Andhra Pradesh High Court - Amravati
Ch Venkata Girish vs The State Of Ap on 5 September, 2019
Author: M. Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION No.2881 OF 2019
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) Petitioner - Ch.Venkata Girish, filed petition under Article 226 of the Constitution of India claiming a writ of mandamus declaring the action of respondent No.5 in insisting on EC certificate without considering that the petitioner is deemed to have been granted E.C. as per clause 8 (iii) of the EIA Notification dated 14.09.2006 as illegal, arbitrary and violative of Articles 14 and 21 of Constitution of India and consequently direct respondent No.5 to issue CTO/CFO as per Air (Prevention and Control of Pollution) Act and Water (Prevention and Control of Pollution) Act.
This writ petition is filed under Article 226 of the Constitution of India against the respondents. Respondent No.1 is the State of Andhra Pradesh, respondent No.2 is the Director of Mines and Geology, Ibrahimpatnam, Krishna District, respondent No.3 is the Assistant Director of Mines and Geology, Anakapalli, Visakhapatnam District, respondent No.4 is the State Level Environment Impact Assessment Authority (SEIAA), whereas respondent Nos.5 and 6 are the authorities under the Pollution Control Board, who are dealing with environmental impact assessment and granting permissions for mining activities.
The petitioner obtained quarry lease for extraction of colour granite in an extent of Hc.5.310 Cts in Sy.No.305 and 307 of Thotakurapalem Village, Ravikamatham Mandal, Visakhapatnam 2 HACJ & MSM,J W.P.No.2881 of 2019 District w.e.f. 27.06.2012 to 26.03.2032 vide proceedings dated 27.06.2012. Since the day of grant, the petitioner has been conducting quarrying operations without any complaints, whatsoever from any corner strictly adhering to the terms and conditions of the lease deed and Rules in vogue. The petitioner is involved in the business of granite extraction and the mining lease was for colour granite extraction, which is explicit from the lease itself. Granite being a minor mineral is dealt by the State and leases are governed by A.P. Minor Mineral Concession Rules, 1966 (for short, "the A.P.M.M.C. Rules"). The A.P.M.M.C. Rules are framed under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short "the MMDR Act") and the Rules are a complete code by itself, deal with all aspects of mining of minor minerals. The subject lease is exclusively governed by Rule 9 thereof. Though the petitioner raised several contentions with regard to lease and license, they are not relevant for the purpose of deciding the real controversy between the parties. Therefore, those allegations are unnecessary for us to decide the real controversy between the parties.
According to Rule 29 of the A.P.M.M.C. Rules, the lessee has to take all possible pre-cautions for protection of environment and control pollution while mining granite. Rule 30 mandates the lessee to use the top-soil removed for restoration or reclamation of land mined etc. Rule 32 mandates lessee to undertake in a phased manner restoration, reclamation and rehabilitation of lands affected by prospecting as mining operations and abandonment of granite quarry. The precaution against air pollution, discharge of effluents are mandated under Rules 34 and 35, moreover, Rule 37 mandates restoration of flora in the area held under lease or any other area 3 HACJ & MSM,J W.P.No.2881 of 2019 selected by State Government to improve environment and minimize effects of land degradation during the period of lease and lessee shall look after such tree plantations during subsistence of lease. The above precautions have to be undertaken by the lessee while conducting mining operations to protect the environment.
Rule 52 of the Granite Conservation and Development Rules, 1999 makes it applicable to granite leases under the A.P.M.M.C. Rules. In "Deepak Kumar v. State of Haryana1" the Apex Court considered the legality of auction notice for sand mining issued by the Mines and Geology Department, State of Haryana, proposing for road quarry and masonry stone mines referred to the Ministry of Environment and Forestry recommendations and directed all the States and Union Territories to follow the same and frame necessary Rules under Section 15 of the MMDR Act. The Apex Court in para.29 of the judgment held as follows:
"We, in the meanwhile, order that leases of Minor Minerals including their renewal for an area of less than five hectares be granted by the State/Union Territories only after getting environment clearance from MoEF."
Later, the Rules in the State were made applicable while directing to frame additional Rules under Section 15 of the MMDR Act with regard to the minor minerals other than granite and marble since conservation and development rules were in vogue with regard to those minor minerals.
According to Rule 5(3) of the Environment (Protection) Rules, 1986, the Central Government would notify restrictions on any activity or new projects being undertaken unless environmental clearance is issued by Central Government or State Government. The Environment Impact Assessment ("EIA") notification dated 1 (2012) 4 SCC 629 4 HACJ & MSM,J W.P.No.2881 of 2019 27.01.1994 required environmental clearance for mining of major minerals having area of more than 5 hectares and there was no requirement of environmental clearance for minor minerals under the said notification. The Central Government in its EIA notification dated 14.09.2006 made it clear that the said notification is not applicable to the leases prior to the said notification. However, the petitioner was called upon to obtain environmental clearance from the respondents in the year 2013 and accordingly, the petitioner applied for environmental clearance on 30.09.2013. Receipt of the same is acknowledged, but no action was initiated thereon and the same is pending with the Department.
It is the specific contention of the petitioner that notwithstanding the question of requirement of environmental clearance for the petitioner for conducting mining operations, as per Clause 8(iii) of the EIA notification, which provides that if the regulatory authority has not communicated its decision within 105 days from the date of application, the applicant can proceed as if environmental clearance has been granted. The petitioner having applied for environmental clearance on 13.09.2013 is deemed to have been granted environmental clearance. More curiously, however, ten similarly placed persons in the same district doing granite mining have been granted environmental clearance in 2016 on the basis of the Rules for environmental clearance as on that date. But, the petitioner's application has not been considered and kept it pending and it amounts to violation of principles of natural justice and gross discrimination.
While the matters stood thus, respondent No.5 on 22.05.2018 issued notice directing the petitioner to stop quarrying on the subject 5 HACJ & MSM,J W.P.No.2881 of 2019 land i.e. "stop order" on the sole ground that the petitioner has not obtained environmental clearance, CFE and CFO. Respondent No.3 on 30.05.2018 also issued a similar order. Respondent No.5 having acknowledged the receipt of the application for granting environmental clearance, CFE and CFO, it was not processed by the respondent No.3 due to laxity and for no fault of the petitioner, the orders to stop quarrying work was issued. Therefore, the quarry operation came to stand still and large number of labour - skilled and unskilled - are facing difficulty and lost their livelihood and the petitioner has also been paying daily rent and monthly E.M.Is to the financing bank for the machinery and salaries without any revenue generation from the subject quarry since May, 2018, though he never committed any irregularity or illegality in conducting quarrying operations and no complaint was received from anybody about pollution etc. Therefore, the action of respondent No.5 in insisting on EC certificate without considering that the petitioner is deemed to have been granted E.C. as per clause 8 (iii) of the EIA Notification dated 14.09.2006 is illegal.
