Lafarge Umiam Mining Pvt. Ltd. T.N. Godavarman Thirumulpad Vs. Union of India & Ors.
J U D G M E N T
S. H. KAPADIA, CJI
Facts
1. Lafarge Surma Cement Ltd. (`LSCL' for short) is a company incorporated under the laws of Bangladesh. It has set up a cross-border cement manufacturing project at Chhatak in Bangladesh, which inter-alia has a captive limestone mine of 100Ha located at Phlangkaruh, Nongtrai, East Khasi Hills District in the State of Meghalaya. The mine is leased out in favour of Lafarge Umium Mining Pvt. Ltd. (`LUMPL' for short), which is an incorporated company under the Indian Companies Act, 1956 and which is a wholly owned subsidiary of LSCL. The entire produce of the said mine is used for production of cement at the manufacturing plant at Chhatak, Bangladesh under the agreement/arrangement between Government of India and Government of Bangladesh. There is no other source of limestone for LSCL except for the captive limestone mine situated at Nongtrai, East Khasi Hills District in the State of Meghalaya. The limestone as mined by LUMPL is conveyed from the mine situated at Nongtrai after crushing in a crusher plant. The limestone mined is conveyed by a conveyor belt to LSCL plant in Bangladesh.
2. The National Forest Policy, 1988 stood enunciated pursuant to Resolution No. 13/52-F, dated 12th May 1952 of GOI to be followed in the management of State Forests in India. The said Policy stood enunciated because over the years forests in India had suffered serious depletion due to relentless pressures arising from ever increasing demand for fuel wood, fodder and timber; inadequacy of protection measures; diversion of forest lands to non-forest uses without ensuring compensatory afforestation and essential environmental safeguards; and the tendency to look upon forests as revenue earning resource. Thus, there was a need to review the situation and to evolve, for the future, a strategy of forest conservation including preservation, maintenance, 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 4(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 fragile eco-system. Under para 4.2.3, village and community lands, which is the common feature in north-east regions, not required for other productive uses, should be taken up for development of tree crop and fodder resources and the revenue generated through such programmes should belong to the panchayats where lands are vested in them and in other cases such revenues should be shared with local communities to provide an incentive to them and accordingly land laws should be so modified wherever necessary so as to facilitate and motivate individuals and institutions to undertake tree farming. Vide para 4.3.1, the Policy lays down that schemes and projects which interfere with forests that cover steep slopes, catchment of rivers, lakes and reservoirs, geologically unstable terrain and such other ecologically sensitive areas should be severely restricted.
Tropical rain/moist forests, particularly in areas like Arunachal Pradesh, Kerala, Andaman & Nicobar Islands should be totally safeguarded. No forest should be permitted to be worked without the government having approved the management plan in a prescribed form and in keeping with the National Forest Policy (See para 4.3.2). Under para 4.3.4.2 the rights and concessions from forests should primarily be for the bonafide use of the communities living within and around forest areas, specially the tribals. The Policy recognizes the fact that the life of tribals and other poor people living within and near forests revolves around forests and therefore the Policy stipulates vide para 4.3.4.3 that the rights and concessions enjoyed by such persons should be fully protected and that their domestic requirements of fuel wood, fodder, minor forest produce and construction timber should be the first charge on the forest produce. Para 4.4 deals with diversion of forest lands for non-forest purposes.
