Hon'ble Attau Rahman Masoodi,J.
This writ petition has been filed for the following relives:-
(a)To issue a writ, order or direction in the nature of Mandamus commanding and directing the opposite parties nos. 6 and 7 to entertain the applications of the petitioners for issuance of Earth Extraction Permits and to grant them such Permits and further directing the Opp. Parties not to create any hurdle and obstacle in running of Brick Kilns by the petitioners.
(b) To award the cost of the petition in favour of the petitioners.
(c) To issue any other writ, order or direction in the nature and manner which this Hon'ble Court deems fit and proper in the circumstances of the petitioners' case.
The petitioners before us are forty two brick kiln owners of the districts of Faizabad and Ambedkar Nagar who contend that they have valid licences from the local authority for running their brick-kilns but they are unable to operate their brick-kilns on account of the impediment which has been created due to the non functioning of the Committees that have been set up for the purpose of giving environmental clearance in terms of the notification issued by the Ministry of Environment, Forest & Climate Change Impact Assessment Division dated 15.01.2016 under the provisions of the Environment Protection Act 1986.
This petition was entertained by us and we had called upon the learned counsel for the Union of India as well as the State Government to inform the Court by the status of the functioning of the Committees and the process which is to be adopted for the purpose of consideration of the status of operation of such brick kilns which are already operating in the current season 2015-2016.
The grievance of the petitioners is primarily two folds;
Firstly that no Committee has been constituted that may be competent under the said notifications dated 15.01.2016 and 20.01.2016 to grant any such clearance and secondly in spite of the request of the State Government vide letter dated 05.02.2016 the Central Government had failed to give any concurrence for such exemption as claimed by the petitioners. Other issues were also raised but on the aforesaid arguments having been advanced, we had passed orders calling upon the respondents to assist the Court along with the action taken in such matters by the Central Government as well as by the State Government.
The order passed by us on 18.03.2016 is extracted herein under:-
The matter was heard yesterday when Dr. L. P. Misra addressed the Court on behalf of the petitioners and the Court was assisted by Mr. S. B. Pandey, learned Assistant Solicitor General of India on behalf of the Union of India and Sri H. P. Srivastava, learned Additional Chief Standing Counsel for the respondent Nos.2 to 9.
The petitioners before us are brick-kiln owners engaged in the business of manufacturing and selling bricks. Their prayer before us is for a Mandamus to the respondent Nos.6 and 7 respectively for entertaining their applications and grant of Earth Extraction Permits with a further relief that no obstruction may be caused in such activities that is necessary for the purpose of providing clay bricks for being baked in the brick-kilns the ultimate product whereof are baked bricks.
The background in which the present petition has been filed is that on account of the notifications issued by the Ministry of Environment, Forest and Climate Change, New Delhi followed by such notifications and queries raised by the State Government, the petitioners are now facing almost total prohibition in their business of manufacturing bricks and as such, the notifications deserve to be considered in the light of the existing problems of the petitioners, namely, that under the said notifications, the committees in order to assess the environmental impact have not yet been constituted and in the absence of the machinery and the procedure so prescribed in law, the business of the petitioners which is almost seasonal should not be impeded. The petitioners therefore seek permission to run their brick-kilns as they are valid license holders.
Dr. Misra submits that the business of manufacturing bricks continues before the rainy season begins in the State of Uttar Pradesh, approximately, upto 30th of June each year which is the normal season preceding the rainy season, and if they are not granted permits for running, the petitioners will be unable to operate their brick-kilns in the absence of raw material and thus, they would have nothing for sale in the market.
This inaction on the part of the respondents and the impasse created by the non-constitution of the statutory committees, therefore, would violate their fundamental rights of carrying business and hence, appropriate directions should be issued in this regard.
The second contention of Dr. Misra is that it is not only the stoppage of manufacturing of bricks which is the outcome of such inaction, but it is also stopping and impeding the development work the foundation whereof are bricks. He further submits that such raw material which is necessary for general development particularly relating to constructions whether it be roads, houses or government buildings would all come to a standstill and would be indefinitely prolonged in the absence of any ready alternative arrangements for execution of developmental work.
The third contention of Dr. Misra is that it is not only the impediment caused in development, but it has also resulted in loss of immense employment inasmuch as the labour work employed in brick-kilns would be unable to get any alternative employment and facing this situation, the broader dimension that would affect the industry is unemployment.
