TMI Blog2011 (7) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... this was the reason for the Durbar to lease out the said land to the project proponent for mining. The village Durbar also felt that in the area unscientific limestone quarrying was going on resulting in loss of revenue both to the State as well as the inhabitants of the village particularly because the said mining was undertaken by unorganized sectors and, thus, it was decided to enter into the lease with the project proponent so that mining could be done on scientific basis. The site was also selected because of easy accessibility by road and less vegetation clearance stood involved. According to the NEHU Report, the site is located in the area on the outskirts of the forest. Validity of ex post facto clearance - The learned Counsel appearing for SAC submitted that the MoEF, as the authority which decides on diversion of forests and which grants environmental clearances, is duty bound to examine the diversion application in the context of the 1988 Policy, particularly, where tropical moist forests are sought to be cleared by the project proponent. According to the learned Counsel, where MoEF grants environmental clearance in ignorance of the existence of a forest due to mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of which refers to economic welfare of the tribals of Village Nongtrai), the polluter pays principle and the intergenerational equity (including the history of limestone mining in the area from 1858 and the prevalent social and customary rights of the natives and tribals). The word development is a relative term. One cannot assume that the tribals are not aware of principles of conservation of forest. In the present case, we are satisfied that limestone mining has been going on for centuries in the area and that it is an activity which is intertwined with the culture and the unique land holding and tenure system of the Nongtrai Village. Therefore, we are satisfied with due diligence exercise undertaken by MoEF in the matter of forest diversion. Thus, our order herein is confined to the facts of this case. Hence, we see no reason to interfere with the decision of MoEF granting site clearance dated 18.6.1999, EIA clearance dated 9.8.2001 read with revised environmental clearance dated 19.4.2010 and Stage-I forest clearance dated 22.4.2010. Accordingly, I.A. No. 1868 of 2007 preferred by M/s. Lafarge stands allowed with no order as to costs. Consequently, I.A. No. 2937 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustainable utilisation, restoration and enhancement of the natural environment. It is this need which led to the enunciation of National Forest Policy dated 7th December, 1988. The principal aim of the Policy was to ensure environmental stability and maintenance of ecological balance. The derivation of direct economic benefit was to be subordinate to the principal aim of the Policy (See para 2.2). Under essentials of forest management it is stipulated that existing forests and forest lands should be fully protected and their productivity improved. It is further stipulated that forest cover should be increased rapidly on hill slopes, in catchment areas and ocean shores. It is further stipulated that diversion of good and productive agricultural lands to forestry should be discouraged in view of the need for increased food production (See para 3.2). Under the Policy a strategy was prescribed vide para 4. The goal is to have a minimum of one-third of the total land area under forest or tree cover. In the hills and in mountains the aim is to maintain two-third of the area under forest or tree cover in order to prevent erosion and land degradation and to ensure the stability of the fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al development should be consistent with the need for conservation of trees and forests. Projects which involve such diversion should at least provide in their investment budget, funds for regeneration/compensatory afforestation. Beneficiaries who are allowed mining and quarrying in forest lands and in lands covered by trees should be required to re-vegetate the area in accordance with forestry practices and, therefore, by para 4.4.2 it is stipulated that no mining lease shall be granted without a proper mine management plan. Under para 4.5 it is stipulated that forest management should take special care for wildlife conservation and consequently forest management plans should include prescriptions for that purpose. Under para 4.6 of the Policy it is stipulated that a primary task of all agencies responsible for forest management shall be to associate the tribals and communities living in such areas in the protection, regeneration and re-development of forests as wells as to provide gainful employment to people living in and around the forest. 3. On 27.1.1994, in exercise of the powers conferred by Section 3(1) read with Clause (v) of Sub-section (2) of Section 3 of the Environm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The public shall be provided access, subject to public interest, to the summary of the EIA report/environment management plan. The clearance granted shall be valid for five years for commencement of the construction or operation of the plant. The monitoring of the implementation of the recommendations and conditions of IAA is also provided for in the said notification vide clause IV. 4. The said notification dated 27.1.1994 stood slightly amended by notification dated 10.4.1997. By the said notification detailed procedure for public hearing has been prescribed. It also prescribes composition of public hearing panels. 