Under the said para it is stipulated that forest land or land with tree cover should not be treated merely as a resource readily available to be utilised for various projects, 6but as a national asset which requires to be properly safeguarded for providing sustained benefits to the community. Diversion of forest land for non-forest purpose therefore should be subject to most careful examination by experts from the stand point of social and environmental costs and benefits. Construction of dams and reservoirs, mining and industrial 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 a forestation. 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 7forest 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 Environment (Protection) Act, 1986 (for short "the 1986 Act") read with Rule 5(3)(d) of Environment (Protection) Rules, 1986 the Central Government issued Environmental Impact Assessment Notification whereby it directs that on and from the date of publication of the said Notification in the official gazette expansion or modernization of any activity or a new project listed in Schedule-I shall not be undertaken in India unless it has been accorded environmental clearance by the Central Government in accordance with the procedure specified in the Notification. Under clause (2)(I) any person who desires to undertake any new project listed in Schedule-I shall submit an application to MoEF,
New Delhi in the proforma specified in Schedule-II to be accompanied by a 8project report which shall include EIA report/environment management plan prepared in accordance with the guidelines issued by MoEF. Under clause 2(II) in case of mining as a site specific project the project authority (project proponent) will intimate the location of the project site to the MoEF while initiating any investigation and survey. The MoEF will convey its decision regarding suitability of the proposed site within a specified period. Thus, site clearance will be granted for a sanctioned capacity and shall be valid for five years for commencing construction, operation or mining.
The EIA Report submitted with the application by the project proponent shall be evaluated and assessed by the Impact Assessment Agency, and if deemed necessary, it may consult a Committee of Experts having a composition as specified in Schedule-III. The Impact Assessment Agency (IAA) is MoEF. The Committee of Experts shall have full right of entry and inspection of the site. The IAA shall prepare a set of recommendations based on technical assessment of documents and data, furnished by the project authorities (project proponent), supplemented by data collected during visits to sites which would include interaction with the affected population and environmental groups, if necessary.
The summary of the reports, the recommendations and the conditions, subject to which environmental clearance is given, shall be made available subject to public interest to the concerned parties or environmental groups on request. Comments of the public may be solicited within the specified period by IAA in public hearings arranged for that purpose. The pubic 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 hearing mandatory for the development projects listed in Schedule-I of the Notification. By reason of the said Notification dated 10.4.1997 the then project proponent (M/s. LMMPL) was asked to seek Site Clearance as well as Project Clearance separately.
The Site Clearance proposal was called for through the State level agency dealing with the mines. Accordingly, by application dated 23.9.1998 M/s. LMMPL applied for Site Clearance for Limestone Mining Project at Nongtrai village, East Khasi Hills District, Meghalaya. This application was made in the prescribed form. The application 11indicates that there exists an approach/access road to the site that is described as Shillong-Mawsynram-Nongtrai or Shillong-Cherrapunjee-Shella-Nongtrai. The application further states that all villages represent tribal population. The application further indicates that there exists many private limestone quarries in the area. It is further stated in the application that the topography of the area is hilly. Against the column `Forest Land Involved in the Project' the answer given by the project proponent was "Nil". According to the application the site is not a habitat/corridor for endangered/rare/endemic species.
The source of this information was the NEHU Report. According to the said Report, mining of limestone in Khasi Hills was a source of revenue right from 1858. The limestone deposit in Meghalaya is estimated to be 2165 million tonnes. Exploitation of Nongtrai limestone dates back to 1885. Even today, a number of private parties quarry limestone in this area. An area of 100 hectares stood acquired by LMMPL on lease basis for mining. For that an agreement was signed with Village Durbar.
The limestone bearing area around Nongtrai and Shella falls under the Karst topography. This area falls on 12the southern fringe of the Meghalaya plateau. [See Land Use/ Land Cover Map (March 1997) submitted by Mr. F.S. Nariman, Source: IRS-1C LISS-3 MX DATA, Path & Row: 111-054, Date: March 1997] Karst topography is a landscape formed by the dissolution of a layer(s) of soluble bedrock, usually carbonate rock such as limestone. Karst topography is characterized by limestone caverns carved by groundwater. Karst landscapes are formed by the removal of bedrock (composed in most cases of limestone, gypsum or salt). [See Article from Encyclopedia Britannica by William B. White] Alongwith the application, 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 excavate 2.0 million tonnes per annum of limestone and to transport the same to Chhatak in Bangladesh through belt conveyor (7.2 km long within Indian territory). The mining lease area was indicated to be 100 hectare. The description of land was shown as "barren".
