013 JUDGMENT for appraising projects, enforcing environment conditions for approvals and to impose penalties on polluters. Despite the order dated 06.07.2011 of this Court, the Central Government did not appoint a National Regulator under Section 3(3) of the Environment (Protection) Act, 1986. On 09.09.2013, this Court therefore requested Mr.Mohan Parasaran, learned Solicitor General, to obtain instructions and apprise this Court as to when the direction of this Court will be complied with."
The Hon'ble the Apex Court, after considering the submissions made by the learned Solicitor General and considering its earlier order in the case of Lafarge Umiam Mining Pvt. Ltd., particularly para 122 of the order along with sub-paras (i.1), (i.2), (i.3), (i.4) and (i.5), finally observed in para-7 as under:-
"7. Hence, the present mechanism under the EIA Notification dated 14.09.2006, issued by the Government with regard to processing, appraisals and approval of the projects for environmental clearance is deficient in many respects and what is required is a Regulator at the national level having its offices in all the States which can carry out an independent, objective and transparent appraisal and approval of the projects for environmental clearances and which can also monitor the implementation of the conditions laid down in environmental clearances. The Regulator so Page 59 of 86 C/LPA/824/2013 JUDGMENT appointed under Section 3(3) of the Environment (Protection) Act, 1986 can exercise only such powers and functions of the Central Government under the Environment (Protection) Act as are entrusted to it and obviously cannot exercise the powers of the Central Government under Section 2 of the Forest (Conversation) Act, 1980, but while exercising such powers under the Environment Protection Act will ensure that the National Forest Policy, 1988 is duly implemented as held in the order dated 06.07.2011 of this Court in the case of Lafarge Umiam Mining Private Limited. Hence, we also do not find any force in the submission of Mr.Parasaran that as under Section 2 of the Forest (Conversation) Act, 1980 the Central Government alone is the Regulator, no one else can be appointed as a Regulator as directed in the case of Lafarge Umiam Mining Private Limited."
Learned Senior Advocate for the petitioner submitted that he is conscious of the fact that these are interim directions, but he made it clear that he is relying upon this order in support of the submission that it is 'right time' when the question of environment degradation is required to be taken very seriously and any agency which fails to discharge its duty is required to be geared up, motivated and instructed to discharge its duty effectively so that the problem of 'degradation of environment' does not become more grave than what it Page 60 of 86 C/LPA/824/2013 JUDGMENT has already become. Learned Senior Advocate for the petitioner submitted that the Hon'ble the Apex Court has granted time to the Central Government up to 31.03.2014 to see that 'Regulator' is appointed.
5. The matter was argued by the learned Advocate General on behalf of the State. Learned Advocate General Assisted the Court and made his submissions, with a note of caution that these submissions should not be construed to mean that the State is not sharing the anxiety on the part of the Court pertaining to the problem of degradation of environment. Learned Advocate General reiterated that the State is equally anxious to enforce the law on the point and will see to it that all necessary actions are taken for protection of environment. Learned Advocate General also made it clear that lapses, if any, in implementation of law is not on account of any willful disobedience on the part of the State Government. Learned Advocate General submitted that may be that every individual dealing with the problem may not be equally sensitized and therefore, may not be alive to the gravity of problem which may give an impression that there is some lethargy in the matter of implementation and enforcement of law. But then, he stated that, "I reiterate even at the cost of repetition that it is not the result of 'non-willingness' on the Page 61 of 86 C/LPA/824/2013 JUDGMENT part of the State in the matter of enforcement of law". The learned Advocate General submitted in no uncertain terms that the State is not taking this litigation as adversarial litigation and it ready to abide by all directions which may be issued by this Court and undertakes to enforce them in true spirit, including the directions of the Hon'ble the Apex Court in the matter of Deepak Kumar (supra) and the National Green Tribunal contained in its various orders.
6. To see that effective directions are issued to take care of the problem of degradation of environment in light of the submissions made by the Learned Senior Advocate for the petitioner, the Court asked learned Advocate General to furnish details of all existing leases in the State of Gujarat. The Court asked him to submit the details in a Tabular Statement containing various details like, name of the person /firm, area of lease, date of grant of lease for the first time, term of lease, when did the party apply for renewal, date of last renewal, period for which licence is renewed and other relevant information, if any, deemed proper by the State Government for consideration of this Court. Learned Advocate General was also requested to incorporate, while giving name of the person /firm, whether any blood relation of the person or the partner of the firm holds Page 62 of 86 C/LPA/824/2013 JUDGMENT any lease or leases, was having any lease or leases before the present lease.