Dr. Misra then contends that the rules, regulations and notifications issued by the Ministry of Environment may have a binding effect keeping in view they are a part of subordinate legislation by the Central Government, but at the same time, certain concessions are available for activities to be carried on including mining with the permission of the Central Government. To that extent, the State Government has already dispatched a letter dated 5.2.2016 where this situation has been explained by the State Government yet the Central Government has not taken any steps so far to remedy the same.
He has further invited the attention of the Court to the communication of the State Government, where all the Divisional Commissioners and the District Magistrates have been called upon to enumerate the possibilities of implementing the directions issued by the Central Government where certain impediments have been indicated. It is urged that the process is still on and the District Level Impact Committee particularly in the district of Faizabad has not yet been constituted. He therefore submits that if the committee itself has not been constituted, the issue of assessing the environmental impact also does not arise which directly affects the grant of permits to the petitioners for carrying out mining work in order to supply raw material to the brick-kilns.
It has also been urged that the very constitution of the committee as envisaged in the notification is such that it requires placement of experts and also the terms and conditions of their functioning which exercise also has not been undertaken so far and consequently on account of such inaction, the petitioners cannot be made to suffer and face closure of their business. He further submits that appropriate directions should be issued in order to enable the petitioners to operate their brick-kilns and other related activities at least till any such exercise is undertaken under the law and notification so enforced which has yet not been implemented.
Replying to the said contentions, the learned Additional Chief Standing Counsel informs that in eight districts, such committees have been formed in order to enable the statutory committees to assess the impact of environment before granting such permits. He submits that such committee has already been constituted so far as the district of Ambedkar Nagar is concerned, but the same is in the process of being constituted in district Faizabad. The process is likely to be concluded soon. The committee would become functional where the applications filed by the petitioners can be assessed.
Learned counsel for the Union of India has also addressed the Court and urged that such directions can only be permitted now under the statutory provisions existing under the notifications issued by the Government of India which have to be complied with by the State Government and no such activity can be permitted in violation thereof. He however prays for time to obtain instructions and file an affidavit in this regard.
We have considered the aforesaid submissions raised and from the facts that are borne on record, it appears that the non-constitution of the committees has resulted in delay of processing of applications. The issue of assessment and environmental impact is a subject clearly within the scope and powers of the rules, regulations and notifications which have been framed for the said purpose, and which are not under challenge. A Mandamus can issue only to abide by law and not in violation thereof. If there is any inaction on the part of the respondents and there is a statutory obligation to be discharged, then a Mandamus can issue calling upon the functionaries to discharge their obligations in law.
The fact that the committee has been constituted in district Ambedkar Nagar has been clearly stated by the learned Additional Chief Standing Counsel but so far the district Faizabad is concerned, the same is under process of being constituted. In this background, the State Government has already sent a letter of 5.2.2016 to the Central Government indicating the extent of problems that are to be faced and therefore, certain suggestions have been made in relation to permission of mining activities particularly with regard to an area less than 5 hectares.
In the above background, we direct the respondent No.1 to forthwith consider the letter sent by the State Government on 5.2.2016 and take a decision thereon and indicate it to the State Government within three weeks.
The State Government is hereby directed to complete the process of constitution of committees particularly in the district of Faizabad, within the said period and accordingly, give an opportunity to the petitioners for filing of their applications and processing thereof in terms of the rules and regulations as referred to here-in-above.
The question of allowing the operation of brick-kilns would therefore be subject to any further assessment on a response made by the Government of India to the State Government as referred here-in-above and also the assessment of the Impact Assessment Committee at the district level which is yet to be constituted in the district of Faizabad.
So far as district Ambedkar Nagar is concerned, since the Committee is said to have been constituted, we direct the District Magistrate, Ambedkar Nagar to place a copy of this order before the said Committee which shall first proceed to observe its own proper constitution in accordance with the notifications issued by the Government of India and if the same is in order, shall proceed with the disposal of the applications including those of the petitioners who belong to the district of Ambedkar Nagar. The outcome of such exercise shall be made available to this Court by the next date fixed after three weeks.
List on 11.4.2016.
Let a copy of this order be supplied to the learned Counsel for the Union of India and the learned Standing Counsel for compliance.
