Gauhati High Court
Page No.# 1/ vs The Union Of India And 5 Ors on 21 May, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/10
GAHC010228512024
2025:GAU-AS:6395
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5628/2024
SUJIT SARKAR
SON OF LATE SUDHIR SARKAR,
RESIDENT OF VILLAGE AND P.O.- KHAIRABARI,
DISTRICT- BARPETA, PIN- 781315,
ASSAM.
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE MINISTRY OF
ENVIRONMENT, FORESTS AND CLIMATE CHANGE,
GOVERNMENT OF INDIA,
INDIRA HAVING ITS OFFICE AT PARYAVARAN BHAWAN,
JORBAGH ROAD, NEW DELHI- 110003.
2:THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY
ASSAM
REPRESENTED BY ITS MEMBER SECRETARY
AND HAVING ITS OFFICE AT BAMUNIMAIDAM
GUWAHATI- 781021
ASSAM.
3:THE STATE OF ASSAM
REPRESENTED BY ENVIRONMENT AND FOREST DEPARTMENT
GOVERNMENT OF ASSAM
DISPUR- 781006
KAMRUP(M)
ASSAM.
Page No.# 2/10
4:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST
ARANYA BHAWAN
PANJABARI
GUWAHATI- 781037
DISTRICT- KAMRUP(M)
ASSAM.
5:THE DIVISIONAL FOREST OFFICER
NORTH KAMRUP DIVISION
RANGIA
ASSAM.
6:THE RANGE OFFICER
BARPETA ROAD RANGE
BARPETA
ASSAM
Advocate for the Petitioner : MR. M K CHOUDHURY, MR. M SARMA
Advocate for the Respondent : DY.S.G.I., MR. A K DUTTA (R-1,2(C.G.C)),SC, FOREST
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
21.05.2025 Heard Mr. M. Sarma, learned counsel for the petitioner. Also heard Mr. A.K. Duta, learned counsel for the respondent Nos.1 & 2 and Mr. R.R. Gogoi, learned counsel for the respondent Nos.5 & 6.
2. The petitioner's case is that the petitioner has been settled with the NKD- B-2 Safakama Mining Contract area for extraction of sand and stone for 7 years till 31.10.2025. As per the Agreement dated 29.10.2018, executed between the petitioner and the Government of Assam, the petitioner was to extract 1000 cum of sand and 2500 cum of stone annually. To enable the petitioner to extract Page No.# 3/10 sand and stone, Environmental Clearance Certificate was required to be issued by the respondent No.1. As such, the respondent No.1 issued Environmental Clearance Certificate vide letter No. SEIAA.876/2018/EC/13 dated 12.10.2018, for a period of 5 years from 12.10.2018, which was extendable by another 2 years, subject to availability of materials.
3. As the 5 years Environmental Clearance Certificate, issued vide the above letter dated 12.10.2018, had expired, the petitioner applied for extension of the Environmental Clearance Certificate, which was given vide letter No. SEIAA.875/2018/EC/29 dated 03.01.2024, for a further period of 6 months, on the ground that the minerals left were too meagre.
4. The petitioner's counsel submits that as the petitioner was to extract 1000 cum of sand along with 2500 cum of sand every year, there was no justification for limiting the extension of the Environmental Clearance Certificate to only 6 months. He submits that unless the extension period was given for the remaining 2 year period of settlement of the mining contract area, precious time would be lost in applying for further extension. He accordingly prays that a direction should be issued to the respondent authorities, to extend the Environmental Clearance for the remaining period of 1 ½ years, as has been given to another tenderer, Sri Himangshu Nath, as reflected in Annexure-I of the writ petition, which pertains to mining permission given for sand and stone, to be extracted by the tenderer therein.
5. The petitioner is aggrieved by being given extension of his Environmental Clearance Certificate for only 6 (six) months, despite the petitioner's settlement Page No.# 4/10 period for extraction of sand and stone coming to an end on 30.10.2025. The petitioner had approached this Court by WP(C) 1617/2024 with regard to the above issue. This Court disposed of WP(C) 1617/2024, vide order dated 24.04.2024, by directing the respondent no.2 to consider extension of the petitioner's Environmental Clearance for the remaining 1½ years, provided that the petitioner submitted his application for the same within two weeks.
