Andhra Pradesh High Court - Amravati
L Srinivas 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.2882 OF 2019
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) This petition under Article 226 of the Constitution of India is filed by the petitioner claiming a writ of mandamus declaring the proceedings dated 22.05.2018 and 30.05.2018 issued by respondent Nos.3 and 5 vide proceedings Order No.8136/APPCB/ZO-VSP/2018- 253 and notice No.1232/Q/2010 as illegal, arbitrary, without jurisdiction and violative of E.I.A. 2006 and notifications thereunder and consequently set-aside the order and notice referred supra.
The petitioner obtained mining permission/license for extraction of colour granite vide proceedings No.51632/R1-1/2010 dated 10.05.2012 from Government of Andhra Pradesh through respondent No.2 for an extent of Ac.16.214 hectares in Sy.No.168 of Kusumala Village, Mandasa Mandal, Srikakulam District and quarry lease was executed on 20.06.2012, which would expire by 19.06.2032, by the respondent No.3. The "Granite" being the minor mineral, lease would be granted as per the A.P. Minor Mineral Concession Rules, 1966. The A.P. Minor Mineral Concession Rules, 1966 (for short "the Rules") are framed under Section 15 of the Mines and Minerals (Regulation and Development) 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. Rule 12 specifies Quarry lease for minor minerals other than "Sand". According to Rule 12 (5) (h) the Licensee or lessee for extraction of granite or marble shall observe the HACJ & MSM,J W.P.No.2882 of 2019 2 provisions of Granite Conservation and Development Rules, 1999 or the provisions of Marble Development and Conservation Rules, 2002 as the case may be.
The above rules would clearly show that protection of environment is factored in the mining Rules for Granite unlike other Minor Minerals especially sand. Rule 52 of the Granite Conservation and Development Rules, 1999 makes it applicable to granite leases under the Rules. As per Rule 5 (3) of 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 Environmental Impact Assessment (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.
EIA notification was issued on 14.09.2006 enlarging the type of industries requiring prior E.C for mining of minerals (major (or) minor) in areas less than 50 hectares. Clause 8 (i) provides that the regulatory authority has to consider report of Expert Appraisal Committee (EAC)/State Level Expert Appraisal Committee (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) and 8 (iii), the applicant can proceed as if the environmental clearance sought for has been granted (deemed granted).
The petitioner applied for EC to the respondent No.6 on 20.12.2012 informing that the petitioner was granted mining lease in HACJ & MSM,J W.P.No.2882 of 2019 3 S.No.168 of Kusumala Village, Tekkali Mandal, Srikakulam District and duly filled in application in Form-I was enclosed thereto. Though application was received and acknowledged, no action was initiated by the respondent Nos.4 and 6. The application for E.C. would be screened on whether the project requires further study for preparation of EIA for its appraisal for issuance of EC depending on nature and location of project. Petitioner's mine is located in a dry arid area and mining would not affect the ecology around the area. Hence, there would be no requirement of EIA for petitioner's mine. In view of clause 8 (iii) of EIA, 2006 the petitioner was deemed to have been granted E.C. The petitioner again submitted online application for E.C. on 22.09.2017 as the petitioner was informed about change in the procedure for grant of E.C. and online applications would only be considered. Respondent No.4 in response thereto vide letter dated 12.10.2017 observed that E.C. was recommended to the petitioner's project but the same was referred for legal examination as a writ petition was pending before Madras High Court questioning notification S.O.804 (E) dated 14.03.2017 issued by Union of India. The said writ petition was disposed of on 13.10.2017. As per the notification dated 15.01.2016, if the lease area is less than 25 hectares, it does not require public hearing for issuance of E.C. Similarly situated ten persons in the same District are carrying on granite mining business and obtained E.Cs in 2016 on the basis of the Rules for issue of E.C. existing as on that date. However, the application of the petitioner was pending without any reasonable cause till date. While the matters stood thus, respondent No.5 without any notice directed the petitioner to stop quarrying in the land on the ground that he has not obtained E.C., CFE & CFO.
