Kamlesh Verma vs State of U.P. and Others

Issue notice.

Notice on behalf of respondents No. 1 to 11 has been accepted by learned Chief Standing Counsel, while notice on behalf of respondent No. 12 has been accepted by Sri R.P. Shukla.

Issue notice to respondents No. 13 to 15 returnable at an early date.

Counter affidavit filed on behalf of the State be taken on record.

Petitioner, who is an educated member of the society and is trustee of the Winsoft Education Trust, Janakpuri New Delhi has filed this PIL petition seeking various directions to curb illegal mining.

Counsel for the petitioner has vehemently argued that the State Authorities have granted lease deed without following the mandatory requirement as provided in the Notification Dated 14th September, 2006 issued by the Central Government. According to him the notification dated 14th September, 2006 clearly stipulates that mining lease above the area of 5 hectare shall require Environmental Impact Assessment Clearance from the State Level, State Environment Impact Assessment Authority. The need for getting the environment clearance certificate has been increasing as over the years the rivers flowing in the State of Uttar Pradesh have been rapidly changing course and the number of endangered mammals and reptiles have been decreasing, and these all are primarily attributed to rampant unscientific and uncontrolled excavation of minerals from the river bed. Looking into the ever growing need of the preservation of ecology and environment, it is necessary that the State authorities should grant and renew and permit the leases to go on only after an environment impact assessment of the areas is done.

It has also been vehemently argued that the State Government through its District Officer has granted or renewed the lease in utter disregard of the aforesaid notification. Even the State Government had issued a Government Order dated 30th November, 2002 providing therein that mining near the river bed below the ground level of two meters is not permissible, yet the authorities have not taken any stringent action to implement the said government order. In order to substantiate his contentions, the petitioner has annexed copies of the some of the lease deeds which have been executed without following the necessary requirement.

It has also been vehemently contended by the petitioner''s counsel that the State Government has lacked in his effort to preserve the environment and had failed to check the usages of heavy machines such as JCB, Pockland etc. in the mining operation. The officer of the State Government in collusion with the mining tekhedars are illegally allowing the use of heavy machines in excavation of minerals beyond the permissible limit of two meters. The main concern of the petitioner is that the uncontrolled usages of machines in the mining activities has resulted in the depletion of the flora and fauna of the area, as well as it has been the root cause of receding under ground water level which in several area of the State of Uttar Pradesh.

Sri S.G. Hasnain, Additional Advocate General, assisted by Sri P.N. Gupta, learned Chief Standing Counsel for the State, raises an objection that the instant writ petition is not maintainable as PIL insofar as it has been filed by Kamlesh Verma, who is an active member of Uttar Pradesh Congress Party and the same is a politically motivated petition as has been held by Hon''ble Supreme Court in the case of ''Kusum Lata v. Union of India Civil Appeal No. 6527 of 2004. He further submits that the mining lease areas are regularly inspected by the technical officers of the Directorate of Geology and Mining, Uttar Pradesh, Lucknow and the technical officers have always ensured that mining operations are not being carried out in an unskillful manner or causing any damage to the environment of the area or dis-balancing the ecology of the area by using heavy machines as contended by the petitioner. He further submits that the minerals and minor minerals has been categorized differently as held by the Hon''ble Apex Court in the case of D.K. Trivedi and Sons and Others Vs. State of Gujarat and Others, and as such, the notification dated 14.9.2006 issued by the Government of India, Ministry of Environment and Forests is not applicable in the case of ''Minerals'' for which lease has been executed by the State. He also submits that the word ''Minerals'' does not include ''Minor Minerals''.

It has been stated in the instant writ petition that the petitioner himself stated to be a public spirited citizen of the Country and is conscious and aware of his duty of protecting the environment and helping in contributing towards the protection of ozone layer, water resources and the animals etc. in their natural habitat. It has further been stated that the petitioner is trustee of the Winsoft Education Trust, which is running several education centres in collaboration with a number of Universities in New Delhi, Uttar Pradesh, Punjab, Haryana and Chattisgarh. The petitioner possessed Master of Business Administration and Master in Philosophy of Management.

Being a member of any political party will not debar a person to approach the Court by bringing to the notice of the Court of violation of statutory provision including the provision of the Constitution. Article 21 of the Constitution of the India provides for protection of life and personal liberty and also embodies within it the fundamental right to breathe fresh air, drink save water and live in a pollution free environment. Article 48-A of the Constitution enjoins upon the State to protect and improve the environment and to safeguard the forests and the wildful of the Country, whereas Article 51-A(g) ordains that "it shall be the duty of the every citizen of India to protect and improve the natural environment including forest, lakes, rivers and wild life and to have compassion for living creatures." Thus, it is the duty of the State as well as the duty of every citizen to help and protect the environment and the petitioner being an educated citizen can bring to the notice of the Court rapidly changing course of various rivers, decreasing in the number of animals belonging to reptile family including the change in the ecology balance. The action of State by granting mining leases and the lease holders engaged themselves in illegal mining. Thus, we are entertaining the writ petition.