13.02.2014
7. Learned AGP Mr.Rindani placed on record compilation consisting of about 1000 pages, which includes information of leases of not only of minor minerals but also of major minerals. Today, learned AGP filed further affidavit on behalf of the respondent State affirmed by one Shri Yogesh Bhalchandrabhai Raval, Geologist. Along with the affidavit, details of the leases granted for excavation of sand district-wise is also annexed.
8. Learned Advocate General reiterated that the State Government has taken the matter in right spirit and is keen on complying with the directions issued by the Hon'ble the Apex Court in the matter of Deepak Kumar (supra) and also the statement made before the National Green Tribunal.
8.1 Learned Advocate General submitted the important points in writing along with necessary notifications and the judgments, to which he wanted to invite the attention of the Court.
Page 63 of 86
C/LPA/824/2013 JUDGMENT 8.2 Learned Advocate General submitted that EIA notification dated 14.09.2006 issued by the Central
Government provided that, 'all mining leases having area between 5 hectares to 50 hectares require prior environmental clearance from SEIAA and all mining leases having area of 50 hectares or more required prior environmental clearance from MoEF'. 8.3 Learned Advocate General submitted that by circular dated 02.07.2007, the Central Government clarified that, 'all leases for mining projects which did not require environmental clearance under earlier EIA notification of 1994, i.e. mining projects relating to minor minerals would continue to operate without environmental clearance till the mining leases fall due for renewal, with a condition that there should be no increase in the lease area and/or there is no increase in production'.
8.4 Learned Advocate General submitted that it is thereafter that the Hon'ble the Apex Court rendered judgment in the matter of Deepak Kumar (supra), wherein the Hon'ble the Apex Court ordered that prior environmental clearance will be required even if the mining blocks are having an area up to 5 hectares. Learned Advocate General submitted that learned Senior Advocate for the petitioner has rightly invited attention Page 64 of 86 C/LPA/824/2013 JUDGMENT of the Court to para-29 of the said judgment. By virtue of the direction contained therein, it is obligatory on the part of the State Government to ask for environmental clearance from MoEF before granting lease or minor minerals including their renewal even for an area of less than 5 hectares.
8.5 Learned Advocate General then invited attention of the Court to the fact that it is after the aforesaid judgment [in the case of Deepak Kumar (supra)] an Office Memorandum dated 18.05.2012 is issued providing that, "all mining projects of minor minerals including their renewal, irrespective of the size of the lease would henceforth require prior environmental clearance". Learned Advocate General submitted that in view of this Office Memorandum, the State Government ought to have granted leases and/or renewal of leases, irrespective of the size of lease, only after insisting for prior environmental clearance.
8.6 Learned Advocate General then invited attention of the Court to an order passed by the National Green Tribunal on 05.08.2013, whereby the National Green Tribunal directed that, "..... no person, company, authority to carry out any mining activity or removal of sand, from river beds, anywhere in the country without obtaining environmental clearance from MoEF/SEIAA.....". Page 65 of 86
C/LPA/824/2013 JUDGMENT Learned Advocate General submitted that the National
Green Tribunal itself considered the vast impact of this direction in its order dated 26.09.2013 and observed as under:-
"First and foremost, we must clarify the misgiving or misunderstanding ruling at large that the Tribunal has totally banned mining of minor mineral (Sand) in the entire country vide its Order dated 5th August, 2013. It is necessary to place the correct position of the law on record before we venture into dealing with the Application of the Applicant i.e. M.A. No. 741 of 2013."
Learned Advocate General submitted that, that is why the National Green Tribunal further observed that, "On the bare reading of the above, it is clear that the Projects relating to mining of minor minerals (sand) where the mining area was less than 5 hectares were not covered by this Notification" and that is why the Tribunal also observed as under:-
"Therefore, it is evident that the Tribunal passed an Order only to implement the intent of the legislature, the dictum of the Supreme Court and the law presently in force. It was not an order dehors the existing law but was an order that was passed primarily to ensure strict compliance of the law of the land."