6. The petitioner's counsel submits that the petitioner submitted an application for further extension of his Environmental Clearance for 1½ years, in terms of the order dated 24.04.2024 passed in WP(C) 1617/2024. The same was rejected by the respondent no.2, vide letter dated 18.10.2024 on the ground that though the petitioner had applied for Environmental Clearance for a period of two years up to 30.10.2025, the petitioner's approved mining plan was valid only up to 14.05.2025.
7. The petitioner's counsel submits that the existing mining contract of Sri Himangshu Nath was for 7 years and his mining plan was prepared and approved on 07.09.2017. The seven years settlement period for the said mining area had expired on 06.09.2024. Despite the same, the respondent no.2 had given the Environmental Clearance extension for two years, i.e. uptill 29.12.2024 to Sri Himangshu Nath, i.e. even beyond the expiry period of the approved mining plan of Sri Himangshu Nath. As the petitioner's approved mining plan was valid till 14.05.2025, the respondent no.2 could not have rejected the petitioner's application for Environmental Clearance prior to 14.05.2025. In any event, Environmental Clearance extension can be given beyond the validity period of the approved mining plan, as had been done for Page No.# 5/10 Sri Himangshu Nath.
8. The petitioner's counsel submits that though the petitioner had been selected as the successful tenderer for the mining contract, the sequence of events that is required to be followed for extracting sand and stone is that Environmental Clearance has to be first obtained by the successful tenderer. Thereafter, the mining plan has to be approved by the Forest Department and finally, the settlement agreement has to be made between the parties.
9. The petitioner's counsel submits that the Environmental Clearance had been issued for a period of 5 years vide letter dated 12.10.2018 and the mining plan had been approved sometime in 2018. Thereafter, the settlement agreement was executed on 29.10.2018, effective from 01.11.2018. As the settlement period was for a period of 7 years, the settlement period is to expire on 30.10.2025. The extension of 2 years applied for earlier, had been granted to the extent of 6 months and not for the remaining 2 years, as was required for the petitioner to have completed working during his settlement period. He submits that when an Environmental Clearance extension had been given for 2 years to another tenderer, i.e., Sri Himangshu Nath, with regard to another contract mining area, there is no reason for the respondent Nos.1 & 2 not to give Environmental Clearance for the remaining 1½ years, as the settlement period of the mining area had been made for 7 years.
10. Mr. A.K. Dutta, learned counsel for the respondent Nos.1 & 2 submits that the prayer of the petitioner for extension of the Environmental Clearance had been rejected in terms of Paragraph 2(IV)(a), (b) & (c) of the affidavit of the respondent No.2, which is as follows:-
Page No.# 6/10 "a. The conditions of the EC as were required mandatorily to be fulfilled by the Proponent were not complied with leading to such irregularities lacking due vigilance in the mining area to avert any kind of irregularities / illegalities during the mining period.
b. Essential Document Sought (EDS) reply were furnished partially, with in-complete information, by the project Proponent as uploaded only on 08.08.2024 that too without adhering to time and compliance of requisite Conditions of the EC as emerged during the course of deliberation.
c. The DFO, North Kamrup Division had submitted vide letter No B/MHL/853-54 dated 30.07.2024 that the Mining area is lying idle since 12.10.2023, after the expiry of the EC and also after expiry of the extended term upto 02.07.2024 which indicates that the Proponent has not availed the chance of extraction of mineral even after grant of extension of the EC by another 6 (six) months which was at his risk and cost."
11. He further submits that Environmental Clearance had been extended for Sri Himangshu Nath, for another 2 years beyond the initial period of 5 years, as the mining contract area of Sri Himangshu Nath was larger in area than the petitioner's mining contract area.
12. Mr. R.R. Gogoi, learned counsel for the Forest Department submits that though the validity of the mining plan of the petitioner had been approved up-to 14.05.2025, the same can be extended, provided the Environmental Clearance is extended by the respondent Nos.1 & 2, inasmuch as, the validity of the petitioner's mining contract area is till 30.10.2025.