Rebutting the submission of Sri S.G. Hasnain, learned Additional Advocate General, learned Counsel for the petitioner submits that D.K Trivedi (supra) rendered by the Hon''ble Apex Court has neither considered the provisions of Environment Protection Act, 1986 nor the notification, which has been issued in exercise of powers conferred by Sub-section (1) and Clause (v) of Sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 read with Clause (d) of Sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 and notification number S.O. 60 (E) dated the 27th January, 1994. The said notification has been issued keeping in view the required construction of new projects or activities or the expansion or modernization of existing projects. Learned Counsel for the petitioner submits that thus, the provisions of the notification dated 14th September, 2006 for environment clearance is necessary in respect of excavation of any minerals and further the word ''Minerals'' includes ''Minor Minerals'' also. Learned Counsel for the petitioner submits that he will deal with the said submission of the petitioner in filing the rejoinder affidavit.

A perusal of the notification dated 14th September, 2006 issued by the Ministry of Environment and Forests, Central Government shows that from the date of publication of the aforesaid notification the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Scheduled to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior permission of the Environment Impact Assessment Authority, duly constituted by the Central Government under Sub-section (3) of Section 3 of the said Act, in accordance with the procedure specified in the notification.

It is also relevant to mention that when illegal mining operations in the District of Bijnore were noticed by this Court during the hearing of Writ Petition No. 5361 (MS) of 2008 Smt Pratibha Karnwal and Anr. v. State of U.P. and Ors. this Court constituted a committee of Senior Officers of Geological Survey of India, Indian Bureau of Mines and the officers nominated by the State Government. The Committee in its report has indicated that provisions of Uttar Pradesh Minor Mineral Concessions Rules, 1963 have been violated with impunity. In paragraph VIII of the report, it is mentioned that irregular, uneven and unsystematic mining operations which are spread over the large area in number of pits of varied dimensions is damaging the river course and near by agricultural land and habitants. Mining leases where the river course has not sufficient width should not be granted. Mined out areas after the completion of the mining activities should be restored back to its original shape. Deployment of heavy earth moving machinery for extraction, loading and transportation of mineral should be avoided except for use of levelling/reclamation of riverbeds.

The Committee has mentioned in so many words that Government Order issued by the State Government, U.P. for River Bid Deposit Minerals, Ordinary Sand, Morrum, Bajari etc. on dated 30.12.2000, 27.8.2002, 2.11.2002, 28.11.2002, 30.11.2002 & 16.10.2004 have not been fully and effectively enforced by the concerned executing authorities to the extent as given in this report briefly given as under:

(i) The adjoining minerlized area have not been leased out in order to ensure systematic mining in compliance of item II of Government Order dated 16.10.2004.

(ii) No systematic mapping and technical report of the availability of the mineralized area has been complied with before advertisement of the area.

(iii) Demarcation of the leased area has not been carried out properly.

(iv) Unscientific and illegal mining has resulted in degradation of river bed and river banks.

Undoubtedly, prohibition on the use of machines has been made not only on account of the fact that the use of machines will cause damage to the environment or would affect the natural flow of the river but also it founds that the use of the machines will displace the persons of castes traditionally engaged in mining. see Satyendra Kumar Tripathi v. State of U.P. and Ors. decided on 23.12.2004 and Zunaid Ahmad Vs. The State of U.P. and Others,

Considering the peculiar facts and circumstances of the case and particularly the fact for using heavy machines for excavating minerals, as alleged in the instant writ petition, we proposes to direct all the District Magistrates of the State of U.P. to submit a report to the Chief Secretary, State of U.P., Lucknow by 20th July, 2009 on the following points :

(i) Whether the lease has been granted or renewed of area above five hectare without clearance of the Environmental Impact Assessment Authority (State Level).

(ii) Whether procedure as provided in the notification dated 14th September, 2006 issued by Ministry of Environment and Forest, Government of India, has been followed or not.

(iii) Whether the authorities ensured that the Government order dated 30th November, 2002 has been implemented in its letter and spirit and what steps had been taken to implement the aforesaid Government Order.

(iv) Why the use of heavy machines by the lease holders has not been prevented and what action has been taken in this regard. Any lease has been cancelled of the lease holders, who have given the affidavit that they are using machines for excavation of minerals.

(v) Whether the suggestions given in the report dated 10th December, 2008 given by the Committee headed by the Mr. Deepak Srivastava, Deputy Director General, Operation, Uttar Pradesh and Uttarakhand, GSI, Northern Region, Lucknow and report dated 9.3.2009 submitted by the Committee comprising of Mr. A. Hadi, Mr. S.K. Das and Mr. S. Sakani have been taken into consideration while granting or renewing the lease for mining operations.

The reports so submitted by the respective District Magistrates shall be scrutinized by the Chief Secretary, Government of U.P., who shall file his personal affidavit annexing therewith the reports of all the District Magistrates and indicating the action taken thereon by him. The Chief Secretary, State of U.P., shall appoint an officer of his office not below the rank of Joint Secretary, who shall appear in person on the date fixed along with the relevant records and personal affidavit of Chief Secretary and his comments.

List this case on 30th July, 2009 at 2.00 P.M. for further hearing.

In the meantime, learned Counsel for the petitioner may file rejoinder affidavit to the counter affidavit filed on behalf of the State.

The Joint Registrar (Listing) shall obtain necessary permission from Hon''ble the Chief Justice for constitution of the Bench. The Chief Standing Counsel shall ensure the presence of the officer of Chief Secretary''s office not below the rank of Joint Secretary, the Director, Geology and Mining and Senior Officer of the State Government in the department of Geology and Mines, when the case is listed.

Registrar is directed to send a copy of this order to the Chief Secretary, State of U.P., for compliance of the order today.