Learned Advocate General then invited attention Page 66 of 86 C/LPA/824/2013 JUDGMENT of the Court to other part of the order of the National Green Tribunal, wherein the Tribunal has stated that:-
""We make it absolutely clear that our Order dated 05th August, 2013 which bans removal of sand even from the lease area without permission or grant of permission by MoEF /SEIAA would continue to be in force till further Orders. Before we part from this file we must notice that MoEF which also is the Authority to notify SEIAA needs to take effective steps to ensure that the Applications for grant of EC received in various part of the country should be considered with utmost expeditiousness to avoid any of its adverse effects on economy and development of the country at large. Furthermore, it is also expected not only of MoEF but even the State Governments to ensure that there is no revenue loss caused to the State on account of carrying on such activity clandestinely as it is entirely prohibited in terms of Notification, the Order of the Hon'ble Supreme Court of India and the Order of the Tribunal dated 5th August, 2013 read with 14th August 2013.
(emphasis supplied) 8.7 Learned Advocate General lastly referred to the order of the National Green Tribunal dated 26.09.2013 passed in M.A. No.738 of 2013, which was filed by the applicant praying that, 'the State of Gujarat has entered into the contracts for carrying on of mining of minor Page 67 of 86 C/LPA/824/2013 JUDGMENT mineral (extraction of sand) even in the areas which are within 3 meters from water level, which is impermissible'. Learned Advocate General emphasized the statement of the learned Counsel appearing of the State of Gujarat, which is recorded as under:-
"Learned counsel appearing for the State of Gujarat submits that the State itself has already banned the mining activity under these 3 contracts and further makes a statement that no mining activity would be permitted to be carried on without taking EC either from MoEF/SEIAA, irrespective of the size, as the case may be."
(emphasis supplied) 8.8 Learned Advocate General submitted that the State Government banned mining activities under three contracts, which were the subject matter before the National Green Tribunal. Besides, a further statement was also made that, "no mining activity would be permitted to be carried on without taking EC either from MoEF/SEIAA, irrespective of the size, as the case may be". Learned Advocate General fairly submitted that may be because it takes time to get instructions percolated at the level of the executing machinery and may be on account of non-efficient coordination that leases may have been granted or renewed ever after 26.09.2013. But then, the State equally shares the anxiety of the Court Page 68 of 86 C/LPA/824/2013 JUDGMENT and is ready to abide by any directions which may be issued by this Court to see that the order passed by the Hon'ble the Apex Court in the case of Deepak Kumar (supra) is effectively enforced. In this regard, learned Advocate General invited attention of the Court to letter dated 18.12.2013 written by the Commissioner of Geology and Mining to its subordinate officers at the district levels, inviting their attention to the letter of the Chief Conservator of Forests dated 30.12.1999 and circular dated 09.08.2002 issued by Forests and Environment Department saying that, "In the aforesaid two references, if without 'No Objection Certificate', any lease is granted or executed, in all such leases, with immediate effect, mining activity is ordered to be stopped". It is mentioned in the said letter that, "By the aforesaid letters under reference, it is provided that if lease area falls within 5 kms. from the periphery of Reserved Forest /Protected Forest /Forest Area, minimum 50 mtr. distance is to be maintained and No Objection Certificate from the Forest Department is to be obtained". It is also mentioned in the said communication that, "These instructions should be implemented with immediate effect, i.e. 18.12.2013 (the date of communication)".
8.9 Learned Advocate General also invited attention Page 69 of 86 C/LPA/824/2013 JUDGMENT of the Court to the communication of the same date, i.e. 18.12.2013, wherein order of the National Green Tribunal dated 05.08.2013 and 26.09.2013 are referred to. It is specifically communicated by the Commissioner of Geology and Mining to its subordinate officers at district level that, "As per the order of the Hon'ble National Green Tribunal dated 05.08.2013, without obtaining environmental clearance certificate from MoEF /SEIAA, excavation of sand from riverbed is prohibited". It is also stated in that communication that, "Though order dated 05.08.2013 is clarified by the Hon'ble National Green Tribunal by its order dated 26.09.2013, but despite that, if any lease is granted after the aforesaid order of the National Green Tribunal without procurement of environmental clearance certificate, excavation activity shall be stopped with immediate effect and as per the aforesaid institutions, excavation activity be resumed /commenced only after environmental clearance is obtained".
