Thursday, March 7, 2024

Amendment to Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules set aside: Chief Justice bench, Patna High Court

Drawing on the principle of ejusdem generis and the principle of a delegate being prevented from further delegation, Patna High Court's bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar has set aside the  amendment to Rule-38(3) of the Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019 in Abhay Kumar v. Union of India. The Court also set aside delegation of power to exempt given to the State by Clause-13 of Appendix-IX under Environment Impact Assessment Notification, 2006. The judgement was authored by Chief Justice K. Vinod Chandran. 

Bihar State Pollution Control Board (BSPCB) failed to persuade the Court to allow it to absolve the brick-kilns from getting environmental clearance. BSPCB's stance makes it a pollution abetter, and not a pollution controller.

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'."

The petitioner was aggrieved with a 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.

Notably, Section 4 of the Mines and Mineral (Development and Regulation) Act, 1957 (MMDR Act) states that any person undertaking reconnaissance, prospecting or mining operation in any area shall do so only with a reconnaissance permit, a prospecting license or a mining lease granted under the Act and the Rules made there under. Section 15 of the MMDR Act confers power on the State Government to make Rules with respect to the grant of quarry leases/mining leases and other mineral concessions. It is also pertinent that Section 14 of the MMDR Act as it earlier stood excluded Sections 4 to 13 from application to minor minerals and the same was amended with effect from 1986 by excluding only Sections 5 to 13. Hence Section 4 would be applicable even for minor minerals.

It is noteworthy that the Mines Act, 1952 and the MMDR Act are complementary enactments and one does not exclude the other. Any activity carried on involving underground excavation, including an open cast working, is brought under the Mines Act, as a ‘mine’ and there is no separate definition of ‘mine’ under the MMDR Act. 

But Supreme Court has held that despite no activities being carried on underground even an open cast working is defined under the Mines Act in Bhagwan Dass v. State of Uttar Pradesh (1976), Sri Tarkeshwar Sio Thakur Jiu v. Dar Dass Dey & Co. (1979). The Court relied on these judgements. 

The Court's order records that the State Government has been conferred with the power to make rules in
respect of minor minerals under Section 15 of the Act. Section 15 does not grant any power to the State Government to exempt any activity which involves minor mineral quarrying; from the requirement of a permit, license or lease." The State framing rules under Section 15 of the MMDR Act cannot altogether exempt a mining activity from being carried out without permit, license or lease. The State has under Section-15 of the MMDR Act brought out the Bihar Minor Mineral Concession Rules, 1972 and the Bihar Bricks Supplies and Price Control Act, 1984 along with other rules which regulate the policy of mining within the State; which cannot and do not provide for an exemption from the rigours of the MMDR Act. The subject notifications brought in by the Union Government and the State are not under the MMDR Act and we dealt with the said enactment only to emphasize that the MMDR Act read with the Mines Act require a permit even in the case of brick-kilns, where there is extraction of clay.

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