The matter was taken up on 04.05.2016 when again an adjournment was sought by the respondents for complying with the aforesaid directions. Today, when the matter has been taken up Sri H.L.Verma learned counsel for the Union of India has produced the following communication from the Ministry of Environment, Forest and Climate Change Impact Assessment Division dated 06.05.2016. The aforesaid official communication has been dispatched to the Principal Secretary Mines and Geology, Government of U.P., Lucknow.
F. No. Z-11013/11/2016-IA-II(M) Government of India Ministry of Environment, Forest & Climate Change Impact Assessment Division 3rd Floor, Vayu Wing, Indira Paryavaran Bhawan, Jorbagh Road, Aliganj, New Delhi- 110003 Dated: 06th May 2016 To Dr. Gurdeep Singh Principal Secretary Mines and Geology, Government of Uttar Pradesh, Lucknow.
The Honorable High Court of Allahabad at Lucknow Bench in W.P. No. 4992/2016(MB) has ordered on 18-03-2016 calling upon the Central Government to consider the letter dated 05-02-2016 of the State Government of Uttar Pradesh and to take decision thereon and inform the State Government within three weeks. Hon'ble Court further in its order dated 04-05-2016 has allowed time till 09-05-2016 for communication the decision.
The Government of Uttar Pradesh vide Letter Refernce No. 633/86-2016/1(1993) dated 15.02.2016 from Chief Secretary, Government of Uttar Pradesh and 379/86/2016/1(216)1993 dated 05.02.2016 from Principal Secretary, Mines & Geology, Goverment of Uttar Pradesh has made request for exemption from environment clearance. The communications requests for the exemption of Brick Earth Mining from the purview of Environmental Clearance in view of the entry 11 of the Appendix IX (which lists the exemption of certain cases from the requirement of environmental clearance) of the EIA Amendment Notification dated 15-01-2016. The Provision (entry 11 of Appendix IX of notification dated 15.01.2016) states that "Action declared by the State Government under legislation or rules as Non-Mining activity with concurrence of the Ministry of Environment Forest & Climate Change, Government of India."
The State Government of Uttar Pradesh amended the U.P. Minor Minerals (Concession) Rules 1963 on 22.10.2014 with regard to the exemtion for Brick Earth Mining stating that Brick Earth Mining for 2 meter depth manually should not be treated as mining operation.
The above amendments made by the Government of Uttar Pradesh waschallenged in the NGT Principal Bench at New Delhi (OA 328,228,353,348,351,350,349 of 2013 & MA 767 of 2014). The NGT in its order dated 14.01.2015 has held that these amendments of the Government of Uttar Pradesh are not in conformity with the directions of the Hon'ble Supreme Court in the case of Deepak Kumar Vs State of Haryana. The above order of NGT has been challenged in the Hon'ble Supreme Court, where case is still sub-judice.
The Ministry of Mines, Government of India vide letter No. 16/180/2015-M.VI dated 18.04.2016 on the same subjecthas communicated the following:
" An activity undertaken specifically for winning of minerals is defined as "Mining operation" in section 3(d) of the MMDR Act, 1957. Section 3(d) of MMDR Act, 1957 states:-
"3(d) mining operations" means any operations undertaken for the purpose of winning any mineral."
The exemption given should not be applicable in cases where the activity is undertaken per se with the objective if winning of mineral. More importantly, the scale of operations and the purpose for which the activity is undertaken should be the guiding factor while determining whether the said activity needs to be exempted from EC. For ex. mining 'brick earth' for making bricks is not an activity which should be given exemption from obtaining EC.
Amendment of EIA Notification 2006 provides for an easier process for grant of EC. For, minor minerals including sand and gravel mining lease of area up to 5 hectare the appraisal and grant of EC will be done by DEIAA headed by DC/DM. The Ministry of Mines has been all along been striving to have such a simpler process for grant of EC for minor minerals. Such a process now finally in place would suffice to mitigate the problems being faced in this regard. To stretch the exemption clause to its widest extent to include an activity which entails per se winning of minerals for commercial interests would not be correct.