8.10 Learned Advocate General then invited attention of the Court to the affidavit filed by one Shri Yogesh Bhalchandrabhai Raval, Geologist, affirmed on 12.02.2014. Learned Advocate General invited attention of the Court to para of para-2.9 which reads as under:-
"Thus, the learned NGT has considered the Page 70 of 86 C/LPA/824/2013 JUDGMENT aforesaid amending notification dated 9.9.2013 as the law presently in force. At this stage, it may be mentioned that the said notification dated 9.9.2013, while inserting a new clause- 1(a) in the EIA notification dated 14.9.2006, makes it abundantly clear that at the time of the expiry of any mining lease, its activities are not to be stopped if any application for obtaining Environmental Clearance is made within the prescribed time limit indicated in the said notification. In view of this, activities of such mining leases cannot be stopped only on the ground that it does not have a Environmental Clearance in hand, though it had applied for the same well in advance and the application is pending for consideration."
8.11 Learned Advocate General then invited attention of the Court to para-4 of the affidavit, wherein anxiety of the State Government is articulated. Para-4 reads as under:-
"4. In light of the above discussion and as assured before this Hon'ble Court in the matter of grant of sand quarry leases, the following actions would be taken by the respondent authorities:
(a) After the order dated 5.8.2013 of the learned National Green Tribunal ('NGT'), no Sand Quarry Leases will be granted without prior Environment Clearances.
(b) In fact, after the aforesaid order, the
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State Government has already directed the
closure of as many as 45 Sand Quarry Leases, since they were granted without there being any Environment clearance certificate with them. This was so done pursuant to the instruction issued vide letter dated 18.12.2013 (Flap No.9 in earlier Compilation).
(C) In case of all the Sand Quarry Leases, as and when they will fall due for renewal, will be directed for obtaining the requisite Environment Clearance.
(D) No Sand Quarry Leases will be granted within National Forest, Sanctuary, Conservation Reserve, and Reserved Forest or Protected Forest.
(E) All fresh Sand Quarry Leases will be granted by way of auction as per the Policy announced vide GR dated 13.12.2013, which is in tune with Rule 69 of Gujarat Minor Mineral Concession Rules, 2010. In all the auction notices, it will be clearly mentioned that it will be the responsibility of the successful bidder to obtain prior Environment Clearance and for that purpose, the State Authorities will not be responsible in any manner and that even after auction, activities will be allowed to be undertaken only after the grant of Environment Clearance.
However, in the event of the auction being not feasible, provisions laid down under rules 6 to 10 of the Concession Rules, will be followed Page 72 of 86 C/LPA/824/2013 JUDGMENT for the grant of Quarry Leases."
(emphasis supplied) 8.12 Learned Advocate General, to put the anxiety on the part of the State Government on record, made available for perusal a copy of communication dated 02.12.2013 from the Government of Gujarat, Forest and Environment Department to the Secretary, Ministry of Environment and Forests, New Delhi, wherein the subject is, "Nomination for State Level Expert Appraisal Committee (SEAC) and State Level Environmental Impact Assessment Authority (SEIAA) for Gujarat State". Learned Advocate General invited attention of the Court to the fact that there was SEAC and SEIAA for Gujarat State in existence for a term of three years, which commenced from the date of communication dated 12.06.2007. The said committee - SEAC and SEIAA was reconstituted by order dated 23.07.2010 for a second term of three years, but then, that second term has already ended on 22.07.2013.
that is why the State has addressed that communication to the Ministry of Environment and Forests with a view to see that the work of issuance of environmental clearance does not suffer. The State mentioned the persons as per the eligibility criteria given in Appendix-VI and relevant provisions of the EIA Notification, 2006 for SEAC and SEIAA and in concluding para of the communication, stated that, "As second tenure of SEAC and Page 73 of 86 C/LPA/824/2013 JUDGMENT SEIAA of the State has already ended on 22/07/2013, we humbly request you to take necessary actions and reconstitute SEAC and SEIAA for Gujarat State at the earliest.....".
8.13 Learned Advocate General then invited attention of the Court to communication dated 08.01.2014 from the same department, i.e. Forests & Environment Department to the Secretary, Ministry of Environment and Forests. The subject of the communication is, "Nomination for constitution of separate State Level Expert Appraisal Committees (SEACs) and State Level Environmental Impact Assessment Authority (SEIAA) for the Gujarat State for Mining Projects of Minor Minerals having lease area less than 5 Ha". Learned Advocate General invited attention of the Court to the relevant part of that communication, which reads as under:-
"For orderly and quick disposal of environmental clearance applications of minor mineral mining projects having lease area less than 5 Ha, it is utmost necessary to constitute separate State Level Environment Appraisal Committees (SEACs) for each district of the State and a common dedicated State Level Environment Impact Assessment Authority (SEIAA) to deal with the projects recommended by all such SEACs."