HACJ & MSM,J W.P.No.2882 of 2019 4 Respondent No.3 on 30.05.2018 also issued similar order. It is further contended that non-processing of application of E.C. since 20.12.2012 was solely due to laxity of the respondents and for no fault of the petitioner. Therefore, the impugned order to stop quarry work is illegal.
No E.C. is required as per EIA notification 1994 and 2006 if project is actually commenced prior to those notifications. As there was no requirement, the petitioner did not obtain E.C and his mining lease was covered by the earlier notifications 1994 and 2006, but not by the later notification issued by the Government. Thereby, issue of such order dated 22.05.2018 and 30.05.2018 by respondent Nos.3 and 5 vide proceedings, Order No.8136/APPCB/ZO-VSP/2018-253 and notice No.1232/Q/2010 are illegal and without jurisdiction and violative of EIA Notification 2006.
Respondent No.6 filed counter and admitted that the lease granted in favour of the petitioner is valid for a period of 20 years from 20.06.2012 to 19.06.2032 vide proceedings No.1232/Q/2010 dated 20.06.2012. Respondent No.6 also admitted about the approval of mining plan by Deputy Director of Mines and Geology, Visakhapatnam vide letter No.213/OSM-TKL/2017 dated 18.05.2017 for 5 years.
Respondent No.6 specifically contended that the SEAC in its meeting held on 30.06.2015 and SEIAA meeting held on 16.07.2015, it is recommended to reject the Environmental Clearance vide Lr.No.SEIAA/AP/SKM-253/2014, dated 03.08.2015 and also proposed to initiate further action as per MoEF&CC instructions in violation cases. Accordingly, a case was filed against the project proponent before the Judicial Magistrate of First Class, Tekkali in C.C.No.268 of 2016.
HACJ & MSM,J W.P.No.2882 of 2019 5 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, only after taking 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 under Section 5 of the Environment (Protection) Act, 1986 will be issued by the MoEF&CC in respect of the violations and the project proponent has to comply with the requirements. 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 reopen for consideration only when legal action had been initiated. The High Court of Jharkhand in Hindustan Copper Limited v. Union of India1 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 1 Order dated 28.11.2014 in W.P.CC.No.2364 of 2014 HACJ & MSM,J W.P.No.2882 of 2019 6 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 project proponents violated the provisions of EIA Notification of 2006 and to see that costs of violation and damage to environment are adequately compensated for. Such damages are legally provided to be covered under the provisions of the 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 India2 and a Division Bench of the High Court of Madras based on the undertaking given by the Additional Solicitor General, held that 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&CC 2 Order dated 13.10.2017 in W.P. No.11189 of 2017 HACJ & MSM,J W.P.No.2882 of 2019 7 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&CC for extension of time for submission of proposals by project proponents was extended by 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&CC 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 India3, the Apex Court passed a detailed order interpreting Section 21(5) of the MMDR Act, 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.
On 22.09.2017 the petitioner submitted an online application for issue of E.C. and the same was examined on 07.10.2017 and noted as follows:
"This project proposal was appraised for the environmental aspects and recommended for issue of Environmental Clearance to this Colour Granite mining project for the production quantities of Colour Granite: 33337.2 m3/annum, subject to the applicability of orders issued by the Hon'ble High Court of Madras vide W.P.No.11189/2017 and W.P.M.P.No.12134 of 2017"3
(2017) 9 SCC 499 HACJ & MSM,J W.P.No.2882 of 2019 8 The SEIAA vide Lr.No.SEIAA/AP/SKM/MIN/09/2017/430- 1208 dated 12.10.2017 communicated to the project proponent that the issue was again placed before the SEIAA in its meeting held on 10.10.2017 and took a decision that the same has to be examined legally and deferred. Subsequently, MoEF&CC, Government of India, New Delhi issued a Notification No.S.O.1030 (E) dated 08.03.2018 that the cases of violation of the projects or activities covered under Category B, the appraisal and approval thereof shall vest with the SEIAAs. Further, MoEF&CC has issued Office Memorandas dated 15.03.2018 and 16.03.2018 to submit the proposals afresh within 30 days, to the EAC for Category A projects or the SEAC/SEIAA in the respective States/UTs for Category B projects and also issued certain instructions on processing of applications of violation cases. Accordingly, the SEIAA, Andhra Pradesh in its meeting held on 20.03.2018 decided that all the project proponents of violation cases shall be informed to apply afresh to SEIAA, Andhra Pradesh for further consideration of issue of TOR/EC as per the said notification and Official Memorandum and the SEIAA, Andhra Pradesh issued a public notice in the local daily newspapers on 27.03.2018.
