‘Illegal mining direct assault on ecological balance’
*Writ powers can’t be used to defeat statutory mandates
Mohinder Verma
JAMMU, Apr 29: In a significant judgment spanning legal, constitutional and environmental dimensions, the High Court of Jammu & Kashmir and Ladakh has held that mere ownership of land and long standing practice don’t create any vested right to extract minerals and no such extraction can be undertaken without a valid statutory permission. Further, the State action restraining such activities is legally justified and does not infringe the fundamental right to carry on livelihood.
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The judgment was delivered by Justice Wasim Sadiq Nargal in a petition filed by the inhabitants of village Pariswani in Baramulla district, who had submitted that proprietary rights over the land, which has subsequently converted into Nallah due to floods, together with the past practice of extraction of minor minerals confer upon them a vested, continuing and enforceable right to carry on such activity.
After hearing both sides, the High Court framed four critical issues— whether ownership or past practice creates a right to extract minerals; whether mining can be carried out without statutory permission; whether restrictions violate Article 19(1)(g) and whether the court can direct authorities to allow extraction or accept royalty.
“Minerals do not constitute part of the attributes of proprietary rights in land and the right to extract the same cannot be claimed as an incident of ownership of the land. Mere ownership does not ipso facto confer any right to extract or exploit the minerals beneath”, the High Court said, adding “the right to undertake such activity is not inherent but is subject to a comprehensive statutory regime enacted in public interest, keeping in view the need for regulated and scientific exploitation of natural resources”.
Declaring the petitioners’ argument as fundamentally misconceived, the High Court observed, “minerals are regarded as national assets and natural resources, the regulation and exploitation whereof is controlled by the State in trust for the people”, adding “extraction of minerals is subject to statutory regulation under the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules framed there-under”.
“The plea of the petitioners that their proprietary land has now become part of a Nallah also does not advance their case. Once the land assumes the character of a natural watercourse or Nallah, it acquires public significance beyond private ownership. Such natural resources are subject to environmental regulation and public trust obligations”, the High Court further said.
Invoking constitutional principles, the High Court emphasized: “Natural resources such as minerals, rivers, forests and Nallahs are not private commodities but collective assets belonging to the people. The State holds them only as a trustee and is under a legal and moral obligation to protect, preserve and regulate their use in public interest and for future generations. Mere long-standing extraction or payment of royalty cannot create an enforceable right to exploit such resources, particularly where environmental balance and ecological sustainability are at stake”.
On the legality of extraction, the High Court held that the Mines and Minerals (Development and Regulation) Act, 1957 imposes an absolute prohibition. It observed that no person shall undertake mining operations except under a mineral concession and no person shall transport or store any mineral otherwise than in accordance with the provisions of this Act.
The High Court stressed that the language in Section 4 is mandatory and leaves no scope for any exception based on personal hardship, local practice proprietary rights or livelihood concerns. “In the absence of any valid mineral concession their act cannot be sustained in the eyes of law. Such conduct clearly falls within the ambit of illegal mining”, Justice Nargal said.
The High Court also highlighted environmental concerns in strong terms and said, “minor minerals are not minor in their environmental consequences, their impact is often grave and far reaching”. The Supreme Court has rightly emphasized that such activities cannot be left to unchecked private exploitation and must operate only within a strict statutory and environmental framework, the High Court added.
Rejecting the plea under Article 19(1)(g), the High Court held, “undoubtedly this Article guarantees to every citizen the right to practice any profession or to carry on any occupation, trade or business. However, such right is not absolute”.
“Article 19(6) expressly permits the State to impose reasonable restrictions in the interest of the general public. Activities involving exploitation of natural resources, particularly mining operations, fall squarely within the sphere of regulated trade and are subject to strict statutory control”, the High Court said, adding “mining is not an ordinary commercial activity. It directly impacts environment, ecology, groundwater, river systems, biodiversity and public revenue”.
On State action, the High Court held that the respondents have merely enforced the statutory provisions and prevented unauthorized mining. “The seizure of vehicles and imposition of penalties are measures contemplated under law”, it added.
On whether it could grant relief, the High Court categorically refused and said, “a writ of mandamus cannot be issued to compel an authority to act contrary to law, ignore statutory provisions or bypass mandatory legal requirements”.
“The petitioners’ prayer for acceptance of royalty is equally misconceived. Acceptance of royalty is not an independent right. Royalty is merely a statutory consequence flowing from a valid grant of mining permission. It cannot precede or replace the legal requirement of obtaining a concession”, Justice Nargal said.
The High Court gave significant weight to environmental protection, observing: “A Nallah is not merely a source of sand and stones, it is a living ecological asset and integral component of environmental balance. Unregulated mining from a Nullah results in deepening of the riverbed, destabilization of banks, erosion of adjoining land and ultimately increases the risk of floods and landslides”.
Concluding the case, the High Court held that the petitioners have failed to establish any enforceable legal or fundamental right. Accordingly, the writ petition was dismissed as misconceived and without any legal basis.
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