Learned Advocate General submitted that this
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was required, more particularly in light of the
development which took place by amendment to EIA
notification dated 14.09.2006, wherein sub-para (iii) of para-4 came to be amended by substituting the last sentence of the said para. The last sentence before amendment read as under:-
"In the absence of a duly constituted SEIAA or SEAC, a Category 'B' project shall be treated as a Category 'A' project."
The said sentence after amendment read as under:-
"In the absence of a duly constituted SEIAA or SEAC, a Category 'B' project shall be considered at the Central Level as a Category 'B' project" shall be substituted."
(emphasis supplied) 8.14 Learned Advocate General submitted that in view of this, all States where SEACs and SEIAA are not constituted, the applications will be submitted to MoEF and there will be congestion of applications at MoEF for grant of environmental clearance. Learned Advocate General submitted that this in turn is likely to hamper the economic activities. The learned Advocate General submitted that even the National Green Tribunal has expressed the same anxiety in its order dated 26.09.2013 Page 75 of 86 C/LPA/824/2013 JUDGMENT in the following words:-
"..... Before we part from this file we must notice that MoEF which also is the Authority to notify SEIAA needs to take effective steps to ensure that the Applications for grant of EC received in various part of the country should be considered with utmost expeditiousness to avoid any of its adverse effects on economy and development of the country at large....."
9. The matter was heard at length. During the course of hearing, it transpired that the directions required to be issued in this case are of vide amplitude and of the nature which can be issued only in PIL matters. The Court therefore expressed its opinion that the matter is required to be referred to the Hon'ble the Chief Justice so as to pass necessary order to place the same before the Bench taking up PIL matters.
9.1 At this juncture, learned Advocate General submitted that he has no objection if this Court concludes the matter as hearing has already concluded. The learned Advocate General submitted that he is more than willing if the judgment is rendered by this Court. 9.2 The Court, keeping in view the propriety and the judicial discipline, passed an order on 30.01.2014 and directed the Registry to place the matter before the Hon'ble the Chief Justice to pass necessary order for Page 76 of 86 C/LPA/824/2013 JUDGMENT placement of the matter. The Hon'ble the Chief Justice by the order of the even date assigned the matter to this Bench. The order is to the effect that, "The hearing of the concerned LPA having been concluded before the D.B. presided over by Tripathi, J, that D.B. Should dispose of the matter separately". It is in view of this order that the Court has taken up the matter and has rendered this judgment.
10. The Court considered the rival submissions made by the learned Senior Advocate for the petitioner and learned Advocate General appearing for the State. The Court is of the opinion that, 'rival submissions' may not be the correct terminology because the submissions are more in the nature of 'assistance to the Court to pass appropriate orders in the matter' because the learned Senior Advocate for the petitioner and learned Advocate General appearing for the State shared the same anxiety as that of the Court and that is, 'protection of environment'. (emphasis supplied). 10.1 This Court is of the opinion that the field is covered by the directions issued by the Hon'ble the Apex Court in its various pronouncements in such similar matters. The question in the present matter is covered by the directions issued by the Hon'ble the Apex Court in para-29 in the case of Deepak Kumar (supra). This Court Page 77 of 86 C/LPA/824/2013 JUDGMENT is of the considered opinion that these directions are required to be complied with by the State Government in its letter and spirit. That being so, in the matter of grant and /or renewal of lease, even in cases wherein area of lease is less than 5 hectares, the State Government has to insist for environmental clearance from MoEF.