5. On 1.9.1997 LMMPL made an application for granting environmental clearance for limestone mining project at Nongtrai, East Khasi Hills District, Meghalaya. The application was made under EIA Notification, 1994. It was made in the form prescribed by the Notification, 1994. 20 copies of Rapid EIA Report (NEHU Report) were also annexed therewith. However, the said proposal dated 1.9.1997 was returned by MoEF vide letter dated 24.10.1997. The reason being that on 10.4.1997, as stated hereinabove, the MoEF had amended the EIA Notification of 1994 making public heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication, a certificate dated 27.8.1997 was annexed. It was issued by Khasi Hills Autonomous District Council, Shillong which council is the constitutional authority under Sixth Schedule of the Constitution. By the said certificate the council specifically stated that it had no objection for mining operation in the area at Nongtrai village since the area does not fall within a forest land. This application for site clearance was allowed by MoEF vide letter dated 18.6.1999 addressed to the Project Proponent. Site clearance was, thus, granted under the 1994 Notification as amended on 4.5.1994 and 10.4.1997 subject to strict compliance of terms and conditions mentioned therein. One of the conditions was that the Project Proponent shall obtain environmental clearance for the proposed limestone mine as per the procedure laid down in the 1994 Notification before taking up developmental work at the site. The said clearance was not to be construed as grant of mining permission. No developmental activity relating to the project was to start prior to environmental clearance. Accordingly, on 17.4.2000, LMMPL made an application for environmental clearance to MoEF in the prescribed form to exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... site. According to the said report the leased area lies on the western side of Umium river valley. It is approachable from Shillong via Mawsynram and Nongtrai villages by motorable road. It is also accessible from Shillong by road via Cherrapunji. According to the report the site is at the Phalngkaruh which originates from the foot hills of the proposed mine site. According to the said report the site is on uneven terrain with a rugged topography. There are heaps of fractured rocks all over the place. It is a rocky region. The site rejects any possibility of natural growth of forest. It is an area of low botanical and floral diversity. It is an area covered with rocks. The area can be termed as a wasteland. 6. On receipt of the application for environmental clearance, certain queries were raised by MoEF with regard to the scope of the site clearance (the original site clearance was for 0.8 million tonnes whereas subsequently that capacity was revised to 2 million tonnes); that, as per this Court's order dated 12.12.1996, forests has to be understood in terms of the dictionary meaning and, accordingly, a certificate was asked for in that regard from local DFO; the effect d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocated within 25 kms. radius from the proposed mine location; that, the mine site is situated in the southern slopes of the Central Plateau of Meghalaya; that, the core area comprising of the mining site consisted of uneven terrain with a rugged Karst topography (see page 484 of Volume III); the minutes of the environmental public hearing dated 3.6.1998 were also annexed; site clearance dated 18.6.1999 granted by MoEF was also annexed; that, a report regarding impact of limestone mining on Nongtrai, Meghalaya on Siltation Process prepared by Center for Study of Man and Environment dated April, 2000 also stood annexed to the clarifications given by LMMPL. We need to comment on that report. Firstly, it indicates that the mining site is located on the southern fringe of the Meghalaya Plateau adjoining the plains of Bangladesh having a rich endowment of high grade limestone. Secondly, it highlights that the site is approachable from Shillong (109 km.) by motorable road via Mawsynram and Nongtrai. Thirdly, it states that on account of dissolution of the limestone, Karst topography has resulted which topography is characterized by caverns and caves which are so prominent that even in 1:5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Government granted permission to transfer the mining lease vide order dated 29.8.2001. Accordingly, a transfer deed stood executed on 28.2.2002 in the prescribed form under Rule 37A of Mineral Concession Rules, 1960. Accordingly, on 30.7.2002, environmental clearance which was earlier granted to LMMPL stood transferred to LUMPL by MoEF. 7. However, vide letter dated 1.6.2006, from Chief Conservator of Forests (C), Shri Khazan Singh, addressed to MoEF it was pointed out that he had visited Limestone Mining Project of M/s. Lafarge when it was found that project had completed developmental works and opening of mine benches had also been accomplished for 7Ha of the mining lease land. According to the said letter the mining lease area around the developed mine benches stood surrounded by thick natural vegetation cover with sizeable number of tall trees. The said vegetation included trees being cleared for developing the mining benches. That the wood obtained from felling of trees was collected by the lessor who were from Nongtrai Village. According to the said letter, for such clearance no permission was taken under Forest (Conservation) Act, 1980 (for short the '1980 Act' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken area; that the mine was operating on forest land without clearance under the 1980 Act; that the area is a natural/virgin forest; that the land belonged to village Durbar of Nongtrai and in the circumstances forest clearance was required