The Patna High Court allowed a Public Interest Litigation filed aggrieved with the notification by which quarrying for the purpose of brick-kiln was deemed to be a non-mining activity for the purpose of environmental clearance and also required that such clearance would be imperative only if the depth of quarry is not more than one and a half meters from the adjoining ground level.
Abhinav Shrivastava, counsel for the petitioner, specifically pointed before the High Court that notification issued by the Ministry of Environment, Forest and Climate Change (MoEF&CC) dated 28.03.2020, wherein by Appendix-IX, a number of activities were held to be not requiring prior environmental clearance. Sl. No. 13 of the Appendix provided for activities which could be declared by the State Government under legislation or rules as a non-mining activity.
It is argued that primarily, it is beyond the power conferred on the executive government at the Centre and in any event, it results in excessive delegation. Further, it is argued that even if Sl. No. 13 is found to be in order, then, necessarily the activities which are so declared by the State Government, can only be such activities as are covered by or similar to those described in Sl. Nos. 1 to 12. Sl. Nos. 1 to 12 are all activities which ensure preservation of a traditional occupation or a craft or skill and along with such preservation, sustenance of the livelihood of the marginalized groups in society who will be unable to procure an environmental clearance. There are absolutely no guidelines insofar as bringing in activities by the State as provided in Sl. No. 13. Specific reliance is made to Annexure which has spoken of preservation of top soil, which is to maintain the fertility of the soil, whose objective would be defeated and frustrated, if rampant brick-kilns are brought into operation.
Abhimanyu Singh, Standing Counsel for the Bihar State Pollution Control Board, points out that despite absolving the brick-kilns from getting environmental clearance, they have to get a consent to establish and then a consent to operate from the Pollution Control Board, which is as per the Air (Prevention and Control of Pollution) Act, 1981.
The Government Advocate specifically pointed to the notification issued by the MoEF&CC, wherein Sl. No. 13 had required an approval from the Central Government before the State declared any activity to be one not requiring prior environmental clearance. The said rigor has been removed in Annexure-4 notification, which clearly indicates the mind of the Central Government. The intention is only to promote such activity by the State, which are considered to be imperative and expedient in development, while at the same time ensuring no environmental depredation is occasioned, as in a mining activity.
The Division Bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar noted the notification brought out by the Central Government which specifically affirms the Mineral Laws (Amendment) Act, 2020, amending the Mines and Mineral (Development and Regulation) Act, 1957 and introducing inter alia a new Section 8B in the MMDR Act.
Sub-section (1) of Section-8B provides that notwithstanding anything contained in the Act or any other law for the time being in force, a successful bidder of mining leases, expiring under the provisions of Sub-sections (5) and (6) of Section-8A of the MMDR Act and selected through auction, shall be deemed to have acquired all valid rights, approvals, clearances, licences and the like, vested with the previous lessee for a period of two years.
Sub-section (2) again a non obstante clause, provides that it shall be lawful for the new lessee to continue mining operations on the land for a period of two years as done by the previous lessee.
It is to further the object of the aforesaid amendment to the MMDR Act, that the Central Government brought out the notification dated 28.03.2020. to align the relevant provisions of the earlier notification; S.O. 1533 (E) dated 14.09.2006, with the provisions of the MMDR Act with the Environmental Impact Assessment (EIA) Notification, 2006.
The notification also refers to the representations received by the MoEF&CC for waiver of prior environmental clearance for burrowing ordinary earth for roads, manual extraction of lime shells, shrines etc., within inter tidal zones by the traditional community. Prior environment clearance is a measure brought in to preserve the environment.
The Court noted that the notification was brought out exercising the powers conferred by Section 3 (i) (ii) and (v) read with Rule-5 (iv) of the Environmental (Protection) Rules 1986, after dispensing with the requirement of notice under Rule-5(3)(a).