The petitioner earlier filed W.P.No.19509 of 2018 before the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, questioning the said orders. The erstwhile High Court of Judicature at Hyderabad, by its order dated 23.07.2018, directed the competent authority to take up the application, dated 30.09.2013, for environmental clearance along with application for CFO, if any, and provide pre-decisional hearing if any decision adverse to the petitioner is to be rendered within two weeks. In spite of directions of the High Court, the environmental clearance is not issued to the petitioner and the application for CFO 6 HACJ & MSM,J W.P.No.2881 of 2019 dated 18.08.2018 is still pending before the 5th respondent as environmental clearance has not yet been issued. The respondent No.4 sought for certain documents for processing environmental clearance application of the petitioner and the petitioner submitted all the documents as required by the respondent No.5. But, strangely, on 24.01.2019, respondent No.4 issued proceedings stating that the case of the petitioner is confirmed case of violation of EIA notification, 2006 and recommended for public hearing, by issuing special terms of reference. The impugned proceedings dated 24.01.2019 are in violation and in ignorance of EIA notification, 2006 as the petitioner paid penalty and the said EIA notification has no application to the petitioner's mining as it was issued in 2004 and 2005. The notification dated 15.01.2016 issued by the Ministry of Environment and Forests ("MoEF") exempts public hearing and thereby calling for public hearing is beyond the scope of the said notification and it is contrary to law laid down by the Apex Court in "Common Cause v. Union of India2" (vide para. 188 clause (6)). According to the directions of the Apex Court with effect from 14.09.2006, all mining projects having lease area of 5 hectares or more are required to have environmental clearance. The extraction of any mineral in such a case without environmental clearance would amount to illegal or unlawful mining, attracting the provisions of Section 21(5) of the MMDR Act. Thus, no environmental clearance is required for conducting mining operations when the lease was granted prior to EIA notification dated 14.09.2006. It is also contended that environmental clearance as per the EIA notifications, 1994 and 2006, is prior requirement and before the project actually 2 (2017) 9 SCC 499 7 HACJ & MSM,J W.P.No.2881 of 2019 commences. In view of the above, the proceedings issued by the authorities referred to above, is illegal and prayed to set aside the same by issuing a writ of mandamus and claims the relief as stated supra.
The Member Secretary, State Level Environment Impact Assessment Authority ("SEIAA"), A.P. Pollution Control Board (6th respondent) filed counter-affidavit denying material allegations while contending that the mining lease was granted on 04.06.2012 for a lease period of 20 years and the mining plan was approved on 03.05.2012 with mining scheme for a period of 5 years i.e. up to 2017 only. Application for Environment Clearance was filed on 10.04.2015 and the same was placed in the earlier SEAC,AP meeting held on 28.05.2015. The representative of the petitioner has attended the meeting. The Committee noted that the mine was in operation without obtaining prior environment clearance as required under EIA Notification, 2006 and that after detailed discussion the Committee has recommended to reject the Environment Clearance at that point of time and also initiate further action as per MoEF instructions on violation cases. The issue was placed before the SEIAA and in its meeting held on 18.06.2015, SEIAA decided to reject the EC application as recommended by the SEAC and accordingly, rejection order was communicated to the petitioner on 09.07.2015 vide Lr.No.SEIAA/AP/VSP-/2015-2851.
It is further contended that the petitioner again submitted the application for EC through Online on 10.10.2016. However, the lease details & extent of mine lease areas of the surrounding mines, if any, are not furnished, to ascertain the total area of the cluster as per Notification S.O.No.2269 (E), dated 01.07.2016. The issue was 8 HACJ & MSM,J W.P.No.2881 of 2019 placed before SEAC and the Committee noted that the petitioner has not furnished NOC from the Forest Department. The Committee recommended that the project proponent shall submit the said information on surrounding mines details to be obtained from the Assistant Director of Mines, Visakhapatnam District. On 15.11.2016 the issue was examined by the SEIAA and the proposal is referred back to the SEAC for appraisal with a request to send the recommendations. The issue was examined by the SEAC in its meeting held on 02.12.2016 and the Committee recommended that the project proponent shall submit the latest status report from the Assistant Director of Mines and Geology, Anakapalli on the DFO, Visakhapatnam letter dated 25.11.2014. SEIAA in its meeting held on 17.12.2016 agreed with the recommendations of the SEAC. The project proponent submitted the clarification through Online on 19.08.2017 and stated that "the proposed quarry area is falling outside the Pangidi RF area and also the lease holder was constructed the boundary of quarry area and Pangidi RF touching each together. The surveyed map and GPS map showing the Pangidi RF boundary between station numbers 65 to 82 submitted by the FRO, Visakhapatnam."
It is specifically contended that in the Official Memorandum No.J11013/41/2006-IAII(i), dated 12.12.2012, and Official Memorandum No.J11013/41/2006-IA(I), dated 27.06.2013, the procedure involved in dealing with violation of EIA Notification was stated that only after taking of punitive legal action by the State Government under Section 15 of the Environment (Protection) Act, and only thereafter, take up the case for grant of environmental clearance on merits. It is also provided that in such cases, directions 9 HACJ & MSM,J W.P.No.2881 of 2019 under Section 5 of the Environment (Protection) Act, 1986 will be issued by the MoEF in respect of the violations and the compliance of the project proponent obtained no such directions. This included directions for closure or suspension of activities. The key to this process was that the consideration for an environmental clearance was deferred till the initiation of legal action and was reopened for consideration only when legal action had been initiated. The High Court of Jharkhand in "Hindustan Copper Limited v. Union of India3" held that action for violation should be an independent exercise which could not await the initiation of legal proceedings/ action against the project proponent. It further held that the proposal for environmental clearance should be examined on its merits, independent of any proposed action for alleged violation of the environmental laws. The National Green Tribunal, in its order dated 07.07.2015 in O.A.No.37 of 2015 and O.A.No.213 of 2015, also held that these Official Memoranda could not alter or amend the provisions of the EIA notification of 2006 and quashed the same. In the meanwhile, the Ministry of Environmental Forest and Climate Change ("MoEF&CC") issued notification S.O.804(E) dated 14.03.2017, prescribing procedure to deal with violation cases. As per the said notification, all the violation cases as on date of notification i.e. on 14.03.2017 shall be dealt with by EAC only at MoEF&CC, New Delhi and that the said procedures are intended to deter the violation of provisions of the EIA Notification of 2006 and to make such provisions that the costs of violation and damage to environment are adequately compensated for. Such damages are legally provided to be covered under the provisions of the 3 Order dated 28.11.2014 in W.P.CC.No.2364 of 2014 10 HACJ & MSM,J W.P.No.2881 of 2019 Environment (Protection) Act, 1986, along with the provision or any other directions that may need to be issued by the MoEF&CC under the provisions of the Environment (Protection) Act, 1986 (Sections 3 and 5). S.O.No.804(E) dated 14.03.2017 mandated that category 'B' violation cases will also be appraised by the Expert Appraisal Committee (EAC) constituted for examining violation cases at the MoEF&CC and the environmental clearance would be granted by the Central Government.
S.O.804(E) was challenged in "Puducherry Environment Protection Association v. Union of India4" and a Division Bench of the High Court of Madras based on the undertaking given by the Additional Solicitor General, held that (a) public hearing can be read into paragraph 5 of the impugned notification.