to be obtained under the provisions of 1980 Act in terms of the order of the Supreme Court dated 12.12.1996. According to the said letter, there was a clear violation of the 1980 Act. Accordingly, the Chief Conservator of Forests(C) Shri B.N. Jha requested the Government of Meghalaya to stop fresh clearance of vegetation, breaking of land, extension of mining area, removal of felled trees and stoppage of non-forestry activities with immediate effect. A copy of the said letter was also forwarded to MoEF. By letter dated 17.4.2007 addressed by MoEF to Government of Meghalaya a report was asked for indicating justification for continuance of mining by the project proponent within a week failing which MoEF had no option but to direct mine closure. Thereafter response was given by M/s. Lafarge vide letter dated 25.4.2007. However, MoEF, vide letter dated 30.4.2007, directed complete closure of all on going non-forestry activities by M/s. Lafarge in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d programme preferably within 60 days. By letter dated 3.7.2007 addressed by M/s. Lafarge to the MoEF (North-East Region), the regional office of the MoEF, was informed that the project proponent had already applied for forest clearance to the MoEF, New Delhi. 8. On 6.9.2007 CEC submitted its report to this Court saying that the project proponent should have taken permission under the 1980 Act before starting operations in the area. According to CEC this was a typical case where ex-post facto approval under the 1980 Act is sought after the mine has been allowed to operate illegally. Since fait accompli situation arose according to CEC there was no option but to recommend the case for grant of permission for the use of forest land for mining lease, conveyor belt system and associated activities subject to certain conditions mentioned therein. By interim order dated 5.2.2010 M/s. Lafarge was directed to stop all mining activities. On 5.4.2010 a report was submitted by Shri B.N. Jha, Regional Chief Conservator of Forests (C) [also known as High Powered Committee (HPC)]. The report was submitted pursuant to the site inspection carried out by a High Level Committee which also had int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g its proposal for diversion of 116.589 Ha of forest land for Lime Stone Mining in favour of M/s. Lafarge wherein prior approval of Central Government was sought. The said proposal of the State Government was examined by FAC constituted by Central Government under Section 3 of the 1980 Act. Thus, forest clearance was granted by MoEF vide letter dated 22.4.2010 which again stipulated further conditions to be complied with by the project proponent. Accordingly on 26.4.2010 learned AGI submitted before this Court that M/s. Lafarge may be permitted to resume the mining operations subject to compliance of conditions enumerated in the order passed by MoEF on 22.4.2010. However, this Court ordered that before it grants permission to resume the mining operations it was imperative that plans should be drawn up and relevant reports be placed before this Court based on a comprehensive engineering and biological study including assessment of flora and fauna. A study report was submitted by NEHU on June, 2010 in which it has been stated that the forests in the said area can be categorized into tropical moist-deciduous forest, tropical semi-evergreen forest, savanna, subtropical broadleaved fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is solely and entirely on account of bona fide doubt as to the nature and character of the land and /or statutory regime applicable to such projects, no permission should be granted specially to private projects established only for profit where the project presents a 'fait accompli'. The learned Amicus submitted that over the years we find commencement of projects without obtaining prior permission as mandated under Section 2 of the 1980 Act and, when detected, the project proponent(s) falls back on the plea of 'fait accompli'. According to the learned Amicus, time has, therefore, come for this Court not to regularize such projects which are commenced without obtaining prior permission under the 1980 Act except in cases of absolute candor and where the want of permission is solely and entirely based on account of bona fide doubt as to the nature and character of the land and/ or the statutory regime applicable to such projects. According to the learned Amicus, barring the above exceptions, this Court should direct removal of the project and restoration of the environment wherever it is possible or to take over the project to ensure that all gains from such projects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of this Court dated 12.12.1996 and that it does not fall under any notified reserved or protected forests. In the said certificate, it has been further stated that the project site is on Karst topography which supports only a sporadic growth of a few trees shrubs and creepers. Besides the said certificate dated 13.6.2000, the project proponent also seeks to place reliance on letters dated 28.4.1997 and 27.8.1997 addressed by Khasi Hills Autonomous District Council which took the view that the area is a non-forest land. According to the learned Amicus, it is not open to the project proponent to rely upon the certificate of DFO dated 13.6.2000 as the said certificate was given without any intimation to the higher authorities and that an inquiry has been instituted to determine the circumstances in which the certificate was issued by DFO. Learned Amicus further pointed out that the prospecting licence held by the project proponent was allowed to be converted into a mining licence in 1997 which was