11. The question involved in the matter is not only grave but also multi-facet. There is a list produced on the record of this case along with affidavit of one Shri Sanjay Vrajvihari Dave, Commissioner of Geology and Mining, affirmed 30.11.2013. In the said list, it is mentioned that there are as many as 2887 leases operating in the State of Gujarat within the periphery of 5 km. from Sanctuary, National Park, Conservation Forest, Protected Forest and Reserved Forest. (emphasis supplied). 11.1 This Court is of the opinion that utmost concerned is required to be shown by the State authorities so are as these leases are concerned and therefore, this Court is of the opinion that excavation activities in these areas (leases) should be stopped immediately. The State is hereby directed to see that excavation activities are stopped and possession is resumed by the State Government forthwith. It is made clear that any grant of lease in these areas should be Page 78 of 86 C/LPA/824/2013 JUDGMENT only in accordance with the directions given by the Hon'ble the Apex Court, i.e. "... after having obtained environmental clearance from the concerned authority (for the present, in absence of SEACs and SEIAA, it is MoEF to consider and grant environmental clearance). (emphasis supplied) 11.2 The startling fact which has come to the notice of this Court during the hearing of this matter is that in the State of Gujarat, all leases are granted without undertaking the exercise of auction. It is a settled law that whenever any such lease is to be granted, the same should be only and only by way of auction and not in the manner in which it is granted so far.
Any excuse for not adhering to the exercise of auction will not be acceptable by the Court of law and it is expected from the State Government that the exercise of auction will be made as vide as possible and as transparent as possible. For that, the State Government may decide a suitable course of action and if required, due weightage may be given to the latest technology like ''E-Tendering', etc., but the lease should be granted only by way of auction.
11.3 So far as grant of lease or even for that reason renewal of lease after the order of the Hon'ble Page 79 of 86 C/LPA/824/2013 JUDGMENT the Apex Court dated 27.02.2012 in the case of Deepak Kumar (supra) is concerned, the same illegal and also contemptuous and therefore, it is deemed proper to direct and accordingly it is directed that all leased operating in the State of Gujarat either granted or renewed after 27.02.2012 must be discontinued and possession of the land in which such leases operate be resumed by the State Government. Once this is done, it will be open for the State Government to grant lease for these areas afresh only by way of auction. While auctioning, it be made clear in the auction notice that leaseholder will be allowed to operate only and only after he produces environmental clearance before the Government. Besides that, as set out in Clause-(E) of para-4 of the affidavit of Yogesh Bhalchandrabhai Raval, Geologist, affirmed on 12.02.2014 that, in all the auction notices, it will be clearly mentioned that "it will be the responsibility of the successful bidder to obtain prior Environment Clearance and for that purpose, the State Authorities will not be responsible in any manner and that even after auction, activities will be allowed to be undertaken only after the grant of Environment Clearance". (emphasis supplied).
12. The Court has to consider next the question of leases, the renewals of which are made prior to Page 80 of 86 C/LPA/824/2013 JUDGMENT 27.02.2012. Learned Senior Advocate for the petitioner submitted that a similar treatment be accorded to the leaseholders whose grant or renewal is prior to 27.01.1994, but subsequent to 14.09.2006, i.e. after issuance of EIA notification.
The Court is mindful of the fact that the leases are granted /renewed after 14.09.2006 stand on different footing in comparison to the leases granted or renewed after 27.02.2012. That being so, the Court is of the opinion that it will be proper if three months' time is granted to such lease holders to apply and obtain environmental clearance. Taking into consideration the fact that these leases are granted without 'auction', it is directed that at the end of 6 months' from today, if no environmental clearance is obtained, their leases will stand terminated and it will be obligatory on the part of the State Government to resume possession of the areas in which these leases are granted. Thereafter, it will be obligatory on the part of the State Government to grant lease in the same manner as set out hereinabove, i.e. by auction and insisting for environmental clearance. (emphasis supplied).
13. Learned Senior Advocate for the petitioner invited attention of the Court to some glaring facts in the compilation filed by the learned AGP. For the Page 81 of 86 C/LPA/824/2013 JUDGMENT District of Patan, it is stated there are as many as 12 leases operation. Interesting thing with regard to these leases is that these leases are granted for the unidentified land. The land is not identifiable because there 'no survey number is mentioned'. Only the name of River is mentioned. Assuming that there is no survey number for the riverbed then some other method ought to have been employed to ascertain the identification of the land. Five of them are in riverbed of River 'Saraswati', sic of them are in the riverbed of River 'Banas' and one is in the riverbed of River 'Pushpav'. The grant of lease without mentioning survey number or any other mode of identification of the land seems to be a 'magical trick'. In such circumstances, it is necessary that these leases should be cancelled by the State Government forthwith, irrespective of the fact as to when such leases were granted or renewed. (emphasis supplied).