It is further contended that the National Green Tribunal on 27.11.2017, issued directions for consideration of such projects now, at the State level (vide Order in O.A.Nos.576, 570 and 579 of 2016). In view of the above, the MoEF&CC amended the notification dated 14.03.2017 as cited above by another Notification No.S.O.1030(E) dated 08.03.2018 and provided that for Category-A projects, the appraisal and approval shall vest with the EAC and the MoEF & CC and for Category-B projects with the SEAC/SEIAA. The MoEF has issued an Official Memorandum dated 15.03.2018 for implementation of Notification S.O.1030(E) dated 08.03.2018. But, the High Court of Madras, in W.P.Nos.3361 and 3362 of 2018 and W.M.P.No.3721 of 2018 in W.P.No.11189 of 2017 dated 14.03.2018 based on the request of the MoEF for extension of time for submission of proposals by project proponents was extended by 4 Order dated 13.10.2017 in W.P. No.11189 of 2017 11 HACJ & MSM,J W.P.No.2881 of 2019 thirty days from the date of pronouncement of the order in open Court i.e. 14.03.2018. Vide Official Memorandum F.No.Z-11013/ 22/2017-IA.II(M) dated 16.03.2018, the MoEF has given 30 days time for project proponent who have not submitted the applications as required under S.O.804(E) of MoEF&CC dated 14.03.2017 as amended in S.O.No.1030(E) of MoEF&CC dated 08.03.2018. Even in "Common Cause v. Union of India" (referred supra), the Apex Court passed a detailed order interpreting Section 21(5) of the MMDR, 1957 and a direction was issued for collection of 100% penalty for illegal mining operations with reference to the relevant statutes, which inter-alia, include the Environment (Protection) Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Forest (Conservation) Act, 1980 and the MMDR Act.
It is the specific contention of the respondent No.6 that the petitioner's case is a violation case and violation cases were discussed in the SEAC meeting held on 08.06.2017 and the SEIAA in its meeting held on 24.06.2017 and decided that the project proponent may be informed to apply through Online MoEF and CC portal for Environmental Clearance (EC) Online with the process outlined in the MoEF and CC Notification No.S.O.804 (E) dated 14.03.2017.
It is specifically contended that SEAC in its meeting held on 22.08.2017 noted that the project proposal comes under violation case under EIA Notification 2006 and that already credible action was initiated against the petitioner and that that petitioner submitted the application under violation on 13.09.2017. The SEAC in its meeting held on 27.09.2017 noted that the Mining Plan for the 12 HACJ & MSM,J W.P.No.2881 of 2019 proposed project for the scheme period up to 2016-17 only i.e. mining scheme was lapsed on 02.05.2017. The Committee recommended that the Project Proponent shall submit the approved Mining Plan with the current mining scheme for the Colour granite Mining Project. The SEIAA, A.P. addressed a letter to the project proponent Vide letter No.SEIAA/AP/AP/VSP/MIN/10/2016/222 dated 12.10.2017 requesting to submit the approved Mining Plan with the current mining scheme for the Colour Granite Mining Project for further appraisal.
It is the specific contention of the respondent No.6 that the petitioner's case is a violation case and violation cases were discussed in the SEAC meetings held on 12.05.2018 and 23.06.2018 and the SEIAA in its meetings held on 02.06.2018 and 02.07.2018 and decided that (i) all the violation cases shall be filed with an notarized affidavit/sworn in affidavit by the proponent, in the prescribed format to the Member Secretary, SEIAA, Andhra Pradesh for consideration of TOR/EC as per the provisions of EIA notification 2006 and Official Memorandum dated 30.05.2018 issued by the MoEF&CC, Government of India, and (ii) the proposals (violation cases) received after 14.04.2018, shall be returned to the project proponents, since the time limit prescribed by MoEF&CC, Government of India, in its Official Memorandum dated 16.03.2018, got expired by 14.04.2018. Therefore, the proposals received after 14.04.2018 were returned.
The petitioner submitted the copy of the approved Mining Plan on 11.11.2017 and the Original Copy submitted on 27.08.2018. The SEIAA, A.P., requested the project proponent on 01.11.2018 to 13 HACJ & MSM,J W.P.No.2881 of 2019 submit the notarized affidavit, but the same was not submitted so far.
It is further contended that based on the information received from the APPCB, the petitioner has neither approached nor filed any application so far for obtaining CFE/CFO of A.P.Pollution Control Board and prayed to dismiss the writ petition.
Petitioner filed reply affidavit to the counter filed by the respondent No.6. It is contended in the reply affidavit that the Government of India had issued O.M. dated 12.12.2012 whereunder procedure for grant of E.C. for mines, which have commenced production was issued. As per the procedure prescribed therein, the respondent authorities were directed to consider grant of E.C. only after action was initiated against the leaseholders for mining without E.C. The High Court of Jarkhand in W.P.No.2634 of 2014 dated 28.11.2014 quashed para 5 (i) (ii) of the O.M. dated 12.12.2012 as unconstitutional and further held that action for violation proposed under the said O.M. is independent and E.C. applications need not await conclusion of proceedings for violation and that E.C. application be examined on its merits. The similar opinion was expressed by NGT Principal bench New Delhi in O.A.No.37 of 2015 and 213 of 2015 and quashed O.M. dated 12.12.2012 and 24.06.2013. In view of quashing of O.M. dated 12.12.2012, the Government of India issued S.O.No.804 (E) in exercise of statutory power under Section 5 of Environment Protection Act, 1986 prescribing the procedure for grant of E.C. On 15.01.2016, the Government of India issued S.O.141 (E) amending EIA notification dated 14.09.2006 and specified that public consultation is not required for mining projects up to 25 hectares. Later, procedure 14 HACJ & MSM,J W.P.No.2881 of 2019 prescribed in S.O.804 (E) dated 14.03.2017 was amended by S.O.1030 (E) dated 14.03.2018 and the respondents were authorized to consider the application. Though all the documents have been submitted to the respondents, no decision was taken thereon for no fault of the petitioner.
It is further contended that the petitioner was asked to submit the application for E.C. on more than one occasion and the time limits prescribed in the notification EIA notification 14.09.2006 were not adhered to by the respondents. EIA 2006 prescribes deemed grant of E.C. on lapse of time and prayed to allow the writ petition.
The main contention of the learned counsel for the petitioner is that when the petitioner applied for grant of E.C., the respondents ought to have disposed of the application, but it was kept pending for months together. When the application of the petitioner for grant of E.C. is not disposed of within specified time, it is deemed to have been granted in view of clause 8 (iii) of EIA 2006. On 24.08.2018 the petitioner again submitted mining plan and requested for issuance of E.C., however, no action was taken by the respondents. He further contended that EIA 2006, which was amended about 40 times over the last 5-6 years, making the procedure more complicated, it is beyond the understanding of any individual. The E.C. is deemed to have been issued when the decision taken by the respondents is not communicated to the petitioner. Therefore, the petitioner is entitled to run the industry on the basis of deemed grant of E.C. and requested to pass appropriate orders as claimed by the petitioner.
Learned Standing Counsel for Andhra Pradesh Pollution Control Board contended that when the petitioner violated provisions of Air (Prevention and Control of Pollution) Act and Water (Prevention 15 HACJ & MSM,J W.P.No.2881 of 2019 and Control of Pollution) Act and credible action was initiated against the petitioner and the petitioner paid fine as per his own admission in paragraph No.18 of the affidavit, the petitioner is not entitled to claim deemed permission invoking clause 8 (iii) of EIA 2006 and prayed for dismissal of the petition.
Considering rival contentions and perusing the material available on record, the point that arises for consideration in this writ petition is as follows:
"Whether the petitioner is entitled to run the granite quarry based on deemed permission under clause 8 (iii) of EIA 2006?"