after the order of the Supreme Court dated 12.12.1996. That apart, there is a special law in the State of Meghalaya, i.e. The United Khasi-Jaintia Hills Autonomous District (Manageme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the environmental clearance dated 9.8.2001. They have also challenged the revised environmental clearance dated 19.04.2010 granted by MoEF as also Stage-I forest clearance dated 22.04.2010 issued by MoEF. 11. According to the learned Counsel, M/s. Lafarge was duty bound to make an honest disclosure of all facts when seeking environmental and forest clearances as it is an express requirement under Clause 4 of the EIA notification 1994. That, where a false information, false data, engineered reports are submitted or factual data is concealed, the application is liable to be rejected, and where granted, it is liable to be revoked. According to SAC, M/s. Lafarge had given an express undertaking in its application for environmental clearance dated 17.4.2000 that if any part of the information submitted was found to be false or misleading the project clearance could be revoked at M/s Lafarge's risk and cost. According to SAC, the region where the mining is taking place and with regard to which permissions were obtained is governed by a specific local Act and Rules framed there under, namely, United Khasi Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the learned Counsel, the environmental clearance dated 9.8.2001 was clearly granted on the basis of false representations made by M/s. Lafarge regarding absence of forests; engineered reports projecting the site as a near wasteland ; and the concealment of factual data available with M/s. Lafarge including the 1997 NEHU Report which showed the subject land as forest land. Thus, according to the learned Counsel, the MoEF ought to revoke the environmental clearance dated 9.8.2001 having regard to Para 4 of the EIA Notification 1994 and inasmuch as the MoEF has failed and neglected to revoke the clearance dated 9.8.2001, this Court may quash the said clearance. According to the learned Counsel, the environmental clearance dated 9.8.2001 is the parent clearance and, consequently, the revised environmental clearance dated 19.10.2010 (the correct date is 19.4.2010) must automatically fall if the parent clearance is quashed. In any event, the learned Counsel submitted that the revised clearance is liable to be set aside since the mandatory procedure of conducting a public consultation had not taken place. According to the learned Counsel, a public consultation is mandatory in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27.8.1997 issued by the Council all of which referred to absence of forest. According to the learned Attorney General at each stage MoEF had raised queries and requisitions and after a thorough probe MoEF gave ultimately Environment Clearance on 19.4.2010 and 22.4.2010 being the Forest Clearance. In this regard it was pointed out by MoEF vide letter dated 24.10.1997 that the EIA Notification 1994 was amended on 10.4.1997 making public hearing mandatory for the development projects listed in Schedule-I of the Notification. Consequently, the proposal required two stage clearance, namely, site as well as project clearance. This is the reason why the project proponent made Site Clearance application on 23.9.1998. Before that the project proponent approached the Meghalaya State Pollution Control Board for consent to establish limestone mining project. Similarly, a public hearing notice was given on 27.4.1998. The public hearing was conducted on 3.6.1998. This was followed by Site Clearance Application dated 23.9.1998. All these steps were taken by M/s. LMMPL, the predecessor of M/s. Lafarge. Even before granting of the Site Clearance on 18.6.1999, a letter dated 8.4.1999 was recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director ZSI). The said Report of January, 2001 extensively dealt with tropical semi-evergreen forest at different elevations. This Report of Dr. Ghosh (Centre for Environment and Development) was placed before the Expert Committee on 7.3.2001. The minutes of the meeting indicate that a video film of the site was also shown. The Report indicates the Karst features, extensive flora and fauna survey carried out by the Centre for Environment and Development in conjunction with the Botanical Survey of India and Zoological Survey of India. After elaborate discussion, the Expert Committee recommended Environmental Clearance of the project once again subject to certain conditions. Even after such recommendation, the MoEF once again wrote to the Chief Conservator of Forest, Meghalaya. This was on 19.4.2001 regarding Environmental Clearance. The Chief Conservator of Forest (Wildlife Division) vide letter dated 1.6.2001 gave his comments as per the annexures which was on the basis of Field Verification Report submitted by DFO, Khasi Hills Wildlife Division, Shillong. According to the Chief Conservator of Forest (Wildlife Division) the project area is sloppy, ending in the nearby plains of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has commercially viable limestone deposit. According to the said report, the land was left unused covered with degraded forests and this was the reason why the Durbar preferred to lease out the site to LMMPL for mining. Other factors responsible for selecting the proposed site were availability of water resource, away from human habitation, closer to the cement plant at Chhatak, easy accessibility by road and minimum damage to the rich biodiversity (see page 19 of the NEHU Report). The learned Counsel submitted that Section 2 of the 1980 Act stipulates prior approval . Thus, prior determination of what constituted forest