In the application, it was further stated that there is no notified forest land within 25 kms. from the proposed mine. Along with the application vide Annexure A, copy of No Objection Certificate (NOC) for mining operations at the proposed site dated 27.8.1997 stood annexed. That certificate was issued by Khasi Hills Autonomous District 14Council, Shillong, which, as stated above, inter alia states that the Council has no objection for mining operations at Nongtrai Village since the area of 100 hectare does not fall within forest land. Similarly, vide letter dated 6.7.1997 issued by Village Durbar, NOC was granted for withdrawal of water for the project. Vide Annexure G to the application, consent to establish the project stood issued by Meghalaya Pollution Control Board. By Annexure H to the application, minutes of Environmental Public Hearing of the project has been annexed.
These minutes indicates the presence of Addl. Deputy Commissioner, East Khasi Hills District, various government officials including nominees of Forest Conservators and Member Secretary of the Pollution Control Board. According to the Headman of Nongtrai Village, limestone is abundantly available in the area; the same has not been utilized by local villagers due to lack of infrastructure; for economic development, the Village Durbar had decided to lease the area; the environmental implications of the project stood discussed; complaint received from Meghalaya Adventures Association was read out which 15complaint mainly dealt with destruction of caves which stood rebutted by the Headman and, thus, the meeting stood concluded.
All this indicates even public participation and grant of NOCs by various competent authorities. Vide Annexure J to the application for environmental clearance, we find approval being granted under Section 5(1) of the Mines and Minerals (Regulation and Development) Act, 1957. Along with the application for environmental clearance M/s. LMMPL also forwarded to MoEF Rapid EIA of Limestone Mine prepared by Environmental Resources Management India Pvt. Ltd. This report describes in detail the topography of the mining 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 16possibility 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 due to disposal of waste water through soak pit and whether the existing road width was sufficient to carry on heavy equipments for mining purposes.
These were some of the queries/ objections on the basis of which clarification was sought vide letter dated 1.5.2000 by MoEF with regard to environmental clearance under the 1994 notification. As requested by MoEF, the project proponent vide letter dated 11.5.2000 requested the local DFO to issue necessary certificate as called for by MoEF in terms of the order of this Court dated 12.12.1996. 17Accordingly, on 13.6.2000, the DFO forwarded the certificate to the project proponent in respect of Limestone Mining Project at Nongtrai, East Khasi Hills District, Meghalaya by which it was certified that the mining site was not a forest area as per this Court's Order dated 12.12.1996 and nor did it fall under any of the notified reserved or protected forests.
Moreover, the certificate once again reiterated that the site area stood covered with Karst topography which supported only a sporadic growth of a few tree shrubs. Despite such certificate of DFO, MoEF in continuation of their letter dated 1.5.2000 called for additional information inter alia including list of flora and fauna in compliance of Wildlife (Protection) Act, 1972, list of species under the 1972 Act, consent from the State Pollution Control Board for 3000 TPD of limestone, information on ground water potential, information regarding water requirement, etc. Clarifications sought by MoEF vide letters dated 1.5.2000 and 16.6.2000 for environmental clearance were answered by LMMPL vide letter dated 17.8.2000.
As per the said reply, the environmental public hearing notice was published in three newspapers; that, earlier the project proposal was for 0.8 million tonnes per annum but later on based on the increased cement plant production capacity in Bangladesh, it stood increased to 2.0 MTPA; that, earlier the lease period was proposed to be 35 years which stood reduced to 30 years; that, the mine site was on Karst topography which neither MoEF nor the Shella Action Committee ("SAC" for short) denies; that, the equipment to the mine site would be brought through
Guwahati - Shillong - Mawsynram route which contains an established route whose width was 7.5 m wide; that, there was no proposal to cut any trees for the purpose; that, no sanctuary/ national park is located 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 19prepared 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 1:50,000 toposheet, they could be plotted. In other words, the karst features are intimately tied up with hydrological situation. Certain recommendations have been made in the report with regard to possible impact of limestone mining on the Phalangkaruh river system.