13. I have heard the learned counsels for the parties.
Page No.# 7/10
14. As can be seen from the impugned letter dated 18.10.2024 issued by the respondent No.2, the Environmental Clearance that had been given to the petitioner has not been extended beyond 5½ years, only because the petitioner's approved mining plan was valid only up to 14.05.2025. The extract of the impugned letter dated 18.10.2024 rejecting the petitioner's application for extension of the Environmental Clearance is reproduced hereinbelow as follows:-
"The extension of the EC for a period of 2 (Two) Years up to 30.10.2025 not covered by the approved mining plan (valid up to 14.05.2025) from the competent authority is impermissible in view of the above explanations and observations and, therefore, SEAC is of the considered opinion to reject the plea of the Proponent who is a beneficiary to the EC not permissible under extant law.
Therefore, Extension of the EC is rejected by the SEIAA with the terms & Conditions laid down by the SEAC."
15. The fact that the Environmental Clearance of Sri Himangshu Nath had been extended for another period of 2 years, beyond 5 years and beyond the validity of the approved mining plan, goes to show that the rejection of the petitioner's application for extension of the Environmental Clearance beyond the validity period of the approved mining plan is arbitrary and discriminatory. In any event, the counsel for the Forest Department has stated that the approved mining plan of the petitioner which is valid up to 14.05.2025, would be extended till 30.10.2025, if the extension of Environmental Clearance is given by the respondent Nos.1 & 2.
16. This Court on considering the fact that the petitioner's settlement period of the mining contract area is till 30.10.2025 and keeping in view the fact that in Page No.# 8/10 a similar case of Sri Himangshu Nath, extension of Environmental Clearance had been given beyond the validity period of the approved mining plan, there is no reason to reject the petitioner's application for extension of his Environmental Clearance, on the ground that the validity of the approved mining plan was till 14.05.2025.
17. The submission made by the counsel for the respondent Nos.1 & 2 that the contract mining area of Sri Himangshu Nath is bigger than the contract mining area of the petitioner and hence, extension of the Environmental Clearance for Sri Himangshu Nath had been approved, is discriminatory and in violation of Article 14 of the Constitution. This is due to the fact that the size of the contract mining area cannot be a reasonable ground for rejecting or allowing the extension of an Environmental Clearance Certificate.
18. With regard to the contention of the counsel for the respondent Nos.1 & 2 that the petitioner's application for extension of the Environmental Clearance had been rejected on three other grounds, that had been referred to in the Paragraph 2(IV)(a), (b) & (c) of the affidavit of the respondent No.2, besides the expiry of the validity period of the approved mining plan, this Court is of the view that the 3 additional grounds referred to above, cannot justify the rejection of the petitioner's application due to the fact that the respondent Nos.1 & 2 cannot be allowed to justify it's actions beyond the reasons given in the impugned letter dated 18.10.2024. In this respect, it would be profitable to refer to the judgments of the Supreme Court in the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, reported in AIR 1952 SC 16 and Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner, New Delhi and Ors., reported in (1978) 1 SCC 405.
Page No.# 9/10
19. In the case of Gordhandas Bhanji (supra), the Supreme Court held that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
20. In the case of Mohinder Singh Gill (supra), the Supreme Court held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.
21. In view of the judgments of the Supreme Court, as stated above, this Court is of the view that the additional grounds for rejecting the petitioner's application for extension of his Environmental Clearance, not having been provided in the impugned letter dated 18.10.2024, this Court is of the view that the said grounds mentioned in Paragraph 2(IV)(a), (b) & (c) of the affidavit of the respondent No.2 cannot be used as a basis for rejecting the petitioner's application for extension of his Environmental Clearance.
22. On considering all the above reasons, this Court finds that the respondents have arbitrarily denied the petitioner extension of his Environmental Clearance. Consequently, the impugned letter dated 18.10.2024 Page No.# 10/10 is hereby set aside. The respondent Nos.1 & 2 are directed to immediately issue order/s for extension of the petitioner's Environmental Clearance Certificate.
23. The writ petition is accordingly disposed of.
JUDGE Comparing Assistant