It is also directed that any lease, of which land is unidentifiable, not only of Patan District but anywhere in the State be cancelled forthwith and possession be resumed by the State Government. The State shall resume the lease areas of these leases and should award the same after following the procedure prescribed hereinabove, i.e. by auction and with insistence of environmental clearance. (emphasis supplied). Page 82 of 86
C/LPA/824/2013 JUDGMENT 13.1 Learned Senior Advocate for the petitioner
invited attention of the Court to the fact that there are certain cases, e.g. in the case of Prakash Quarry Works, wherein date of grant of lease is 08.02.1985 and date of last renewal is 03.01.2005 and the period for which it is renewed is 10 years. To take care of such leases and such renewals, it is directed that all the leases in the State of Gujarat, which do not find place in the aforesaid direction, should come to an end on the expiry of period of 6 (six) months from today and the lease area be resumed by the State Government. Once that is done, it will be obligatory on the part of the State Government to award the same after following the procedure prescribed hereinabove, i.e. by auction and with insistence of environmental clearance. (emphasis supplied).
14. In the affidavit of Shri Yogesh Bhalchandrabhai Raval, Geologist, below Clause-(E) of para-4, it is mentioned that, "However, in the event of the auction being not feasible, provisions laid down under rules 6 to 10 of the Concession Rules, will be followed for the grant of Quarry Leases".
14.1 The Court is unable to understand as to what is sought to be conveyed by the aforesaid para. The Court is also not able to visualize as to what will be those Page 83 of 86 C/LPA/824/2013 JUDGMENT circumstances in which auction will not be feasible. If the auction is not feasible, why there should be anxiety on the part of the State Government to grant lease in such area by taking recourse to Rules 6 to 10 of the Concession Rules. The tenor of the aforesaid sub-para seems to be that the State Government is keen on seeking that the said is excavated from the area where auction is not feasible. It is a matter within the domain of common understanding that whenever there will be demand of any commodity like sand, there will be willing persons to supply the same and those willing persons will obtain the said by getting a lease for excavation. Once there are willing persons to obtain lease, 'auction' will be feasible. Therefore, submission based on the aforesaid sub-para by the learned Advocate General cannot be accepted and is discarded. In light of this discussion, it is made mandatory for the State Government to grant lease by auction and to insist for environmental clearance in every single case. (emphasis supplied).
15. Learned Senior Advocate for the petitioner submitted that he has an apprehension that the Bureaucrats may not make it clear at the time of auctioning in the notice that the amount paid by the bidder will be refundable, in the event he is not able to obtain environmental clearance. If that happens then it Page 84 of 86 C/LPA/824/2013 JUDGMENT will discourage people to come forward to participate in auction. The learned Advocate for the petitioner requested that the Court may issue general direction to the State Government to clarify this aspect at the time of auctioning. Besides that, it may also be directed that auctioning should take place only after giving wide publicity and it deemed proper, permitting auction through electronic means like on-line or 'E' tendering. (emphasis supplied).
The submissions are found acceptable hence order accordingly. In addition to that, it will also be in fitness of things if the State Government makes payable a fixed percentage of the tender amount at an initial state. Remaining amount be made payable after furnishing environmental clearance, after which permission to excavate be granted. (emphasis supplied).
16. Learned Senior Advocate for the petitioner rightly pointed out that out of the compilation submitted by the State running, into about 1000 pages, not in one case, the State is able to point out that the lease was granted by 'auction'. Learned Senior Advocate for the petitioner submitted that this has necessarily resulted into huge monetary loss to the State Government-Public Exchequer. Taking into consideration the submission of the learned Senior Advocate for the petitioner, the Court Page 85 of 86 C/LPA/824/2013 JUDGMENT has deemed it proper to direct to grant lease by auction only. This direction is issued irrespective of 'Rules' in this regard. (emphasis supplied).
17. The LPA is dismissed. No order as to costs.
18. The SCA is disposed of. Rule is discharged. Interim relief granted earlier is vacated. No order as to costs.
19. As the main LPA is dismissed, the Civil Application does not survive and the same is disposed of accordingly.
20. Despite the fact that LPA is dismissed and SCA is disposed of, Registry is directed to list these matters on 21.08.2014 to enable the State Government to report compliance of the judgment and order.
(RAVI R.TRIPATHI, J.) (MOHINDER PAL, J.) SHITOLE Page 86 of 86