Despite clarification, MoEF once again examined the matter through Expert Committee which held its meeting on 19th and 20th October, 2000 in New Delhi under the aegis of MoEF. In the meeting, the project proponent made a presentation on their proposal for production of limestone at the rate of 30,000 tonnes per annum for five years. Certain queries were raised by the Expert Committee on the basis of which once again further clarification was sought by MoEF from LMMPL vide letter dated 6.11.2000. According to the query, the area in question supports diversity of plants and animals. It also represents the remnants of the rapidly vanishing humid rainforest.
That, the area is a home of endemic insectivorous plants, butterflies; All this, according to MoEF, would require a detailed survey of plants and animals to be carried out with the help of BSI and ZSI offices located in Shillong. Accordingly, the project proponent submitted report on Ecological Status Survey prepared by Centre for Environment and Development; report on Afforestation Reclamation Plan, report on Physiography and Hydrogeology of Fugro Milieu Consult B.V. and report on Catchment Area Treatment Plan, vide letter dated 9.2.2001 addressed to MoEF. One more aspect may be noted. These reports were placed before the Expert Committee once again on 7.3.2001.
Even Wild Life Division also gave its report on 1.6.2001. After placement of all these reports, at the end of the day, EIA Clearance was given by MoEF on 9.8.2001 which again contained further conditions which were to operate once the developmental work started. According to the environmental clearance dated 9.8.2001, the total lease area of the mine is 100 hectares; that no diversion of forest land was involved; that the targeted annual production capacity of the mine had to be 2.0 million tonnes and, lastly, certain general conditions were stipulated with regard to steps to be taken during the developmental work.
On EIA Clearance being granted by MoEF, LMMPL became desirous of transferring and assigning the lease in favour of LUMPL having its registered office at Shillong on which the State 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 37-A 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'). Further, even the Rapid EIA report submitted by the project proponent described the land as wasteland though the visit of the Chief Conservator found it to be otherwise. Consequently, by the said letter the Chief Conservator of Forests (C) informed the MoEF that the project proponent may be directed to obtain forest clearance under the 1980 Act and 23not to proceed with the mining activities till such clearance.
A copy of the said letter was also sent to the project proponent. By letter dated 11.8.2006, the project proponent replied to the Chief Conservator of Forests (C) stating that it had proceeded with the developmental work on the basis of the certificate given by DFO dated 13.6.2000 under which it was certified that the project area was not a forest area and it did not fall in any of the notified reserved or protected forests. It was further clarified that in the core area there were only a few trees, shrubs growing in some soil trapped in the crevices and only those shrubs and trees which are growing in the area demarcated on the excavation plan have been cut.
According to the said letter the 1980 Act was not applicable as there was no diversion of forest land for non-forestry purposes. Accordingly, a letter was addressed by MoEF on 15.11.2006 to M/s. LMMPL. The complaint made by the Chief Conservator of Forests (C) was conveyed to the project proponent. In terms of the said complaint, MoEF directed M/s. LMMPL to obtain forest clearance under the 1980 Act before taking steps to clear vegetation including trees for developing mining benches. On 14.9.2006, MoEF issued EIA Notification 2006 whereunder concerns of local affected persons were required to be taken into account through public consultation. By letter dated 29.1.2007, M/s. Lafarge took the stand that there is some natural growing vegetation; that only those shrubs which are growing in the excavation plan have been cleared and since there was no diversion of forest land for non-forestry purposes the 1980 Act was not applicable.
Vide letter dated 9.4.2007 addressed by the Chief Conservator of Forests (C) to the Secretary, Department of Forest and Environment, Government of Meghalaya as well as to the Khasi Hills Autonomous District Council, it was pointed out that the mining project was undertaken in the virgin and natural forest; that the forest is standing all around the periphery of the broken 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 compliance of the directions of the Supreme Court dated 12.12.1996. Suffice it to state without going into further correspondence that M/s. Lafarge submitted its application for forest clearance under the 1980 Act vide application dated 3.5.2007. The application makes it clear that permission is sought for forest clearance without prejudice to the rights and 26contentions of the project proponent.