P O I N T:
Undisputedly, the petitioner obtained lease over an extent of Hc.5.310 Cts in Sy.No.305 and 307 of Thotakurapalem Village, Ravikamatham Mandal, Visakhapatnam. But without obtaining E.C., consequently non consideration for grant of CFO under Air and Water Act by the respondent No.5, the quarry lease for colour granite over an extent of Hc.5.310 Cts in Sy.No.305 and 307 of Thotakurapalem Village, Ravikamatham Mandal, Visakhapatnam with effect from 27.06.2012 to 26.03.2032 granted by the Government of Andhra Pradesh could not be proceeded. The mining lease commenced from 27.06.2012, and it would expire by 26.03.2032 as per the proceedings dated 27.06.2012. This fact is not disputed by the respondents. But, as seen from the allegations made in the affidavit filed along with the petition and other material on record, the petitioner without obtaining E.C. from the respondents commenced mining operations. On 14.09.2006 Government of India issued EIA notification enlarging the type of industries requiring
16 HACJ & MSM,J W.P.No.2881 of 2019 prior E.C., thereupon, the petitioner submitted an application for grant of E.C. under clause 8 (i) of EIA notification. As per clause 8 (i) the regulatory authority has to consider report of EAC/SEAC within 45 days from the date of receipt or within 105 days in case the EIA report is not required. Clause 8 (iii) provides that in the event, the decision of the regulatory authority is not communicated within the periods provided in clause 8 (i), the applicant can proceed as if the environmental clearance sought for has been granted.
Though the petitioner raised several contentions regarding commencement of quarry operations even prior to EIA notification, specifically contended that he is not required to obtain any prior E.C. as the lease was commended prior to EIA 2006. The petitioner applied for E.C. to the respondent No.6 on 18.04.2015 and informed the respondent No.6 that the petitioner was granted mining lease in S.No.305 and 307 of Thotakurapalem Village, Ravikamatam Mandal, Visakhapatnam District, duly filled application in Form-I was enclosed thereto and the receipt of the same was acknowledged by respondent No.6. Later, certain clarifications were obtained from respondent No.3 with regard to location of the petitioner's quarry lease and that respondent No.4 on 12.10.2017 directed the petitioner to submit approved mining plan with current mining scheme for colour granite mining project for further appraisal. Accordingly, petitioner submitted mining plan for the scheme period was only until 2016-2017 and the same was lapsed on 02.05.2017 on account of delay on the part of respondent No.4 in processing the application for E.C. The petitioner submitted another application for E.C., the same would be screened on whether the project requires further study for preparation of EIA for its appraisal. But the same was not 17 HACJ & MSM,J W.P.No.2881 of 2019 processed. The petitioner submitted the approved mining plan vide letter dated 11.11.2017. Though the same was acknowledged, the respondent authorities did not issue E.C. The respondents disputed the right of the petitioner to continue mining operations, on the ground that the petitioner is not entitled to deemed grant of E.C in view of rejection of his application for E.C. and copy of the same was placed on record along with the counter. According to the letter dated 09.07.2015 in Lr.No.SEIAA/AP/VSP- /2015 2851, it was informed to the petitioner that the issue was placed before the SEAC in its meeting held on 28.05.2015, the representative of the Project Proponent has attended the meeting. The Committee noted that the mine is in operation without obtaining Environmental Clearance. After detailed discussion, the Committee recommended to reject the Environmental Clearance to the project at that time and also to initiate further action as per MoE&F instructions on violation cases and requested the petitioner to submit a written commitment in the form of a formal resolution within 60 days to ensure that violations will not be repeated, as per MoEF O.M.No.J-11013/41/2006-IA.II (I) dated 12.12.2012.
Thereafter, a letter dated 07.04.2016 was addressed by SEIAA, Andhra Pradesh to the Special Chief Secretary to Government, EFS & T Department, Government of Andhra Pradesh intimating about the rejection of application of petitioner for grant of E.C. while deciding to refer the cases to the Government of Andhra Pradesh for taking credible action and report to SEIAA, A.P. for further processing. Accordingly, a letter was communicated to the petitioner dated 31.12.2016 informed as follows:
18 HACJ & MSM,J W.P.No.2881 of 2019 "The Committee noted that the project proponent has furnished copy of letter DFO, Visakhapatnam letter dated 25.11.2014 regarding the NOC from the Forest Department (Rc.No.3939/2012/TO, dated 25.11.2014) In this letter it was mentioned that the proposed quarries are falling outside the R.F.area and adjacent to Pangidi Reserve Forest with a distance of 3.50 meters only from the boundary line. Hence as per the orders of Prl.CCF.A.P. Hyderabad Rc.No.40118/2013/F2, dated 28.11.2013 the safety zone area should be 7.5 meters radius from the Reserve Forest boundary fixed. Hence, the Assistant Director, Mines and Geology, Anakapalli is informed that the proposed above said quarries boundary should be fixed 7.5 metres from the R.F. boundary line as per the joint survey report and while handling over the Quarries area to the concerned lease holders should be done in the presence of the concerned local Forest officials."
Finally, the Committee called for status report from the Assistant Director of Mines and Geology, Anakapalli on the DFO, Visakhapatnam letter dated 25.11.2014.
However, by letter dated 12.10.2017 in Lr.No.SEIAA/AP/AP/VSP/MIN/10/2016/222, the Member
Secretary, SEAC, A.P., requested the petitioner to submit a mining plan with the current mining scheme for the Colour granite Mining Project, for further appraisal. Accordingly, a mining plan was submitted by the petitioner along with Form-1 and Pre-feasibility report (undated). The SEIAA, A.P. by letter dated 03.08.2018 requested the petitioner to submit a notarized affidavit/sworn in affidavit as per the format in original to the Member Secretary, SEIAA, A.P. for consideration of TOR/EC as per the provisions of EIA Notification, 2006 and O.M. dated 30.05.2018 issued by the MoEF & CC, Government of India.
Thus, there is any amount of latches on the part of the petitioner in complying the directions issued by the respondents from time to time.
Though the petitioner raised several contentions with regard to Rule 25 of the Marble Development and Conservation Rules 2002 19 HACJ & MSM,J W.P.No.2881 of 2019 and Rule 5 of the Environment (Protection) Rules 1986, he did not press for decision on the same.
It is the specific contention of the petitioner that in "Deepak Kumar v. State of Haryana5", a case with regard to auction notice issued by Mines and Geology Department of State of Haryana proposing to sand, road quarry and masonry stone mines referred to the Ministry of Environment and Forestry recommendations and directed all States and Union Territories to follow the same and frame necessary Rules under Section 15 of the MMDR Act, 1957 and the Central Government was advised to take steps to bring into force Minor Minerals Conservation and Development Rules, 2010 at the earliest and observed in para 29 as follows:
"29. We, in the meanwhile, order that leases of Minor Minerals including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from MoEF."
Even according to Rule 5(3) of the Environment (Protection) Rules, 1986, the Central Government would notify restrictions on any activity or new projects being undertaken unless environmental clearance is issued by Central Government or State Government. The EIA notification dated 27.01.1994 required environmental clearance for mining of major minerals having area of more than 5 hectares and there was no requirement of environmental clearance for minor minerals under the said notification. But, the later notification issued by the Government made mandatory to obtain environmental clearance even for minor minerals.
In view of the judgment in "Deepak Kumar v. State of Haryana" (referred supra), the MoEF made certain recommendations and the Rules were made applicable to A.P. Minor 5 (2012) 4 SCC 629 20 HACJ & MSM,J W.P.No.2881 of 2019 Mineral (Concession) Rules, 1966 also. But, according to the petitioner the judgment of the Supreme Court is applicable i.e. making mandatory to obtain environmental clearance was only till necessary Rules are made or framed since in the case of granite and marbles, the Rules were already in vogue.
This contention cannot be accepted for the reason that the petitioner applied for environmental clearance on 30.09.2013 in view of the Central Government notification in its EIA Notification dated 14.09.2006. But no action was initiated and it is pending before the authorities concerned. According to Clause 8(iii) of EIA Notification, if regulatory authority has not communicated its decision within 105 days from the date of receipt of application, the environmental clearance sought for has been granted. Therefore, there is a deeming provision in the EIA Notification, 2006, but till date no environmental clearance was issued despite granting environmental clearance to ten persons, who are similarly situated in 2016 itself basing on the Rules, discriminating the petitioner herein for one reason or the other.