Respondent No.6 also addressed a letter to the project proponent on 27.03.2018 to file application afresh, through online to the SEIAA, Andhra Pradesh as a violation case for consideration of Terms of Reference (TOR)/Environmental Clearance (EC) within 30 days from the date of issue of MoEF&CC vide office memorandum dated 16.03.2018.
Again the issue with regard to violation cases was discussed in SEAC, A.P meeting held on 08.04.2018 and the SEAC after deliberations have recommended constituting a Sub-Committee with members of SEAC and Experts, the same was accepted by the HACJ & MSM,J W.P.No.2882 of 2019 9 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 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 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 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.
After the above decision, the respondents requested the project proponent on 02.11.2018 to submit the notarized affidavit for further processing of project proposal for consideration of Environmental Clearance/Terms and Reference and it is pending for consideration.
Thus, it is evident from the record that the petitioner has neither approached the authorities nor filed any application so far for obtaining CFE/CFO from A.P. Pollution Control Board. The APPCB has issued stop production order for operating the mine without obtaining CFE/CFO of the Board. The Apex Court in "Common Cause v. Union of India" (referred supra) directed the State Boards to take appropriate action against illegal operation of the mining activities carried out in violation of Environmental Protection Act, HACJ & MSM,J W.P.No.2882 of 2019 10 Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 and that Central Pollution Control Board has issued directions vide order dated 17.01.2018 directing all red, orange, green category units not to continue their operations till the units obtain valid consent to operate from the Board.
The respondents also contended that prior to the grant of mining plan itself, the petitioner started mining operations and that the SEAC in its meeting held on 30.06.2015 and SEIAA meeting held on 16.07.2015, the Committee recommended to reject the Environmental Clearance vide Lr.No.SEIAA/AP/SKM-253/2014, dated 03.08.2015 to the project proponent and also to initiate further action as per MoEF&CC instructions on violation cases. A case was filed against the project proponent in the Judicial Magistrate of First Class, Tekkali in C.C.No.268 of 2016. Therefore, the proceedings issued by the respondents are not illegal.
It is also contended that as per EIA Notification 2006, as amended from time to time has stated that the environmental clearance process for B Category projects require (1) Screening; (2) Scoping; (3) Public Consultation; and (4) Appraisal. The project proponent at the stage of "Screening" has to submit application in Form I to the SEAC for determining whether the project requires further environmental studies for preparation of Environment Impact Assessment (EIA) for its appraisal prior to the grant of Environmental Clearance. In case of violation all projects require EIA report. The next stage is "Scoping" where the Expert Appraisal Committee i.e. SEIAA must determine detailed and comprehensive Terms of Reference (TOR) for the preparation of EIA report. Therefore, the respondents did not violate any of the terms in issuing impugned HACJ & MSM,J W.P.No.2882 of 2019 11 orders and the deemed grant of E.C. is not applicable to violation cases, consequently, the petitioner is not entitled to claim any relief and prayed for dismissal of the petition.
During hearing, Sri N.Vijay, learned counsel for the petitioner, submitted his written arguments while reiterating the allegations made in the petition and contended that the subsequent notifications will have no retrospective operation and placed reliance on several judgments, which will be discussed at appropriate stage.