After reciting the above facts, M/s. Lafarge submitted that the project was a cross-border project; that it had put in ten years of efforts for obtaining approvals; that had the reservation on the legal status of the land and the use of the mine site as forest land been made clear by Chief Conservator of Forests (C) and had such reservation been conveyed to M/s. Lafarge earlier or even at the time of consideration of the proposal for environmental clearance, they (project proponent) would have sought approval under the 1980 Act before implementing the mining project. It was pointed out that the mining lease area was 100 Ha.
At the time of making the application for forest clearance the broken up area was 21.44 Ha. In the said application M/s. Lafarge undertook to bear the cost of raising and maintenance of compensatory afforestation. They also undertook to fulfill all other conditions leviable under the law. By letter dated 11.5.2007 addressed by the Principal Chief Conservator of Forests, Meghalaya to the Government of Meghalaya, it was pointed out that the project proponent had broken up area of about 21.44Ha; that the topography in the 27leased mine around the broken up areas was Karst topography consisting of limestone surface having natural fissures and crevices; that a sizeable quantity of limestone was lying in and around the broken up area; that the non-broken up area in the leased mine was forest land falling within the purview of the 1980 Act.
By the said letter, the Principal Chief Conservator of Forests submitted that the project proponent be allowed to remove the already broken limestone from the site and that the project proponent may be directed to apply for forest clearance under the 1980 Act for the non-broken up part of the leased area. It is at this stage that M/s. Lafarge moved this Court by way of I.A. No. 1868 of 2007 inter alia seeking orders directing MoEF to expeditiously process its application under Section 2 of the 1980 Act within a time bound 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 interaction with local population and institutions in the first week of April, 2010. Briefly, it may be stated that the report indicates assessment of the impact of the mining done by the project proponent up to April 2010 on forest, wildlife and surroundings. The report indicates details of the area already broken up. On the impact aspect the report states that the total clearing involves felling of 9345 trees out of which 1200 trees have already been felled.
That, although the area supports rich flora, the same can be re-forested as a part of reclamation plan. According to the report, the said impact can be minimized after a thorough study of Bio-Diversity Management Plan as well as Catchment Area Treatment Plan is prepared and executed in a time bound manner. At the same time the report states that the project is positive and beneficial to the residents of Nongtrai village due to huge amount of cash going to village Durbar and reaching the individual household improving the financial health of the population of two villages, i.e., Nongtrai and Shella. According to the report, interaction took place between the High Powered Committee constituted by MoEF and the locals.
That villagers of Shella are not having any problems from M/s. Lafarge and that the people are very satisfied with the mining company which has provided health care facilities, drinking water facilities, employment, schools etc. According to the report, 30M/s. Lafarge has been contributing for the benefits of the village as well as for all the villagers by way of payment of rent for the use of the community land as well as towards the price of limestone exported to Bangladesh. The figures of such payments are also indicated in the report. Further, the report states that mining is not having any adverse effect on the human life. When the matter came before the Supreme Court on 12.4.2010, the learned Attorney General stated that MoEF will take a final decision under the 1980 Act for the revised environmental clearance for diversion of 116 Ha of forest land subject to certain conditions.
Accordingly, on 19.4.2010 the MoEF granted environmental clearance with certain additional conditions. The environmental clearance dated 19.4.2010 was followed by forest clearance dated 22.4.2010 (ex-post facto clearance) granted by MoEF. This letter refers to letter of the State Government dated 19.7.2007 forwarding 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 forest, forest gardens, orchards etc. Regarding the core area, the report states that the broken up area (already mined) was 38.089 Ha; that the said area was devoid of any vegetation and could be characterized by limestone floor 32and benches. However, the vegetation in the rest of the core area (i.e. proposed mining area) had tropical-moist deciduous type of vegetation with variable canopy cover and mostly sparse.