The specific issue of the problems faced in availability of "Brick Earth" and "Ordinary Earth" have been examined in details in the Ministry of Mines in the past. The concerns of the Ministry in this regard, along with suggestions for solving the problems have been communicated to MoEFCC. Specifically, the Ministry of Mines vide its OM No. 16.10.2013-M. VI dated 30.04.2014 suggested that since the root of the problems is the cumbersome process and delays in obtaining ECs, MoEF could address the issue by simplifying and streamlining procedures. MoEF was requested to constitute adequate numbers of authorities, as provided for under section 3 of EP Act, for granting ECs through a simple, transparent, streamlined and time-bound process. MoEF was also requested to consider delegation of powers to the State Governments for granting ECs this is definitely feasible under section 23 of EP Act."
The Ministry of Environment, Forest and Climate Change has amended the Environment Impact Assessment Notification, 2006, vide SO No. 141(E) on 15.01.2016 and vide SO No. 190(E) dated 20.01.2016 (Copy enclosed) for grant of EC for mining minerals with special focus on sustainable sand mining. The Ministry delegated the Authority of Environmental Clearance up to 5 hectare of individual mining lease of minor minerals and 25 hectares in clusters to the District Environment Impact Assessment Authority (DEIAA) headed by the District Magistrate/ District Collector. It is submitted that the process of issue of the Environmental Clearance has been simplified and with the notification No. S.O. 190 (E) dated 20.01.2016 in every district DEIAA and District Expert Appraisal Committee (DEAC) has also been constituted. So as required the streamlining of the process for grant of EC for mining of minor minerals and delegation of this authority at district level has been done which can address this issue.
In view of above, the undersigned is directed to communicate that the State Government is advised to operationalise the above said notification dated 15.01.2016 and 20.01.2016 effectively and in a time bound manner which can address the issue. Moreover, the matter is also sub judice.
Yours faithfully, (Dr. U. Sridharan) Director(s) Encl: as above Learned Additional Chief Standing Counsel has produced the order of the District Magistrate, Faizabad whereby the aforesaid two Committees namely the District Environment Impact Assessment Authorities and the District Expert Appraisal Committee have both been set up the office memorandum dated 07.04.2016 is extracted herein under:-
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MWk0 v'kksd 'kqDyk] ,e0ch0 foHkkx] MWk0 jke euksgj yksfg;k vo/k fo'ofo|ky;] QStkckn lnL;
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ftyk [kku vf/[email protected] [kuu fujh{kd] QStkckn lnL; lfpo mijksDr lfefr }kjk i;kZoj.k] ou ,oa tyok;q ifjorZu ea=ky; Hkkjr ljdkj dh vf/klwpuk 125 fnukad 15-01-2016 ,oa vf/klwpuk la0 166 fnukad 20-01-2016 esa fn;s x;s funsZ'kksa ds vuqlkj [k&2 izoxZ dh 5 gs0 ls de ;k mlds cjkcj y?kq [kfut dh [kuu lEcU/kh ifj;kstukvksa ds fy, i;kZoj.k vukifRr fuxZr fd;s tkus gsrq xfBr dh tkrh gSA ftykf/kdkjh QStkckn i=kad ,oa fnukad mijksDrA izfrfyfi& fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq iszf"krA 1- eq[; lfpo egksn;] m0iz0 'kklu] y[kuÅA 2- vk;qDr egksn;] QStkckn e.My] QStkcknA 3- fo'ks"k lfpo] i;kZoj.k vuqHkkx] m0iz0 'kklu] y[kuÅA 4- funs'kd HkwrRo ,oa [kfudeZ funs'kky;] m0iz0 y[kuÅA 5- izHkkxh; oukf/kdkjh] fudV nwjn'kZu Hkou] QStkcknA 6- eq[; fpfdRlkf/kdkjh] QStkcknA 7- miftykf/kdkjh] lnj] QStkcknA 8- lgk;d ou laj{kd] jsfr;k ou foHkkx] QStkcknA 9- ofj"B vf/k'kk"kh vfHk;Urk] flapkbZ foHkkx] QStkcknA 10- HkwoSKkfud] {ks=h; vf/kdkjh] HkwrRo ,oa [kfudeZ foHkkx] QStkcknA 11- vfHk;Urk] ftyk iapk;r] QStkcknA 12- {ks=h; vf/kdkjh] m0iz0] iznw"k.k fu;a=.k cksMZ] QStkcknA 13- vf/k'kk"kh vfHk;Urk izkUrh; [k.M] yks0fu0fo] QStkcknA 14- ftyk [kku vf/[email protected][kku fujh{kd] QStkcknA 15- MWk0 tloUr flag] i;kZoj.k foKku foHkkx] MWk0 jke euksgj yksfg;k vo/k fo'ofo|ky;] QStkcknA 16- Mk0 vkse izdk'k jko] lgk;d izk/;kid okfudh foHkkx] vkpk;Z ujsUnznso d`f"k ,oa izkS|ksfxdh fo'ofo|ky;] dqekjxat QStkcknA 17- MWk0 lat; oekZ] lgk;d izk/;kid okfudh foHkkx] vkpk;Z ujsUnznso d`f"k ,oa izkS|ksfxdh fo'ofo|ky;] dqekjxat QStkcknA 18- MWk0 v'kksd 'kqDyk] ,e0ch0 foHkkx] MWk0 jke euksgj yksfg;k vo/k fo'ofo|ky;] QStkckn ftykf/kdkjh QStkckn It is thus clear that the action in relation to the directions issued by this Court have been processed may be not to the satisfaction of the petitioners. A similar exercise has been undertaken for the District of Ambedkarnagar.