When the petitioner himself applied for issuance of environmental clearance, CFE and CFO, having obtained order in W.P.No.19509 of 2018 dated 23.07.2018, he cannot now contend that no environmental clearance, CFE and CFO are required for continuation of mining operations. The petitioner having applied for issuance of environmental clearance, CFE and CFO, having invited order from the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh and raising such contention that he is not required to obtain any of those certificates, is hit by Section 115 of the Evidence Act i.e. principle of estoppel. It 21 HACJ & MSM,J W.P.No.2881 of 2019 is settled law that a person approaches the Court seeking relief under Article 226 of the Constitution of India has to approach the Court with clean hands. When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (vide: "The Ramjas Foundation v. Union of India6; K.P. Srinivas v. R.M. Premchand7"). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another. But, the petitioner though approached the Court seeking specific relief under Article 226 of the Constitution of India, which is purely discretionary, raised several contentions that he is not required to obtain such environmental clearance, CFE and CFO, having applied for issuance of such certificates. Thereby, he cannot be permitted to approbate and reprobate and he is estopped to raise such contentions, having applied for issuance of such certificates and paid penalty, on the credible action taken by the authorities under the Environment (Protection) Act, 1986, as it is a violative case apart from that similar contention was raised in earlier writ petition, but not accepted and directed the authorities to give opportunity and pass order. The order became final. Hence, the order already passed disallowed such contention, the same cannot be re-agitated.
The petitioner made an application dated 30.09.2013 to the SEIAA, AP i.e. respondent No.4, for grant of environmental clearance to continue mining operations of colour granite in an area of 5.93 6 AIR 1993 SC 852 7 (1994) 6 SCC 620 22 HACJ & MSM,J W.P.No.2881 of 2019 hectares and it was examined by the State Level Expert Appraisal Committee (SEAC) in its meeting held on 19.10.2013. During consideration of the said proposal, it emerged that the project proponent started mining operations without obtaining necessary environmental clearance and thereby violated the provisions of the Environment (Protection) Act, 1986. The SEIAA, AP issued a notice to the project proponent on 24.10.2013 directing to submit a written commitment duly complying with the procedure indicated in the Official Memoranda dated 12.12.2012 and 27.06.2013 issued by the MoE&F, Government of India, New Delhi.
According to the said two Official Memoranda, as soon as the case of violation comes/is brought to the notice of the Ministry/EAC, the Ministry/EAC will proceed to verify the veracity of the complaint through the concerned Regional Office of MoEF/State Government/ CZMA. Of course, such verification will not be required in case the project proponent does not contest the allegation of violation. Once the Ministry/EAC is satisfied that it is a violation case, before proceeding any further in the matter, the following will need to be ensured in the matter:
i. The matter relating to the violation will need to be put up by the Project Proponent to the Board of Directors of its Company or to the Managing Committee/CEO of the Society, Trust, partnership/ individually owned concern for consideration of its environment related policy/plan of action as also a written commitment in the form of a formal resolution to be submitted to MoEF to ensure that violations will not be repeated. For this purpose, a time limit of 60 days will be given to the project proponent. In the meantime, the project will be de-listed. In the eventuality of not having any response from the project proponent within the prescribed limit of 60 days, it will be presumed that it is no longer interested in pursuing the project further and the project file will be closed, whereafter the
23 HACJ & MSM,J W.P.No.2881 of 2019 procedure will have to be initiated de novo by such project proponents.
ii. The State Government concerned will need to initiate credible action on the violation by invoking powers under Section 19 of the Environment (Protection) Act, 1986 for taking necessary legal action under Section 15 of the Act for the period for which the violation has taken place and evidence provided to MoEF of the credible action taken.
iii. The details of the project proponent and a copy of the commitment, etc., mentioned at (i) above will be put on the website of MoEF for information of all stakeholders. Similarly, in Official Memorandum dated 27.06.2013, Clause 3(iv) amended the earlier Official Memorandum dated 12.12.2012, incorporating the following:
"3. In view of the above, it has been decided to insert the following as sub-para (iv) below sub0para (iii) of para 5 of the aforesaid OM dated 12.12.2012:
"(iv) Directions under Section 5 of the Environment (Protection) Act, 1986 will be issued by MoEF to the Project Proponent in respect of the violations and compliance of Project Proponent obtained to such directions especially with regard to:
(a) In case the project is at construction stage and the violation is on account of carrying out construction without valid EC/CRZ Clearance or in contravention of the conditions stated in the EC/CRZ Clearance, the construction activist will need to be suspended at the existing level till EC/CRZ Clearance is obtained or the required amendment to EC/CRZ Clearance is obtained.
(b) In case the project is in operation and the violation is on account of enhanced production beyond the capacity stated in the EC/CRZ Clearance, the production will need to be restricted to the capacity stated in the EC/CRZ Clearance till EC/CRZ Clearance is obtained for enhanced capacity. In case of operation without a valid EC/CRZ Clearance, the production will need to stop till the required EC/CRZ Clearance is obtained.
(c) In case the violation is on account of carrying out modernization of existing project and/or change in product-mix in an existing manufacturing unit, the status quo as existing prior to such modernization and/or change in product-mix will be maintained till the required EC/CRZ Clearance is obtained for the modernization and/or change in product-mix.
In case of any violation to aforesaid directions, legal action as per the provisions of the Environment (Protection) Act, 1986 will be taken 24 HACJ & MSM,J W.P.No.2881 of 2019 against the Project Proponent and the case of TOR/EC/CRZ Clearance summarily rejected."
Thus, in view of these guidelines in the Official Memoranda, dated 12.12.2012 and 27.06.2013, the petitioner has to comply the procedure indicated therein. The SEIAA, AP, addressed a letter to the Special Chief Secretary to Government, EFS&T Department, Government of Andhra Pradesh, Hyderabad, on 06.02.2014, for initiating credible action on the violation and for taking legal action against the unit and requested the information of credible action to the SEIAA, A.P. Since the project comes under violation case and credible action taken report not received from the Government to the SEIAA, AP. Even according to Clause 12(3) and (4) of the notification S.O.804 (E) dated 14.03.2017 issued by the Ministry of Environment Forest and Climate Change (MoEF&CC), in the cases of violation, action will be taken against the project proponent by the respective State or State Pollution Control Board under the provisions of Section 19 of the Environment (Protection) Act, 1986 and further, no consent to operate or occupancy certificate will be issued till the project is granted the environmental clearance. The cases of violation will be appraised by respective sector Expert Appraisal Committees constituted under sub-section (3) of Section 3 of the Environment (Protection) Act, 1986 with a view to assess that the project has been constructed at a site which under prevailing laws is permissible and expansion has been done which can be run sustainably under compliance of environmental norms with adequate environmental safeguards; and in case, where the finding of the Expert Appraisal Committee is negative, closure of the project will be recommended along with other actions under the law.