land is required to be done. This lacuna in the 1980 Act was supplied by the order of this Court dated 12.12.1996 which inter alia provided that every State Government shall first constitute an Expert Committee within one month and based on its recommendations the State Government will identify the land as forest land on the criteria mentioned in the said Order. The learned Counsel also invited our attention to Rule 4 of the Forest (Conservation) Rules, 1981 in which it is stipulated that every State Government seeking prior approval under Section 2 of the 1980 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996 wrote to the Khasi Hills Autonomous District Council that the land in question was reckoned by the State as non-forest land. The Council was asked to inform/ clarify whether the area in question under the mining lease fell on forest land as per the records of the District Council. By letter dated 28.4.1997, the Council informed the State Government that the area in question did not fall on forest lands. Moreover, pursuant to the Order of this Court dated 12.12.1996, the Chairperson of the Expert Committee appointed by the State of Meghalaya also filed the report of the Expert Committee in which it was expressly stated that the mining lease granted by the State Government did not fall on the forest land. Thus, it was under the above circumstances, having regard to the order of this Court dated 12.12.1996, that the State Government was not required to and it did not submit any proposal to the Central Government under Section 2 of the 1980 Act read with Rule 4 of the 1981 Rules as it treated the site in question as a non-forest land. This position has not been disputed by MoEF. Thus, according to the learned Counsel, there was no obligation on the project proponent or on the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was prepared and submitted by M/s. LMMPL for Environmental Clearance to MoEF vide letter dated 1.9.1997; along with the said letter there were several enclosures. One of the enclosures was the NEHU Report, the other was NOC from Khasi Hills Autonomous Council for mining operation in the project area. This letter dated 1.9.1997 was duly acknowledged by MoEF vide its letter dated 24.10.1997. As stated above, in view of the amendment to the Notification of 1994, the project proponent was advised to make a new proposal in two different parts, namely, site clearance and project clearance. Pursuant to the said advice the project proponent preferred Site Clearance Application on 23.9.1998 made to MoEF in which once again the project proponent enclosed maps which were verbatim reproduction of the relevant pages (including maps) in the NEHU Report. MoEF granted Site Clearance on 18.6.1999. Further even the Mining Plan submitted by the project proponent contained a Chapter on Environment Management Plan (EMP) which is a verbatim copy of Chapter 6 of NEHU Report. The said plan was approved by Bureau of Mines. Moreover, in the Sociological and Ecological Impact Assessment Report dated 16.2.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the project proponent and the MoEF were at all relevant times under the bona fide impression that the project site was not forest land; in fact the consistent view of all authorities, including MoEF, was that the project site (mining lease area) was not located on forest land . In this connection our attention was invited to the application dated 23.9.1998 made by M/s. LMMPL to MoEF for Site Clearance, the NOC from KHADC dated 27.8.1997 stating that the project area does not fall within a forest land, grant of Site Clearance on 18.6.1999 by MoEF, application for Environmental Clearance dated 17.4.2000, grant of Environmental Clearance on 9.8.2001. All these documents and series of letters exchanged during the relevant time, according to the learned Counsel, indicate that both the project proponent and MoEF were at all relevant times under the bona fide impression that the project site (mining lease area) was not located on forest land. 17. Learned Counsel further submitted that after stop mining order dated 30.4.2007 and the direction of CCF(C) of even date to obtain Forest Clearance under Section 2 of the 1980 Act, an application was filed by M/s. Lafarge on 3.5.2010 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of across-the-board principle as it would depend on the facts of each case whether diversion in a given case should be permitted or not, barring No Go areas (whose identification would again depend on undertaking of due diligence exercise). In such cases, the Margin of Appreciation Doctrine would apply. 20. Making these choices necessitates decisions, not only about how risks should be regulated, how much protection is enough, and whether ends served by environmental protection could be pursued more effectively by diverting resources to other uses. Since the nature and degree of environmental risk posed by different activities varies, the implementation of environmental rights and duties require proper decision making based on informed reasons about the ends which may ultimately be pursued, as much as about the means for attaining them. Setting the standards of environmental protection involves mediating conflicting visions of what is of value in human life. (b) Nature of the land 21. In the NEHU Report of June, 1997 (Rapid EIA of Proposed Limestone Mining Project at Nongtrai, Meghalaya), a brief history of limestone mining in Khasi Hills of Meghalaya is spelt out. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate dated 27.8.1997 issued by KHADC, Shillong. This Council is a constitutional authority under Sixth Schedule of the Constitution. As stated above, the limestone bearing area around Nongtrai and Shella falls on the southern fringe of Meghalaya plateau. The site is approachable from Shillong via Mawsynram and Nongtrai villages by a motorable road. The site is also accessible from Shillong by road via Cherrapunji. This road is wide enough for crushers and heavy machines to be brought from Shillong. The site is on the uneven terrain with a rugged topography. (See Rapid EIA Report submitted by ERM India Pvt. Ltd. dated 6.4.2000). According to the said report, the Karst topography of the area supports sporadic growth of a few tree shrubs. According to the NEHU Report of 1997, the site selected for mining has commercially viable limestone deposit. The site was selected after thorough consultation with the concerned village Durbar who is the custodian of the land. The land was left unused covered with degraded forests and this was the reason for the Durbar to lease out the said land to the project proponent for mining. The village Durbar also felt that in the area unscientific limes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy cover mostly sparse. Thus, according to SAC and CEC, the undisputed position emerging from the record that the subject area is covered by a tropical moist forest deserving highest degree of ecological protection ought to have been taken into account by MoEF which was not done at the time of initial clearances dated 18.6.1999 and 9.8.2001. Shri Divan, learned senior counsel appearing for SAC submitted before us that the case in hand essentially deals with the decision making process in relation to the grant of environmental clearance and to test whether the decision making process stood up to judicial review. According to the learned Counsel, the following basic points regarding the legal framework must be kept in view: - From the environmental perspective, in relation to a mining project, there are three main sets of permissions that are required to be obtained: (i) The first set of permissions is at the State level. This set of permissions primarily has to do with pollution. In each State or a group of States, a Pollution Control Board issues consent/ permit. These consents or permits are granted from a pollution perspective. The scope of enquiry is limited to pollution im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... close correct facts or to have regard to environmental issues that may have escaped the attention of the project proponent. According to the learned Counsel, the requirement of public hearing is, thus, mandatory both under the 1994 Notification and the 2006 Notification. That, the requirement for payment of NPV does not automatically mean that environmental clearance is to be granted. 24. We are in full agreement with the legal framework suggested by the learned Counsel for SAC. There is no dispute on that point. The question is confined to the application of the legal framework to the facts of the present case. Can it be said on the above facts that a mis-declaration was wilfully made by M/s. Lafarge or its predecessor (project proponent) while seeking site and environmental clearances? Was there non-application of mind by MoEF in granting such clearances? Was the decision of MoEF based solely on the declarations made by the project proponent(s)? 25. At the outset, one needs to take note of Section 2 of the 1980 Act which stipulates prior approval. That Section refers to restriction on the dereservation of forests or use of forest land for non-forest purpose. It begins with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riate form within the specified period of 90 days from the receipt of the proposal from the User Agency . At this stage, it may be noted that the earlier project proponent in the present case was M/s. LMMPL. That project proponent had obtained EIA clearance given by MoEF dated 9.8.2001 which clearance stood transferred to M/s. Lafarge only on 30.7.2002. While granting environmental clearance dated 9.8.2001 there was an express finding to the effect that no diversion of forest land was involved . In terms of the order of this Court dated 12.12.1996, an Expert Committee was in fact formed by the State of Meghalaya vide notification dated 8.1.1997 with the Principal Chief Conservator of Forests as its Chairman. On 10.2.1997, the State of Meghalaya had addressed a specific letter to the Khasi Hills Autonomous District Council, which as stated above is a Constitutional Authority, stating that the land in question was reckoned as non-forest land and the Council was asked to clarify whether the area in question under the mining lease fell in the forest as per the records of the Council. The Council by its letter dated 28.4.1997 had informed the State Government that the area in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudice to their rights and contentions dated 3.5.2007 be considered by MoEF. Apart from the above circumstances, on 22.4.1998, a notification was issued by the State Pollution Control Board constituting an Environmental Public Hearing Panel to evaluate and assess the documents submitted by M/s. LMMPL. A public notice was also issued in local newspapers on 25.5.1998. The State Pollution Control Board also sent a letter to the Secretary, Shella Village informing him of the date and time of public hearing and accordingly on 3.6.1998, a public hearing did take place. According to the minutes of the meeting, 31 citizens of Shella Nongtrai, Pyrkan attended the hearing. In the hearing, the purpose, objective, composition and procedure of environmental public hearing was discussed. The Headman of Nongtrai was also present. He gave reasons as to why the village Durbar had agreed to the proposed project. The main reason being that the limestone