It further states that the density of plants is very low due to rocky terrain and low soil content. It further states that only a few trees described in that paragraph are present in the undisturbed core zone. On compliance of various conditions imposed by MoEF including payment of compensatory afforestation, penal compensatory afforestation and NPV with interest as well as the reports submitted by various authorities were placed before the Expert Appraisal Committee on 29.6.2010 and 21.7.2010 pursuant to the directions of the Supreme Court vide order dated 26.4.2010.
According to the minutes of Expert Appraisal Committee, the conditions and environmental safeguards stipulated by MoEF while according environmental clearance on 9.8.2001 and 19.4.2010 were comprehensive enough to mitigate any adverse impacts of the project and to protect the environment if implemented effectively. The minutes of the meeting of the Expert Appraisal Committee dated 21.7.2010 also recites that various reports 33were considered by the Committee. It also recites the fact that the Government of Meghalaya had addressed a letter to MoEF on 12.7.2010 conveying their recommendations for the grant of formal approval under Section 2 of the 1980 Act for diversion of 116.589 Ha of forest land for Lime Stone Mining. On 21.10.2010 M/s. Lafarge submitted a compliance chart of 31 conditions.Submissions
9. According to the learned Amicus Curiae, it is obvious from all the documents that have come on record including those filed by M/s. Lafarge that permissions under EIA Notification, 1994 (as amended) under Section 3 of the 1986 Act have been obtained without a candid disclosure of the facts. That, even if it is held that in cases of bona fide mis-interpretation of statutory provisions and Rules the project stood commenced without obtaining prior permission as mandated under Section 2 of the 1980 Act, save and except in cases of absolute candor and where the want of such permission 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 are allowed to be used only for those whose rights have been violated.
In support of his above submissions, learned Amicus placed reliance on the report of Chief Conservator of Forests (C) dated 1.6.2006 addressed to the MoEF in which it was stated that the mining lease area around the developed benches has been found surrounded by thick natural vegetation cover with sizeable number of tall trees; that, the said vegetation including the trees was being cleared for developing the mine benches; that, the wood obtained from felling of trees was being collected by Nongtrai Village Durbar; and that, the said report of the Chief Conservator of Forests (C) dated 1.6.2006 contradicts the Rapid EIA report submitted by the project proponent which describes the land in question as waste land.
The learned Amicus also relied upon the second report dated 9.4.2007 again by the Chief Conservator of Forests (C) based on his site visit on 7.4.2007 in which report it has been stated that the mining lease lies in the midst of virgin and natural forest. According to the said report, the said mine in question is operating on forest land without clearance under the 1980 Act. According to the said report, calling the area / site by any other name than a forest would be travesty which could only 36be assigned to an ulterior motive of obtaining exemption or avoiding taking prior approval of Government of India under the 1980 Act. The learned Amicus also placed reliance on the report dated 11.5.2007 of the Principal Chief Conservator of Forests.
In the said report dated 11.5.2007, the Principal Chief Conservator of Forests also agreed with the view of the Chief Conservator of Forests (C) stating that the project proponent should have taken permission under the 1980 Act to start the operation in the area. According to the learned Amicus, though the mine commenced commercial production w.e.f. October, 2006, the said commencement was based on approvals granted by statutory authorities on the assumption that the mining lease area is a non-forest land. In this connection, learned Amicus pointed out that the entire case of the project proponent is based on only one certificate issued by DFO, Khasi Hills Division dated 13.6.2000 in which it has been certified that the mining site for limestone mining project at Nongtrai, East Khasi Hills District, Meghalaya is not a forest area in terms of the 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 (Management and Control of Forests) Act, 1985 under which forest has been defined to mean an area in which there are twenty five trees 38per acre. Thus, according to the learned Amicus by all these definitions the area in question is a forest. Thus, according to the learned Amicus even if the project proponent ultimately succeeded in getting forest clearance under Section 2 of the 1980 Act on 22.4.2010 since the said project stood established originally in the forest area in a brazen violation of the 1980 Act such a project cannot be allowed to be regularized by grant of permission ex-post facto dated 22.4.2010.