Learned counsel for the respondents contended that the petitioner himself applied for E.C and got rejected the same initially and again made online application for grant of E.C., the petitioner cannot now contend that subsequent notifications will have no retrospective effect and placed reliance on certain judgments in support of his contentions while referring to the notifications issued by the State Government and MoEF&CC, which will be referred at appropriate stage and prayed for dismissal of the petition.
Considering rival contentions and perusing the material available on record, the points that arise for consideration in this writ petition are as follows:
1) Whether subsequent notifications issued by the Government be given retrospective effect. If so, whether the petitioner is required to obtain environmental clearance for continuation of mining operations in the leased area?
2) Whether the petitioner commenced mining operations prior to 2006? If so, whether E.C is required for continuation of mining operations by the petitioner subsequent to 2006. If so, whether stop production order is not valid?
HACJ & MSM,J W.P.No.2882 of 2019 12 POINT NO.1:
The petitioner obtained lease of mining area in Form-G from Director of Mines and Geology, Tekkali, Srikakulam District vide Proceedings No.51632/R1-1/2010 dated 10.05.2012, for extraction of colour granite over an extent of Ac.16-214 hectares in Sy.No.168 of Kusumala Village, Mandasa Mandal, Srikakulam District for a period of 20 years. Therefore, the lease or license is subsisting as on the date of issuance of proceedings by the Andhra Pradesh Pollution Control Board. It is the specific case of the petitioner from the beginning that the lease is governed by the Rules for the Granite Conservation and Development Rules, 1999 and the Marble Development and Conservation Rules, 2002. The Granite Conservation and Development Rules, 1999 are part of Minor Mineral Concession Rules, but, they are relevant for granting license by the authorities concerned. The learned counsel for the petitioner has referred various Rules. Chapter-VI of the Granite Conservation and Development Rules, 1999, deals with systematic and scientific mining. Rule 29 thereof, mandates every holder of a prospecting license or a lease shall take all possible precautions for the protection of environment and control of pollution while conducting prospecting mining or processing of granite in the area for which such license or lease is granted. Thus, it means the lessee is under obligation to protect the public from pollution and those operations are governed by the Environment Protection Act. Rule 21 of the Marble Development and Conservation Rules, 2002, deals with system of working in marble quarries. Chapter-VI of the said Rules deals with systematic and scientific mining and Rule 25 is the relevant Rule which mandates that every holder of a prospecting HACJ & MSM,J W.P.No.2882 of 2019 13 licence or a lease shall take all possible precautions for the protection of environment and control of pollution while conducting prospecting mining or processing of marble in the area for which such licence or lease is granted. Therefore, the petitioner is bound to take necessary precautions in accordance with Rule 29 of the Granite Conservation and Development Rules, 1999 and Rule 25 of the Marble Development and Conservation Rules, 2002.
It is the specific contention of the petitioner that in Deepak Kumar v. State of Haryana4, a case with regard to auction notice issued by Mines and Geology Department of State of Haryana proposing to auction sand, road quarry and masonry stone mines referred to the Ministry of Environment and Forestry recommendations, 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 the 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 4 (2012) 4 SCC 629 HACJ & MSM,J W.P.No.2882 of 2019 14 notification issued by the Government made mandatory to obtain environmental clearance even for the minor minerals.
In view of the judgment in Deepak Kumar v. State of Haryana (referred supra), the MoEF&CC made certain recommendations and the Rules were made applicable to A.P. Minor Mineral (Concession) Rules, 1966 also. 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 framed, no case of granite and marbles, the Rules were already in vogue.
This contention of the peititoner cannot be accepted for the reason that the petitioner applied for environmental clearance on 20.12.2012, in view of the Central Government notification in its EIA Notification dated 14.09.2006 and the same was rejected by the Committee, vide Lr.No.SEIAA/AP/SKM-253/2014, dated 03.08.2015. Thereby the question of keeping the application pending before the authorities concerned does not arise. 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 is deemed to have been granted, but, the order of rejection by the Committee vide Lr.No.SEIAA/AP/SKM-253/2014, dated 03.08.2015 was communicated. Therefore, the deeming provision in the EIA Notification, 2006, has no application. The other contention that similarly placed persons were granted E.C. is not based on any material and even if any such E.C. was granted in their favour, the grant is only on account of strict compliance of guidelines issued by the Government. Hence, the contention of the petitioner is rejected.
