K. Vinod Chandran, CJ. – The petitioner in the above case, which is filed as a public interest litigation, is aggrieved with the notification brought out at Annexure-2, 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.

2. Shri Abhinav Shrivastava, learned counsel for the petitioner, specifically pointed out Annexure-1 notification issued by the Ministry of Environment, Forest and Climate Change (For brevity ‘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.

3. 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-P/4 which has spoken of preservation of top soil, which is to maintain the fertility of the soil, which objective would be defeated and frustrated, if rampant brick-kilns are brought into operation.

4. Shri Abhimanyu Singh, learned 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.

5. The learned Government Advocate specifically points to the notification issued by the MoEF&CC, prior to Annexure-4, wherein Sl. No. 13 had required an approval from the Central Government before the State declares 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.

6. By Section 4 of the Mines and Mineral (Development and Regulation) Act, 1957 (For brevity ‘MMDR Act), 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.

7. 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