2011 (7) TMI 1394 - SC - Indian Laws

Application for Site Clearance for Limestone Mining Project at Nongtrai village - 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) - Nature of land - Whether ex post facto environmental and forest clearances dated 19.4.2010 and 22.4.2010 respectively stood vitiated by alleged suppression by M/s. Lafarge regarding the nature of the land - Doctrine of proportionality - cross-border cement manufacturing project - National Forest Policy, 1988 stood enunciated pursuant to Resolution No. 13/52-F - followed in the management of State Forests in India - HELD THAT -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 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-declaration, it is duty bound to take severest possible action against the party that made the false declaration for profit. According to the learned Counsel, since impact assessment and EIA clearances are processes based on self declarations by the project proponent (s), the decision making by MoEF depends upon honest and cogent material supplied by the project proponent and since the said process is premised on a full and fair disclosure of relevant facts by the project proponent, in cases where material facts are not disclosed, the MoEF should withdraw both the site as well as the environmental clearances. According to the learned Counsel, the most important input in this regard must be received by MoEF in the course of its decision making from the public which is an essential check for a failure to disclose 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. Doctrine of proportionality - Time has come for us to apply the constitutional doctrine of proportionality to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review. It cannot be gainsaid that utilization of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices. In the circumstances, barring exceptions, decisions relating to utilization of natural resources have to be tested on the anvil of the well-recognized principles of judicial review. Accordingly, this matter stands disposed of keeping in mind various facets of the word environment , the inputs provided by the Village 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. 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 2010 preferred by SAC is dismissed. The interim order passed by this Court on 5.2.2010 shall also stand vacated. All other I. As. shall stand disposed of. Learned Counsel for the Petitioner states that he does not press this petition. Accordingly, this transfer petition is dismissed as not pressed. The High Court is requested to proceed to hear PIL No. 40 of 2007 pending before it.

Summary

Issues Involved:
1. Nature of the land
2. Validity of ex post facto environmental and forest clearances
3. Alleged suppression of facts by the project proponent
4. Compliance with environmental and forest regulations
5. Public hearing and participation
6. Implementation of National Forest Policy, 1988
7. Guidelines for future cases

Detailed Analysis:

Nature of the Land:
The limestone mining project at Nongtrai, Meghalaya, involves a 100-hectare area leased from the village Durbar. The land exhibits Karst topography with limestone caverns, characterized by uneven terrain and rugged topography. Historically, the area has been used for limestone mining since 1858, and the local community has been involved in such activities. The land was described as non-forest land by various authorities, including the Khasi Hills Autonomous District Council and the Principal Chief Conservator of Forests, Meghalaya.

Validity of Ex Post Facto Clearances:
The Supreme Court upheld the ex post facto environmental and forest clearances granted by the Ministry of Environment and Forests (MoEF) on 19.4.2010 and 22.4.2010, respectively. The Court found that the MoEF had diligently followed due process, including multiple clarifications and requisitions from the project proponent. The clearances were based on comprehensive reports and public participation, ensuring compliance with environmental regulations.

Alleged Suppression of Facts:
The Court did not find any willful misrepresentation or suppression of facts by the project proponent, M/s. Lafarge. The project proponent had submitted all required documents, including the NEHU Report of 1997, and obtained necessary certificates from local authorities. The MoEF had sought and received further clarifications, including a certificate from the Divisional Forest Officer (DFO) stating that the area was not a forest.

Compliance with Environmental and Forest Regulations:
The project proponent complied with the EIA Notification, 1994, and subsequent amendments. The MoEF granted site clearance on 18.6.1999 and environmental clearance on 9.8.2001, based on thorough evaluations and public hearings. The project proponent also applied for forest clearance under the Forest (Conservation) Act, 1980, following a change in the MoEF's view in 2006-07.

Public Hearing and Participation:
A public hearing was conducted on 3.6.1998, involving local community members and representatives from various government bodies. The hearing discussed the project's environmental implications and economic benefits for the local population. The Court emphasized the importance of public participation in environmental decision-making.

Implementation of National Forest Policy, 1988:
The Court declared that the principles of the National Forest Policy, 1988, must govern the grant of permissions under the Forest (Conservation) Act, 1980, and the Environment (Protection) Act, 1986. The Policy aims to ensure environmental stability, conservation of natural heritage, and efficient utilization of forest resources.

Guidelines for Future Cases:
The Court issued several guidelines to prevent fait accompli situations in future environmental and forest clearances:
1. Appointment of a National Regulator under Section 3(3) of the Environment (Protection) Act, 1986.
2. Compliance with the Office Memorandum dated 26.4.2011 by project proponents.
3. Site inspections by the State Forest Department and Regional Office of MoEF in case of doubt about the land's status.
4. Expansion of MoEF's regional offices and constitution of Regional Empowered Committees.
5. Creation of a GIS-based decision support database for forest land identification.
6. Implementation of safeguards in the environmental clearance process.
7. Regular public consultations and public hearings.
8. Preparation of a comprehensive policy for inspection, verification, and monitoring of forest clearances.

Conclusion:
The Supreme Court upheld the MoEF's decision to grant site clearance, EIA clearance, and forest clearance to M/s. Lafarge. The Court emphasized the need for a balanced approach to environmental protection and economic development, considering the unique cultural and land tenure systems of the local community. The Court also issued guidelines for future cases to ensure transparent and informed decision-making in environmental and forest clearances.