A perusal of the communication of the Central Government dated 06.05.2016 is being questioned by the learned counsel for the petitioner on the ground that it refers to the notifications dated 15.01.2016 and 20.01.2016 and purports to delegate the powers exercisable therein on the aforesaid two committees, but according to Dr.L.P.Mishra the power of concurrence is with the Central Government which does not appear to have been exercised while issuing the communication dated 06.05.2016. He further submits that the said notifications which have brought into effect the scheme after the judgment of the National Green Tribunal, does not contemplate any delegation of power of exemption which in no way can be a substitute for concurrence by the Central Government.
We have considered the submissions raised and the communication dated 06.05.2016 proceeds to authorise the District Level Committees to proceed to make an expert assessment on the strength whereof the District Environment Impact Assessment Authority has to proceed to take a decision.
In our considered opinion the aforesaid communication if not expressly then at least impliedly proceeds to take into consideration the communication of the State Government dated 05.02.2016 and authorises the said committees to take a decision with regard to exemption itself. In such circumstances, the said Committees would therefore, be empowered and authorised to take a decision on the strength of the material so collected.
The issue which has been raised by the learned counsel for the petitioner however does require a consideration from another angle namely that the said Committee has been authorised to proceed in a particular way as per the time schedule provided in the notification dated 15.01.2016. The peculiarity in the present case is that after the enforcement of the said scheme on 15.01.2016, these brick kilns were already operating as on the date of the enforcement of the said scheme namely on 15.01.2016. They had already started the manufacturing of bricks and were half way through their business. The enforcement of the scheme, therefore, required the aforesaid Committee to take an appropriate decision in the matter for clearance. The Committees had admittedly in so far as the district of Faizabad and Ambedkarnagar are concerned had not been constituted according to the case of the respondent-State itself till 07.04.2016. Thus the entire season of manufacturing of brick kiln which is almost coming to an end by 30.06.2016 had to pass by in the absence of Constitution of the Committee. The contention of the petitioners, therefore, requires consideration that their continuance should otherwise be acceptable as the very authority which had to grant exemption and clearance had not come into existence till March/ April, 2016.
So far as the district of Ambedkar Nagar is concerned the learned Standing Counsel has produced the communication dated 09.04.2016 intimating that the Committee so constituted has already met and is processing the applications.
We accordingly direct the respondent nos.6 and 7, after taking notice of the communication dated 06.05.2016 extracted herein above, to proceed to take a decision with regard to the clearance/exemption to the petitioners as expeditiously as possible preferably within a period of three weeks from the date of presentation of the certified copy of this order before them and pass necessary orders with regard to the status of the functioning of the petitioners in the session 2015-2016 so as to facilitate the clearance of stocks already available with the petitioners or to continue their running of the brick kiln for the current season.
We make it clear that we have not entered into the legal contentions of the issue of the valid constitution and operational aspects of the committees or the issue of concurrence by the Central Government as raised by the petitioners. The question of raising these issues has to be also left open keeping in view the forum of the National Green Tribunal under the National Green Tribunal Act,2010 particularly Section 14 and Section 18 thereof.
The writ petition is disposed off with the aforesaid directions.
Order Date :- 9.5.2016 Shahnaz