was abundantly available in the area but the same remained unutilized by local villagers themselves due to lack of infrastructure. That, for economic development of the local population, the village Durbar had decided to lease the area required fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Village is about 2200 hectares; that, the said lands fall in two categories, namely, individual ownership lands, and community lands. The management and control of community lands is completely within the jurisdiction of the community. Such community lands in highlands of Khasi Hills are termed as Ri Raid whereas community lands in low-lying areas are termed as Ri Seng. Nongtrai village has about 1300 hectares of community land out of which 900 hectares are limestone bearing land. The manner and method of allocation, use and occupation of the community lands are decided by the Village Durbar. The Village Durbar has granted lease of 100 hectares of community land out of 900 hectares which as stated above is limestone bearing land. It is important to note that apart from the minutes of the meeting held on 3.6.1998 which was attended by the Headman of the Nongtrai Village, a detail written submission has been filed on 13.5.2011 by the Nongtrai Village Durbar fully supporting the impugned project. Thus, this is a unique case from North East. We are fully satisfied that the natives and the indigenous people of Nongtrai Village are fully conscious of their rights and obligations towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the natives and tribals about the Local Act is an important input in the decision making process of granting environmental clearance. It is deeply engrained in the local customary law and usage. It is so understood by the Expert Committee headed by the then Principal Chief Conservator of Forests on the basis of which the State granted the mining lease saying that there was no forest. This certificate was granted by the State in terms of the order of this Court dated 12.12.1996. This understanding also existed in the mind of KHADC when it gave certificates on 28.4.1997, 10.7.1997 and 27.8.1997. In fact this has been the understanding of the Council as is apparent even from its letter dated 18.1.2011 (see page 126 of the affidavit dated 9.3.2011 filed by the State of Meghalaya). As stated above, this view prevailed with the MoEF between 1997 and 2007. The word environment has different facets [see para 127 of the judgment of this Court in Narmada Bachao Andolan (supra)]. On the above facts, it is not possible for us to hold that the decision to grant ex post facto clearances stood vitiated on account of non-application of mind or on account of suppression of material facts by M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance. With that application, the then project proponent submitted the NEHU Report of 1997. However, in the mean time there was an amendment to the EIA Notification of 1994. That amendment took place on 10.4.1997 by which two stage clearances were required to be obtained, namely, site clearance and project clearance. Therefore, immediately MoEF returned the application to the project proponent asking it to submit applications for site clearance as well as for project clearance. Similarly, although the then project proponent had made site clearance application which fulfilled the 1994 Notification (as amended), the MoEF gave site clearance on 18.6.1999 with additional conditions. Similarly, despite the project proponent making application for environmental clearance on 17.4.2000 enclosing Rapid EIA prepared by ERM India Pvt. Ltd. referring to absence of forest, the MoEF asked project proponent to obtain certificate of DFO in terms of the definition of the word forest as laid down in the order of this Court dated 12.12.1996. Similarly, despite the certificate given by DFO on 13.6.2000 stating that the proposed mining site is not a forest area, the MoEF sought further details i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter dated 11.5.2007, the Principal Chief Conservator of Forests states that though the site falls in the forest as pointed out by Shri Khazan Singh, the Chief Conservator of Forests (C) vide letter dated 1.6.2006, still it is not the fault of M/s. Lafarge. Thus, under the above circumstances, we are satisfied that the parameters of intergenerational equity are satisfied and no reasonable person can say that the impugned decision to grant Stage - I forest clearance and revised environmental clearance stood vitiated on account of non-application of mind by MoEF. On the contrary, the facts indicate that the MoEF has been diligent. That, MoEF has taken requisite care and caution to protect the environment and in the circumstances, we uphold the stage-I forest clearance and the revised environmental clearance granted by MoEF. 27. Before concluding, we would like to refer to our order dated 12.4.2010 which recites agreed conditions between the parties which conditions are imposed by this Court in addition to the conditions laid down by MoEF. These agreed conditions incorporated in our order dated 12.4.2010 are in terms of our judgment in T.N. Godavarman Thirumulpad v. Union of India ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ambient Air Quality Standards. (d) It shall take steps to construct a Sewage Treatment Plant and Effluent Treatment Plant. (e) It shall discontinue any agreement for procuring limestone on the basis of disorganized and unscientific and ecologically unsustainable mining in the area. (f) It shall prepare a comprehensive forest rehabilitation and conservation plan covering the project as well as the surrounding area. (g) It shall prepare a comprehensive Biodiversity