2 Nov 2022 12:55 PM GMT
The Bombay High Court recently held that quarry permits for extraction and removal of minor minerals from a specified area for a temporary period do not require prior submission of environmental clearance certificate under Rule 59 of Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 (2013 Rules). The court observed that the 2013 Rules distinguish between...
The Bombay High Court recently held that quarry permits for extraction and removal of minor minerals from a specified area for a temporary period do not require prior submission of environmental clearance certificate under Rule 59 of Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 (2013 Rules).
The court observed that the 2013 Rules distinguish between quarry lease and quarry permit. "while quarry lease is for a longer period time, with wider scope of operations, the quarry permit is for a very short and temporary period of time, is confined to limited operations and is intended to achieve the object of urgent and immediate need of minor minerals for various developmental works by striking a balance between the need of protection of environment and the need for undertaking developmental works which are in larger public interest", said the court. The court held that this distinguishing feature has a 'rational' and 'proximate' relation with the purpose for which quarry permit is granted.
The court added, "For grant of 'quarry permit' under Rule 59, there is another distinguishing feature from that of 'quarry lease' granted under Chapter II of the Rules, 2013, and it is that there is no requirement of prior submission of environmental clearance certificate".
The division bench of Justice Sunil B. Shukre and Justice Anil L. Pansare set aside directions by the State Government which required prior submission of environment clearance certificate for grant of quarry permits despite there being no such requirement in the 2013 Rules. The court stated that the 2013 rules will prevail over executive instructions of the government.
The petitioners used to get quarry permits under Rule 59 of the 2013 Rules without submitting environmental clearance certificate. The permits were for extraction and removal of minor minerals from the specified area for a temporary period not more than 30 days at a time. However, the Joint Secretary, Revenue and Forest Department on 24 March, 2022 directed that no quarry permit be issued without prior submission of environmental clearance certificate. The petitioners approached the High Court in a writ petition challenging this communication.
The Supreme Court in Deepak Kumar v. State of Haryana had directed the state governments to frame necessary rules under section 15 of the Mines and Minerals Extraction (Development and Regulation) Act, 1957. It gave an interim direction that in the meantime, leases of minor minerals shall be granted by the state governments only after environmental clearance certificates are submitted. Complying with this judgement, state government framed the 2013 Rules.
The state government submitted that the impugned communication has been issued according to directions given by National Green Tribunal in Rajiv Babasaheb Vaman v. Minister of Environment, Forest and Climate Change.
Petitioners submitted that in the 2013 Rules, quarry leases require environmental clearance certificate but there is no such requirement for quarry permits. Further, this executive instruction cannot supersede the rules.
The court noted that according to Chapter II, Rule 11(5) of the 2013 Rules, the environmental clearance certificate must be attached with the application for grant of quarry lease. This rule incorporates the interim direction given by the Supreme Court in Deepak Kumar.
The court said that the issue of exploitation and extraction of minor minerals would be governed by the 2013 Rules as the Apex Court directions were interim to cover the period between the judgement and the notification of the Rules by the state governments.
The court noted that quarry lease is about full exploitation of a minor mineral from searching for it through its excavation and mining to its transportation and includes operations such as mining, quarrying, boring, digging, searching for, winning and transporting. A quarry permit is about obtaining a mined mineral and includes only limited operations like extraction and removal of the environment. Prior submission of environmental clearance certificate is a sine qua non for the grant of quarry lease, the court noted.
The court observed that Chapter II of the 2013 Rules does not refer to quarry permit which is dealt with under Chapter IV of the 2013 Rules. The court noted that Rules 59 and 61 of the 2013 Rules do not require submission of environmental clearance certificate, unlike Rule 11(5).
The court further held that the 2013 Rules are subordinate legislation and would prevail upon any executive instruction. Hence, the state government or any of its officers cannot supersede these Rules. "The only permissible act that can be done by the State Government is that of filling up of the gaps left in the subordinate Legislation by issuing necessary executive instructions", the court added.
In the present case, the State of Maharashtra had clarified on 12 December 2013 that the environmental clearance certificate is not required for quarry permits. However, the state government directed on 24 March 2022 that no quarry permit be issued without prior submission of environmental clearance certificate in view of the directions given by the NGT. The court said this that this direction cannot prevail over Rules 59 and 61 of the 2013 Rules.
The court noted that the NGT was not aware of the 2013 Rules having been framed. The NGT's directions were only in the context of the communication dated 12 December 2013 and not upon considering Rules 59 and 61 of the 2013 Rules. Therefore, this direction would not come in the way of authorities for grant of quarry permits under Rule 59 and 61 of the 2013 Rules, the court said.
The court concluded that the state government couldn't have issued executive instruction contrary to rules 59 and 61 under 2013 rules. Therefore, the court allowed the petitions and set aside the communication dated 24 March 2022 issued by the state government.
Case no. – Writ Petition No. 2153 of 2022
Case title – Orange City Stone Crusher Owners Association v. State of Maharashtra
Citation- 2022 LiveLaw (Bom) 425
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