25 HACJ & MSM,J W.P.No.2881 of 2019 Therefore, basing on these two guidelines of S.O.804(E), a credible action report has to be sent to the SEIAA, AP by the Special Chief Secretary to Government, but no such credible action report was received from the Government by SEIAA, AP. In the meanwhile, MoEF&CC issued Notification SO 804(E) referred above and SO 1030(E) dated 08.03.2018. S.O. 1030(E) amended the prior SO 804(E) and substituted several paragraphs, but the relevant paras read as follows:
"(2). In case the projects or activities requiring prior environmental clearance under the Environment Impact Assessment Notification, 2006 from the concerned regulatory authority are brought for environmental clearance after starting the construction work, or have undertaken expansion, modernization, and change in product-mix without prior environmental clearance, these projects shall be treated as cases of violations and the projects or activities covered under category A of the Schedule to the Environment Impact Assessment Notification, 2006, including expansion and modernization of existing projects or activities and change in produce-
mix, shall be appraised for grant of environmental clearance by the Expert Appraisal Committee in the Ministry and the environmental clearance shall be granted at Central level, and for category 'B' projects, the appraisal and approval thereof shall vest with the State or Union Territory level Expert Appraisal Committees and State or Union Territory Environment Impact Assessment Authorities in different States and Union Territories, constituted under sub-section (3) of Section 3 of he Environment (Protection) Act, 1986."
"(6). The Expert Appraisal Committee or State or Union Territory level Expert Appraisal Committee, as the case may be, shall stipulate the implementation of Environmental Management Plan, comprising remediation plan and natural and community resource augmentation plan corresponding to the ecological damage assessed and economic benefit derived due to violation as a condition of environmental clearance."
According to these Clauses in S.O.1030(E) and S.O.804(E), the cases of violation and the projects or activities covered under category-B i.e. the petitioner's mining activity, the appraisal and approval thereof shall vest with the SEIAA, AP. Further, the MoEF&CC has issued Official Memoranda, dated 15.03.2018 and 26 HACJ & MSM,J W.P.No.2881 of 2019 16.03.2018, to submit proposals afresh within 30 days to the EAC for category A projects or the SEAC/SEIAA in the respective State/U.Ts. for category-B projects and also issued certain instructions for processing action in violation cases. Though the circular is silent as to Category-B1 and B2, but it is applicable to Category-B projects in the State. Category-B includes B1 and B2. Though the case of the petitioner falls under Category-B2, in view of the language used in the Official Memoranda dated 15.03.2018 and 16.03.2018, the guidelines are applicable to Category-B2 projects also.
Accordingly, the petitioner has submitted a proposal, but beyond 30 days from the date fixed. The contention of the petitioner that in view of the judgment of the Madras High Court vide Order dated 14.03.2018 in WMP Nos.3361 and 3362 of 2018 and WMP No.3721 of 2018 in WP No.11189 of 2017, 30 days time can be granted even from the date of judgment. But, the order was only a consent order and it was not a binding precedent. The SEIAA, AP in its meeting held on 20.03.2018, decided that all violation cases shall be informed to apply afresh to the SEIAA, AP, for further consideration of TOR/EC as per the said Notification and Official Memoranda and also issued a public notice in the local daily newspapers on 27.03.2018. Similarly, in the meeting held on 08.04.2018 the SEAC after deliberations, have recommended constituting a Sub-Committee with members of SEAC and Experts and the same was accepted by the SEIAA, AP, in its meeting held on 24.04.2018. According to the recommendations, the issue of 'violation cases' placed before the Committee, the above matter is informed to all the project proponents who have filed their 27 HACJ & MSM,J W.P.No.2881 of 2019 applications as per MoEF&CC, Government of India, New Delhi, Notification No.S.O.1030(E), dated 08.03.2018 and Official Memoranda dated 15th and 16th March, 2018 for further processing.
The issue of violation cases was examined by SEAC in its meeting held on 23.06.2018 and the SEIAA in its meeting held on 02.07.2018 and decided as follows:
i. All the violation cases shall be filed with an notarized affidavit/sworn in affidavit by the proponent, in the prescribed format to the Member Secretary, SEIAA, Andhra Pradesh for consideration of TOR/EC as per the provisions of EIA Notification, 2006 and O.M. dated 30.05.2018 issued by the MoEF&CC, Government of India.
ii. The proposals (violation cases) received after 14th April, 2018, shall be returned to the project proponents, since the time limit prescribed by MoEF&CC, Govt. of India, in its O.M dated 16.03.2018, got expired by 14.04.2018.' Further, credible action was initiated and the case was filed before the Judicial Magistrate, Chodavaram (C.C.No.125 of 2016) In view of the EIA Notification 2006 and the amendments thereof, the Apex Court judgment dated 02.08.2017 in W.P. (Civil) No.114 of 2014, the Central Pollution Control Board letter dated 17.01.2018 and letter dated 04.05.2018 of the Member Secretary, APPCB, the Joint Chief Environmental Engineer, Zonal Office, Visakhapatnam, vide order dated 22.05.2018, issued stop production orders to the petitioner for operating the mine without environmental clearance and CFE/CFO of the Board. The petitioner submitted a representation dated 29.08.2018 enclosing the copy of the judgment of the High Court in W.P.No.19509 of 2018, dated 23.07.2018, and requested for issuance of environmental clearance and the same was forwarded by the Assistant Director of Mines and Geology, Tekkali to the SEIAA, AP vide letter dated 13.08.2018. But, 28 HACJ & MSM,J W.P.No.2881 of 2019 the Zonal Office, APPCB, Visakhapatnam, conducted legal hearing (Task Force meeting) on 21.08.2018 and the committee directs the mining unit to approach the SEIAA regarding issues pertaining to environmental clearance. They also informed that CFE/CFO cannot be processed or issued until the mining unit obtains environmental clearance and the mining unit is informed to submit CFE/CFO applications in the prescribed format of the Board after obtaining environmental clearance.
The contention of the petitioner before this Court is that the proposals were not accepted without any basis, though it is a category-B project. But, as per clause 4 of the Official Memorandum dated 15.03.2018, issued for implementation of S.O.1030(E) dated 08.03.2018, all proposals of category-B projects/activities pertaining to different sectors received within six months only i.e. upto 13.09.2017 on the Ministry's portal, but yet not considered by the EAC in the Ministry, shall transferred online to the SEAC/SEIAAs in the respective States/U.Ts. Later, on 16.03.2018 another Official Memorandum was issued after considering the judgment of the Madras High Court vide Order dated 14.03.2018 in WMP Nos.3361 and 3362 of 2018 and WMP No.3721 of 2018 in WP No.11189 of 2017 wherein the Madras High Court held as follows:
"24. In this view of the matter, considering that sub-clause
(i)(d) of Stage III of paragraph 7(i) of parent notification as contained in item No.8(a) of the Schedule being housing projects, we deem it necessary to clarify that projects and project proponents falling under category alone shall be governed by the 'public consultation' clause in the parent notification.
25. With regard to the prayer of MoEF for extension of time for submission of proposals by project proponents, we are of the view that it will serve the ends of justice if time is extended by 30 (thirty) days from the date of delivery of this order in open court."
29 HACJ & MSM,J W.P.No.2881 of 2019 Therefore, six months window i.e. upto 13.09.2017 in pursuance of the S.O.804(E) dated 14.03.2017 the proposals are required to be submitted within six months i.e. 13.09.2017 to the EAC for Category-A projects . Similarly, within 30 days to EAC for Category-B projects after 13.09.2017. But, the petitioner did not follow the procedure prescribed in Official Memoranda referred above. On the other hand, he submitted his application after expiry of 16 days from the date fixed. Moreover, as per the Official Memorandum dated 30.05.2018, for consideration of mining proposals involving violation of the EIA Notification 2006 issued certain guidelines and sub-clauses (iii) and (iv) of guideline No.5 read as follows:
"iii. The Environment Clearance will not be operational till such time the Project Proponent complies with all the statutory requirements and judgment of Hon'ble Supreme Court dated the 2nd August, 2017 in Writ Petition (Civil) No.114 of 2014 in the matter of Common Cause versus Union of India and Ors.
iv. State Government concerned shall ensure that mining operation shall not commence till the entire compensation levied, if any, for illegal mining paid by the Project Proponent through their respective Department of Mining and Geology in strict compliance of judgment of Hon'ble Supreme Court dated the 2nd August, 2017 in Writ Petition (Civil) No.114 of 2014 in the matter of Common Cause versus Union of India and Ors."