HACJ & MSM,J W.P.No.2882 of 2019 15 It is an undisputed fact that respondent No.5 issued a notice dated 22.05.2018 to stop quarrying on the subject land since the petitioner has not obtained environmental clearance, CFE/CFO. The respondent No.3, on 30.06.2018 also issued a similar order. But, the notice dated 22.05.2018 issued by respondent No.5 is not due to latches on the part of the regulatory authorities, as the application of the petitioner dated 20.12.2012 is pending consideration.
The petitioner after 2005 applied for grant of environmental clearance and based on the material on record about extraction of volume in metric tones, actual production of wastage, the committee recommended to reject the environmental clearance of the project of this petitioner and decided to initiate credible action, as per Ministry of Environment instructions, on violation basis. Accordingly a calendar case was filed against the Project proponent before the Judicial Magistrate of First Class vide C.C.No.268 of 2016. But, this factum of rejection of environmental clearance to the project of this petitioner is not disclosed by the petitioner, except making a bald allegation that suitable action was initiated before the Judicial Magistrate of First Class, Tekkali. Therefore, for the reasons best known to the petitioner, he suppressed the rejection order dated 03.08.2015 and it is also one of the grounds to reject the relief claimed by this petitioner i.e. suppression of material fact.
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 HACJ & MSM,J W.P.No.2882 of 2019 16 penalty to the credit of the Judicial Magistrate of First Class, Tekkali, on the credible action taken by the authorities under the Environment (Protection) Act, 1986, as it is a violation 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 online application dated 22.09.2017 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 Ac.16-214 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 in its meeting held on 24.04.2018, considered the violation cases placed before the committee and informed all the project proponents who has filed their applications as per MoEF&CC, Government of India, vide Notification S.O.1030(E) dated 08.03.2018 and Official Memoranda dated 15.03.2018 and 16.03.2018, for further processing.
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&CC/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 HACJ & MSM,J W.P.No.2882 of 2019 17 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 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 HACJ & MSM,J W.P.No.2882 of 2019 18 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 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 with 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. The project comes under violation case and credible action taken report is not received from the Government by 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 Environmental Clearance certificate will be HACJ & MSM,J W.P.No.2882 of 2019 19 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 the site, which is permissible as per the prevailing laws 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.
Therefore, basing on these two guidelines of S.O.804(E), a credible action report has to be sent to the SEIAA, A.P, by the Special Chief Secretary to Government, but no such credible action report was received from the Government by SEIAA, A.P. 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 HACJ & MSM,J W.P.No.2882 of 2019 20 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 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 B-2, but it is applicable to Category-B projects in the State. Category-B includes B-1 and B-2. Though the case of the petitioner falls under Category-B-2, 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.
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 applications as per MoEF&CC, HACJ & MSM,J W.P.No.2882 of 2019 21 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 meetings and the SEIAA in its decided as follows:
iii. 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.
iv. The proposals (violation cases) received from 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 date 16.03.2018, got expired by 14.04.2018.
l. As per the decision of Authority, all the proposals (violation cases) received after 14th April, 2018 were returned vide letter dated 31.07.2018.
m. The Project Proponent submitted the EC application through online on 31.05.2018 (after 14th April, 2018) vide proposal No.SIA/AP/MIN/26257/2018 by enclosing penalty amount of Rs.40,000/- paid to the Hon'ble Judicial Magistrate of 1st Class, Tekkali on 27.09.2017, and the same was returned to the project proponent through online on 01.08.2018 as per the decision of the SEIAA, AP, in its meeting held on 02.07.2018."