Here, we have to immediately refer to the provisions of the Environmental (Protection) Act 1986 and the rules framed thereunder. Section-3(1) confers the Central government with the power to take all measures, deemed necessary or expedient, to protect and improve the quality of the environment, aimed at preventing, controlling and abating environmental pollution. Clause-(5) of sub-section (2) also specifies prescription of areas in which any industry, operation or process or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards.
The Court has specifically emphasize that the provisions of the Environment Act is to bring in measures to prevent, control and abate environmental pollution.
Rule-5 of the Environment (Protection) Rules, 1986, has the nominal heading of ‘Prohibition and restriction on the location of industries and the carrying on processes and operations in different areas’ (sic) and Sub-rule (4) of rule 5 speaks of dispensing with the requirement of notice, if it appears to the Central Government to be in public interest.
The notification while providing for specific environmental clearance in furtherance of the object to Environment Protection Act also provides for certain exemptions, which was the specific concern of the Central Government, while bringing out the notification dated 28.03.2020.
Indubitably the power to restrict industries, brings with it the power to exempt the restrictive measures for certain activities; which should be either on the ground of such exempted industries not leading to depredation of environment or there existing any expedient circumstance akin to protection of traditional industries, protecting the masses from natural calamities or in furtherance of developmental activities.
The Court have again emphasize that the exemption sought by the representations was insofar as extracting ordinary earth for roads, manual extraction within inter tidal zone by the traditional community and so on.
Clauses-1, 2, 8 and 9 are to protect the traditional communities like the potters, earthen tile makers, Banjaras & Oads in Gujarat and traditional communities within inter tidal zones. Clauses-3, 4, 5, 7 and 12 are provisions to protect farm lands from natural calamities like floods, customary extractions for community work, community works, dredging and desilting of water bodies and plugging any breach in the natural or man-made water bodies; which could lead to a disaster.
Clause-6 refers to burrowing of ordinary earth for linear projects such as roads, pipelines etc. Clause-10 refers to irrigation or drinking water purpose and Clause-11 refers to digging of foundation for buildings, not requiring prior environmental clearance. Clause13 is the objectionable clause which speaks of activities declared by the State Government under legislation or rules as non-mining activity.
Further, the Court noted that earlier such notifications or legislations required the concurrence of the MoEF&CC, Government of India which has been taken away, providing carta blanche insofar as the State being conferred with the power of exempting mining activities.
This would inherently be a further delegation of the power conferred by the Parliament on the Central Government by the Union Legislation. We have already noticed the rule making power of the Central Government, which is aimed at preserving and protecting the environment for which appropriate measures could be taken. While taking such appropriate measures, the Central Government, as the Court found, is quite competent to reckon the activities
(i) carried out traditionally,
(ii) for development; confined to roads, pipelines etc.; which are public utility services,
(iii) protection of the masses from natural calamities, and (iv) provision of basic necessities of life, like drinking water and irrigation.
Brick manufacturing does not come under any of the exempted categories as specified from the various exemptions granted under Appendix-IX or from the power sourced to the Environment Protection Act.
The ‘other activity’, which is capable of being exempted, referred to in Clause-13 of Appendix-IX has to be akin to and take its colour and texture from the other activities mentioned under Appendix-IX as exempted activities, going by the principle of ejusdem generis.
The Court emphasized that the State has not been conferred with any such power of exemption by the statute; neither the MMDR Act nor the Environment Protection Act. In that circumstance the power delegated to the Union Government cannot further be delegated to the State Government on the principle of “deligatus non protest delegare”.
“Hence, both on the principle of ejusdem generis and more so on the principle of a delegate being prevented from further delegation, Annexure-2 notification of the State Government has to be interfered with.
The amendment to Rule-38(3) of the Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019 has to be set aside. We do so. The EIA Notification of 2006 to the extent it delegates the power to exempt, to the State by Clause-13 of Appendix-IX also is bad and the same stands set aside. The writ petition stands allowed”, the order reads.