Similarly, on 12.12.2018 another Official Memorandum was issued in view of the directions issued by the National Green Tribunal dated 13.09.2018 in O.A.No.186 of 2016 (Satendra Pandey v. Ministry of Environment, Forest & Climate Change & Anr.), relevant portion of which reads as follows:
"2. The Hon'ble NGT vide order dated 13th September, 2018 in O.A.No.186 of 2016 (Satendra Pandey Vs Ministry of Environment Forest & Climate Change & Anr.) has inter-alia directed as follows:
(i) Providing for EIA, EMP and therefore, Public Consultation for all areas from 5 to 25 hectares falling member Category B-2 at par
30 HACJ & MSM,J W.P.No.2881 of 2019 with Category B-1 by SEAC/SEIAA as well as for cluster situation wherever it is not provided.
(ii) Form-1M be made more comprehensive for areas of 0 to 5 hectares by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant EC by SEIAA instead of DEAC/DEIAA.
(iii) If a cluster or an individual lease size exceeds 5 ha the EIA/EMP be made applicable in the process of grant of prior environmental clearance.
(iv) EIA and/or EMP be prepared for the entire cluster in terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendations 6, 7 and 8 thereof;
(v) ... (vi) ..."
The petitioner has undisputably made an application for issuance of environmental clearance and violated various Official Memoranda (referred above) issued by the authorities from time to time and paid penalty for such violations. Having violated and paid penalty for such violations, and having applied for issuance of environmental clearance, now cannot contend that these Rules have no application. Hence, it is difficult to accept the contention of the petitioner that no environmental clearance or CFE/CFO are required to obtain, for mining operations commenced prior to 2006 by applying the principle of estoppel.
Even as per the judgment of the Apex Court in Common Cause v. Union of India (referred supra), non-adherence would attract penalty and termination of lease. Adherence to statutory provisions necessarily implies adherence to provisions of Environment (Protection) Act, 1986, laws pertaining to Air and Water Pollution and Forest Conservation Act, 1980 besides adherence to mining statutes. In the same judgment, the Apex Court discussed the ambit of expression "illegal mining" and held in paras 84, 128 to 130 as follows:
31 HACJ & MSM,J W.P.No.2881 of 2019 "84. Briefly therefore, the overall purpose and objective of the MMDR Act as well as the rules framed there under is to ensure that mining operations are carried out in a scientific manner with a high degree of responsibility including responsibility in protecting and preserving the environment and the flora of the area. Through this process, the holder of a mining lease is obliged to adhere to the standards laid down under the Environment (Protection) Act, 1986 or the EPA as well as the laws pertaining to air and water pollution and also by necessary implication, the provisions of the Forest (Conservation) Act, 1980 (for short 'the FC Act'). Exploitation of the natural resources is ruled out. If the holder of a mining lease does not adhere to the provisions of the statutes or the rules or the terms and conditions of the mining lease, that person is liable to incur penalties under Section 21 of the MMDR Act. In addition thereto, Section 4A of the MMDR Act which provides for the termination of a mining lease is applicable. This provides that where the Central Government, after consultation with the State Government is of opinion that it is expedient in W.P. (C) Nos.
114/2014 etc. the interest of regulation of mines and mineral development, preservation of natural environment, prevention of pollution, etc. then the Central Government may request the State Government to prematurely terminate a mining lease.
129. The simple reason for not accepting this interpretation is that Rule 2(ii-a) of the MCR was inserted by a notification dated 26 th July, 2012 while we are concerned with an earlier period. That apart, as mentioned above, the holder of a mining lease is required to adhere to the terms of the mining scheme, the mining plan and the mining lease as well as the statutes such as the EPA, the FCA, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. If any mining operation is conducted in violation of any of these requirements, then that mining operation is illegal or unlawful. Any extraction of a mineral through an illegal or unlawful mining operation would become illegally or unlawfully extracted mineral.
130. It is not, as suggested by learned counsel, that illegal mining is confined only to mining operations outside a leased area. Such an activity is obviously illegal or unlawful mining. Illegal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area which is held under lawful authority, if that excess extraction is contrary to the mining scheme, the mining plan, the mining lease or a statutory requirement. Even otherwise, it is not possible for us to accept the narrow interpretation sought to be canvassed by learned counsel for the mining lease holders particularly since we are dealing with a 32 HACJ & MSM,J W.P.No.2881 of 2019 natural resource which is intended for the benefit of everyone and not only for the benefit of the mining lease holders." Thus, in view of the law laid down by the Apex Court in above judgment, the project proponent has to adhere to Environment (Protection) Act, 1986 and the laws pertaining to Air and Water Pollution and Forest Conservation Act, 1980 and if mining operations are commenced without adhering to those enactments, it would amount to illegal mining and the lease is liable to be cancelled due to such violations. But, the learned counsel for the petitioner relied on few paras of the same judgment with regard to Circulars. In para.111 of the said judgment, reference to Circular dated 02.07.2007 was made and at the same time, in para 115, the Apex Court observed as follows:
"All that we need to say on this subject is that there is no confusion, vagueness or uncertainty in the application of EIA 1994 and EIA 2006 insofar as mining operations were commenced on mining leases before 27th January, 1994 (or even thereafter). Post EIA 2006, every mining lease holder having a lease area of 5 hectares or more and undertaking mining operations in respect of major minerals (with which we are concerned) was obliged to get an EC in terms of EIA 2006."
Taking advantage of this observation, learned counsel for the petitioner contended that the petitioner is not required to obtain environmental clearance. But, this cannot be accepted for the reasons stated in the earlier paragraphs.
In para.188 of the same judgment, the Apex Court observed as follows:
" To avoid any misunderstanding, confusion or ambiguity, we make the following very clear:
(1) A mining project that has commenced prior to 27th January, 1994 and has obtained a No Objection Certificate from the SPCB prior to that date is permitted to continue its mining operations without obtaining an EC from the Impact Assessment Agency. However, this 33 HACJ & MSM,J W.P.No.2881 of 2019 is subject to any expansion (including an increase in the lease area) or modernization activity after 27th January, 1994 which would result in an increase in the pollution load. In that event, a prior EC is required. However, if the pollution load is not expected to increase despite the proposed expansion (including an increase in the lease area) or modernization activity, a certificate to this effect is absolutely necessary from the SPCB, which would be reviewed by the Impact Assessment Agency.
(2) The renewal of a mining lease after 27th January, 1994 will require an EC even if there is no expansion or modernization activity or any increase in the pollution load.
(3) For considering the pollution load the base year would be 1993-94, which is to say that if the annual production after 27th January, 1994 exceeds the annual production of 1993-94, it would be treated as an expansion requiring an EC.
(4) There is no doubt that a new mining project after 27th January, 1994 would require a prior EC.