10. Shri Shyam Divan, learned senior counsel appearing on behalf of Shella Action Committee (SAC) while adopting the submissions of the learned Amicus Curiae with regard to the project being illegal, submitted that having regard to para 4.3.1 of the National Forest Policy, 1988, tropical rain/moist forest are required to be totally safeguarded. According to SAC the forest in the region is a tropical moist forest and no forest clearance ought to have been granted because of the ecological significance recognized by the 1988 Policy.
According to SAC this fact was known to M/s. Lafarge at all material times as can be seen from the Rapid EIA Report prepared by NEHU which specifically states that the vegetation at the study site is a mixed moist deciduous forest. Reliance is also placed by the learned counsel on the assessment of floral diversity prepared by NEHU in June, 2010 which indicates that the forest in the study area can be categorized into tropical moist-deciduous forest, tropical semi evergreen forest, savanna, sub-tropical broad leaves forest, forest garden, orchards and riparian forest. According to the said assessment of 2010, the vegetation in the core area is tropical moist-deciduous types whereas the vegetation in the proper zone can be categorized into tropical and sub-tropical types.
Thus, according to the learned counsel having regard to the undisputed position emerging from the record the subject area is covered by a tropical moist forest deserving highest degree of ecological protection and therefore this Court should set aside the environmental clearance dated 9.8.2001 given under Section 3 of the 1986 Act by MoEF. In this connection it may be mentioned that SAC has also moved this Court by way of I.A. No. 2937 of 2010 seeking revocation of the environmental clearance dated 9.8.2001. They have also challenged the revised environmental clearance dated 19.04.2010 granted by 40MoEF 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 thereunder, namely, United Khasi Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1958 which Act was enacted by the District Council of the United Khasi Jaintia Hills Autonomous District in exercise of its powers under the Sixth Schedule to the Constitution of India.
According to the learned counsel, the 1958 Act classifies forests and regulates forest resource management and use and applying the definition of "forest" under Section 2(f), the region where the mining is taking place is a forest as the said area has not less than 25 trees per acre. Thus, according to the learned counsel for SAC, it ought to be assumed that the officials of M/s. Lafarge had full knowledge of the local law as well as the forest cover and the lay out of the land. From every perspective, M/s. Lafarge could not have commenced the project without a detailed survey of the physical topography of the land and the forest cover.
Thus, M/s. Lafarge had knowledge of the forest cover in the region and yet it falsely withheld this information from the concerned authorities including the MoEF. In this connection, learned counsel placed reliance on the NEHU Report of 1997, letter dated 1.6.2006 from the Chief Conservator of Forests (C) to the MoEF, letter dated 9.4.2007 from the Chief Conservator of Forests (C) to the Government of Meghalaya and assessment of floral diversity prepared by NEHU in June, 2010. According to 42the learned counsel, despite knowledge of the definition of "forest" and the provisions of the 1958 Act, the government officials issued letters containing incorrect information in relation to the forest cover.
These letters are the letter dated 28.4.1997 from Khasi Hills Autonomous District Council, letter from the Deputy Commissioner, East Khasi Hills District dated 10.7.1997 enclosing a spot inquiry report which stated that there was no forest on the land proposed to be leased out, letter dated 27.8.1997 from Khasi Hills Autonomous District Council granting NOC on the basis that there was no forest and certificate dated 13.6.2000 issued by DFO, Khasi Hills Division stating that there was no forest on the land proposed to be leased out. According to the learned counsel, the environmental clearance dated 9.8.2001 issued by MoEF was premised on "No diversion of forest land or displacement of people is involved". According to the learned counsel, the said premise is per se incorrect as there is a tropical moist - deciduous forest in the area being mined.
According to the learned counsel, the environmental clearance dated 9.8.2001 was clearly granted on the basis of false representations made 43by 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 terms of para 7 of the EIA Notification dated 14.9.2006. Such consultation has not taken place. The 44public hearing held on 3.6.1998 was without a disclosure of the forest and, hence, there has been no public consultation in accordance with para 7 of the EIA Notification dated 14.9.2006. Thus, according to the learned counsel, the revised environmental clearance dated 19.4.2010 is liable to be quashed on the ground of non-compliance of the mandatory provisions of the EIA Notification of 2006. According to the learned counsel, consequently, the stage-I forest clearance dated 22.4.2010 is also liable to be rejected.