Management Plan to mitigate the possible impacts of mining on the surrounding forest and wildlife. (h) It shall maintain a strip of at least 100 meter of forest area on the boundary of mining area as a green belt. 6. The MoEF shall take a final decision under the Forest Conservation Act, 1980 for the revised environmental clearance for diversion of 116 hectares of forest land, taking into consideration all the conditions stipulated hereinabove and it may impose such further conditions as it may deem proper. List on 26.04.2010 at 2.00 p.m. 28. This order indicates the benefit which will accrue to the natives and residents of the Nongtrai Village. The site covers 100 hectare required for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illage Durbar of Nongtrai (including their understanding of the word forest and the balance between environment and economic sustainability), their participation in the decision-making process, the topography and connectivity of the site to Shillong, the letter dated 11.5.2007 of the Principal Chief Conservator of Forests and the report of Shri B.N. Jha dated 5.4.2010 (HPC) (each one of which refers to economic welfare of the tribals of Village Nongtrai), the polluter pays principle and the intergenerational equity (including the history of limestone mining in the area from 1858 and the prevalent social and customary rights of the natives and tribals). The word development is a relative term. One cannot assume that the tribals are not aware of principles of conservation of forest. In the present case, we are satisfied that limestone mining has been going on for centuries in the area and that it is an activity which is intertwined with the culture and the unique land holding and tenure system of the Nongtrai Village. On the facts of this case, we are satisfied with due diligence exercise undertaken by MoEF in the matter of forest diversion. Thus, our order herein is confined to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. The basic objectives of the National Forest Policy, 1988 include positive and pro-active steps to be taken. These include maintenance of environmental stability through preservation, restoration of ecological balance that has been adversely disturbed by serious depletion of forest, conservation of natural heritage of the country by preserving the remaining natural forests with the vast variety of flora and fauna, checking soil erosion and denudation in the catchment areas, checking the extension of sand-dunes, increasing the forest/ tree cover in the country and encouraging efficient utilization of forest produce and maximizing substitution of wood. Thus, we are of the view that under Section 3(3) of the Environment (Protection) Act, 1986, the Central Government should appoint a National Regulator for appraising projects, enforcing environmental conditions for approvals and to impose penalties on polluters. There is one more reason for having a regulatory mechanism in place. Identification of an area as forest area is solely based on the Declaration to be filed by the User Agency (project proponent). The project proponent under the existing dispensation is required to underta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fices of the Ministry from six presently located at Shillong, Bhubaneswar, Lucknow, Chandigarh, Bhopal and Bangalore to at least ten by opening at least four new Regional Offices at the locations to be decided in consultation with the State/UT Governments to facilitate more frequent inspections and in-depth scrutiny and appraisal of the proposals. (vi) Constitution of Regional Empowered Committee, under the Chairmanship of the concerned Chief Conservator of Forests (Central) and having Conservator of Forests (Central) and three non-official members to be selected from the eminent experts in forestry and allied disciplines as its members, at each of the Regional Offices of the MoEF, to facilitate detailed/in-depth scrutiny of the proposals involving diversion of forest area more than 5 hectares and up to 40 hectares and all proposals relating to mining and encroachments up to 40 hectares. (vii)Creation and regular updating of a GIS based decision support database, tentatively containing inter-alia the district-wise details of the location and boundary of (i) each plot of land that may be defined as forest for the purpose of the Forest (Conservation) Act, 1980; (ii) the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y each State/UT Govt. in compliance of this Court's order dated 12.12.1996 wherein inter-alia each State/UT Government was directed to constitute an Expert Committee to identify the areas which are forests irrespective of whether they are so notified, recognized or classified under any law, and irrespective of the land of such forest and the areas which were earlier forests but stand degraded, denuded and cleared, culminating in preparation of Geo-referenced district forest-maps containing the details of the location and boundary of each plot of land that may be defined as forest for the purpose of the Forest (Conservation) Act, 1980. (xiii) Incorporating appropriate safeguards in the Environment Clearance process to eliminate chance of the grant of Environment Clearance to projects involving diversion of forest land by considering such forest land as non-forest, a flow chart depicting, the tentative nature and manner of incorporating the proposed safeguards, to be finalized after consultation with the State/UT Governments. (xiv) The public consultation or public hearing as it is commonly known, is a mandatory requirement of the environment clearance process a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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