(5) Any iron ore or manganese ore extracted contrary to EIA 1994 or EIA 2006 would constitute illegal or unlawful mining (as understood and interpreted by us) and compensation at 100% of the price of the mineral should be recovered from 2000-2001 onwards in terms of Section 21(5) of the MMDR Act, if the extracted mineral has been disposed of. In addition, any rent, royalty or tax for the period that such mining activity was carried out outside the mining lease area should be recovered.
(6) With effect from 14th September, 2006 all mining projects having a lease area of 5 hectares or more are required to have an EC. The extraction of any mineral in such a case without an EC would amount to illegal or unlawful mining attracting the provisions of Section 21(5) of the MMDR Act.
(7) For a mining lease of iron ore or manganese ore of less than 5 hectares area, the provisions of EIA 1994 will continue to apply subject to EIA 2006.
(8) Any mining activity carried on after 7th January, 1998 without an FC amounts to illegal or unlawful mining in terms of the provisions of Section 21(5) of the MMDR Act attracting 100% recovery of the price of the extracted mineral that is disposed of.
(9) In the event of any overlap, that is, illegal or unlawful mining without an FC or without an EC or without both would attract only 100% compensation and not 200% compensation. In other words, only one set of compensation would be payable by the mining lease holder. (10) No mining lease holder will be entitled to the benefit of any payments made towards NPV or additional NPV or penal compensatory afforestation."
34 HACJ & MSM,J W.P.No.2881 of 2019 The learned counsel for the petitioner relied on Clause (1) of Para.188 of the same judgment. According to it, a mining project that has commenced prior to 27th January, 1994 and has obtained a No Objection Certificate from the SPCB prior to that date is permitted to continue its mining operations without obtaining an EC from the Impact Assessment Agency. However, this is subject to any expansion (including an increase in the lease area) or modernization activity after 27th January, 1994 which would result in an increase in the pollution load. In that event, a prior EC is required. However, if the pollution load is not expected to increase despite the proposed expansion (including an increase in the lease area) or modernization activity, a certificate to this effect is absolutely necessary from the SPCB, which would be reviewed by the Impact Assessment Agency.
Even if this is applied, the lease was not commenced prior to 27th January, 1994 and no NOC from the SPCB was obtained by the petitioner and in fact, it is not his case that the petitioner obtained NOC from the SPCB. Therefore, the principle laid down in the above judgment will not enure any benefit to the petitioner.
In another judgment in "Secretary, Kerala State Coastal Management Authority v. DLF Universal Ltd.8", the Apex Court discussed about the procedure of deemed environmental clearance and held that not to be followed in future, since obtaining of prior environmental clearance is mandatory irrespective of wording of Para 8(ii) of EIA 2006 Notification. In view of this clarification, the question of deemed grant of environmental clearance does not arise and consequently, the contention of the petitioner that, the petitioner is deemed to have obtained environmental clearance as it was not 8 (2018) 2 SCC 203 35 HACJ & MSM,J W.P.No.2881 of 2019 processed within 105 days, cannot be accepted. Hence, this contention holds no substance and the same is hereby rejected as it is meritless.
The National Green Tribunal, Principal Bench, New Delhi in "S.P.Muthuraman v. Union of India9" in para. 141 held that any project with proper filing of Form-I would be awarded TOR specific to the project and thereby would have EIA report that deals with environmental concerns specific to the project prior to its execution along with the necessary management plan/s and budgetary provisions. Similarly, as per the EIA Notification, 2006 which has mandatory character and its requirements have to be satisfied in consonance with the provisions made therein. Prior environmental clearance from the regulatory authority is the condition precedent before any construction work or preparation of land by the project proponent is carried out except for securing the land. The project and activities as already stated above have been categorized into two categories; category 'A' and category 'B'. All the projects and activities which have been specified in the Schedule to the Notification of 2006 required environmental clearance. Finally, at para.163, the National Green Tribunal issued certain directions, and direction Nos.1, 2, 9, 10, 12 and 14 are relevant for deciding the issue involved in this case and they read as under:
"1) We hold and declare the Office Memoranda dated 12th December, 2012 and 27th June, 2013 as ultra-vires the provisions of the Act of 1986 and the Notification of 2006. They suffer from the infirmity of lack of inherent jurisdiction and authority. Resultantly, we quash both these Office Memoranda.
2) Consequently, the above Office Memoranda are held to be ineffective and we prohibit the MoEF and the SEIAA in the entire 9 2015 SCC OnLine NGT 169
36 HACJ & MSM,J W.P.No.2881 of 2019 country from giving effect to these Office Memoranda in any manner, whatsoever.
9) What measures and steps, including demolition, if any, or raising of additional structures are required to be taken in the interest of environment and ecology?
10) All the Project Proponents shall pay environmental compensation of 5 per cent of their project value for restoration and restitution of the environment and ecology as well as towards their liability arising from impacts of the illegal and unauthorized constructions carried out by them. They shall deposit this amount at the first instance, which shall be subject to further adjustment. Liability of each of the Respondents is as follows:
Mr. Y. Pondurai.: Rs. 7.4125 crores.
M/s Ruby Manoharan Property Developers Pvt. Ltd.: Rs. 1.8495 crores.
M/s Jones Foundations Pvt. Ltd.: Rs. 7 crores.
M/s SSM Builders and Promoters: Rs. 36 crores.
M/s SPR and RG Construction Pvt. Ltd.: Rs. 12.5505 crores. M/s Dugar Housing Ltd.: Rs. 6.8795 crores.
M/s SAS Realtors Pvt. Ltd.: Rs. 4.5 crores.
12) The above environmental compensation is being imposed on account of the intentional defaults and the conduct attributable only to the Project Proponents. We direct that the Project Proponents shall not pass on this compensation to the purchasers/prospective purchasers, as an element of sale.
14) All the project proponents are hereby prohibited from raising any further constructions, creating third party interest and/or giving possession to the 201 purchasers/prospective purchasers without specific orders of the Tribunal, after submission of the report by the Expert Committee."
The National Green Tribunal declared the official memoranda dated 12.12.2012 and 27.06.2013 as ultra-vires to the provisions of the Act of 1986 and the 2006 Notification as they suffer from the infirmity of lack of inherent jurisdiction and authority and accordingly, the Tribunal quashed the above two Official Memoranda. Therefore, the directions issued in terms of judgment of the Madras High Court in Puducherry Environment Protection Association v. Union of India (referred supra) are no more applicable to the present facts of the case.
37 HACJ & MSM,J W.P.No.2881 of 2019 Though Clause 8 (iii) of EIA contemplates deemed clearance, if no decision is intimated within the specified period. But the same cannot be applied to the present facts of the case for the reason that when credible action is initiated as admitted by the petitioner in paragraph No.18 of the affidavit, the petitioner has to comply certain requirements as contemplated in various notifications issued by the Government from time to time which we referred above and the deemed clause will have no application for the violation cases and the Apex Court in "Secretary, Kerala State Coastal Management Authority v. DLF Universal Ltd." (referred supra) clarified the deemed permission. Having considered the facts and circumstances of the cases, more particularly, credible action taken against the petitioner, it is difficult to conclude that the petitioner is not required to obtain E.C. for running mining operations within the lease area. Therefore, the contention of the petitioner is that he is entitled to run the mining activity based on deemed E.C. under clause 8 (iii) of EIA 2006 is contrary to law and various proceedings referred supra and he has to obtain compulsory E.C. to run quarrying operations. Therefore, we find no force in the argument of the learned counsel for the petitioner and the petition is devoid of merits.
In the result, the writ petition is dismissed. No costs. Consequently, miscellaneous applications pending if any, shall stand closed.
_______________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY 05.09.2019 Ksp