It may be noted that the stage-I forest clearance dated 22.4.2010 has been granted by FAC of MoEF. The learned counsel submits that under National Forest Policy, 1988 tropical rain/ moist forest is required to be totally safeguarded. That, it is a no-go area. According to the learned counsel, since the region where mining is taking place falls within tropical rain/ moist forest, FAC ought not to have given the clearance on 22.4.2010. For the afore-stated reasons, it is the case of SAC that both on account of the nature of the land in question and the conduct of M/s. Lafarge, this Court should dismiss the IA No. 1868 of 2007 45filed by M/s. Lafarge and that the IA No. 2937 of 2010 filed by SAC seeking revocation of the parent environmental clearance dated 9.8.2001 and revised environmental clearance dated 19.4.2010 and forest clearance dated 22.4.2010 be allowed.
12. On the nature of the land in question, learned Attorney General submitted that in the EIA Report (NEHU Report), annexed along with the application dated 1.9.1997 for grant of environmental clearance, a description of the vegetation area at the proposed mining site which is distributed in three distinct layers indicated that the third and the lower layer consisted of shrubs and herbs and their poor growth was due to lack of soil. It was also mentioned that the majority of valuable timber trees had already been extracted from the mining site in the past in Meghalaya by the tribals who lived on timber. In para 4.9 of the Report the site was described to be mostly covered with pole sized trees, shrubs and herbs.
This EIA Report did not make reference to the Certificate dated 28.4.1997 of the Khasi Hills Autonomous District Council, the Spot Inspection Report dated 10.7.1997 nor the Certificate 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 received from M/s. LMMPL sending a certificate dated 20.3.1999 from DFO, Khasi Hills Division, Shillong indicating absence of forest.
Thus, at the stage of Site Clearance MoEF had two certificates before it, one dated 27.8.1997 issued by the Executive Committee, Khasi Hills Autonomous District Council and the other being the certificate dated 20.3.1999 issued by DFO, both indicating absence of forest. To the same effect is the main application for Environmental Clearance dated 17.4.2000. One more fact needs to be mentioned. Along with the application for Environmental Clearance dated 17.4.2000, an EIA Report prepared by Environmental Resources Management India Pvt. Ltd. giving a detailed description of the topography of the area was forwarded to MoEF.
It was called as Karst Topography. In that Report it was categorically stated that the project area did not fall in the designated forest land; that the terrain at the site was described as Karst Topography which did not allow normal plant growth. Despite clarification, MoEF wrote a letter dated 1.5.2000 to the project proponent seeking further clarification as to whether there existed forest in terms of the Supreme Court order dated 12.12.1996 and if so a 48certificate to that extent should be obtained from the local DFO. In reply, M/s. LMMPL forwarded a certificate of DFO dated 13.6.2000 which stated that the proposed mining site for limestone mining project at Phalangkaruh, Nongtrai, East Khasi Hills District, Meghalaya leased out by M/s. LMMPL is not a forest area as per Supreme Court judgment and it does not fall under any of the notified reserves or protected forests.
The area is covered with Karst topography and supports only a sporadic growth of a few trees, shrubs and creepers. The proposal of M/s. LMMPL was once again discussed at the meeting of the Expert Committee (Mining) held on 19-20.10.2000. This Committee sought further information and clarification, one of the clarifications sought was a detailed survey of the plant and animals to be carried out with the help of BSI and ZSI officers situated in Shillong. It also sought a video film of the site and other areas. Accordingly, on 9.2.2001 M/s. LMMPL gave the requisite response as desired by MoEF as well as additional information was also provided in respect of a comprehensive survey and Flora and Fauna Report dated January, 2001 of Dr. A.K. Ghosh (Former 49Director 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 Cl