In view of the above guidelines, the project proponent submitted environmental clearance application through online on 22.09.2017, along with Form I annexing a copy of the judgment in calendar case enclosing the receipt evidencing payment of penalty to the credit of the Judicial Magistrate of First Class, Tekkali, and the petitioner was asked to file an notarized affidavit in the proforma prescribed under the notifications, but so far, no such affidavit is submitted, as directed by SEIAA. Hence, it is pending for consideration. Thus, it is evident that the petitioner himself admitted violation and paid penalty to the credit of the Judicial HACJ & MSM,J W.P.No.2882 of 2019 22 Magistrate of First Class, Tekkali, after expiry of the date fixed by the SEIAA, AP for submission of application. The petitioner submitted his application through online for grant of environmental clearance after last date for submission of application. Therefore, pendency of application for grant of environmental clearance is in accordance with the decision taken by the SEIAA, AP and SEAC, AP.
In view of the EIA Notification dated 14.09.2006 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 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:
HACJ & MSM,J W.P.No.2882 of 2019 23 "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."
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 HACJ & MSM,J W.P.No.2882 of 2019 24 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 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 main endeavour of the learned counsel for the petitioner is that, the subsequent notification issued by the State cannot be applied to the leases granted prior to the notification and placed reliance on the judgment of the Apex Court in Hitendra Vishnu Thakur and others v. State of Maharashtra and others5. Learned counsel has also placed reliance on the judgment in CIT v. Vatika Township6, wherein, the Apex Court held as follows:
"The relevant provisions pertaining to the surcharge on block assessment are contained in Chapter XIV-B of the IT Act. The purpose of this chapter is to lay down a special procedure for assessment of search cases with a view to combat tax evasion and also to expedite and simplify assessments in search cases. Insofar as rates of tax chargeable in case of block assessment is concerned, that is not provided in the Finance Acts. Pertinently, the provision to this effect 5 (1994) 4 Supreme Court Cases 602 6 2015 (1) SCC 1 HACJ & MSM,J W.P.No.2882 of 2019 25 has been made in the Income Tax Act itself and is contained n Section 113 of the IT Act. It is thus clear that though provision for surcharge under the Finance Acts has been in existence since 1995, insofar as levy of surcharge for block assessment is concerned, it was only introduced by insertion of aforesaid proviso to Section 113 of the IT Act.
The choice of a particular date would have material bearing on the payment of surcharge. Not only the surcharge is different for different years, it varies according to the category of assessees and for some years, there is no surcharge at all. Rate at which tax, or for that matter surcharge is to be levied is an essential component of the tax and where the rate is not stipulated or it cannot be applied with precision, it would be difficult to tax a person. In absence of certainty about the rate because of uncertainty about the date with reference to which the rate of surcharge is to be applied, it cannot be said that surcharge as per the existing provision was leviable on block assessment qua undisclosed income. Therefore, it cannot be said that the proviso added to Section 113 of the IT Act defining the said date was only clarificatory in nature."
The law declared by the Apex Court in the above judgments is not in quarrel, but the principle laid down in those judgments is distinguishable on facts. There, the interpretation of law was enacted by the Government and applying the same the ex-post facto event was considered. But, in the present facts of the case, the petitioner himself submitted to the jurisdiction of Andhra Pradesh Pollution Control Board and applied for Environmental Clearance initially, which was rejected by the SEAC in its meeting held on 30.06.2015 and SEIAA dated 16.07.201 decided to reject the environmental clearance vide Proceedings dated 03.08.2015 and to initiate credible action against the petitioner and to file a complaint before the Judicial Magistrate of First Class, Tekkali vide C.C.No.268 of 2016. When the petitioner himself submitted to the jurisdiction of Pollution Control Board and sought for Environmental Clearance initially, which was rejected, as stated supra and again applied for environmental clearance through online, annexed appendix No.1 to the Director and submitting an affidavit, but it is pending before the HACJ & MSM,J W.P.No.2882 of 2019 26 concerned authority. The petitioner having submitted to the jurisdiction and claimed environmental clearance more than once, now, he cannot contend that the notification issued by the State and Central Government has no application, by applying the principle of estoppel as held in The Ramjas Foundation v. Union of India7 and K.P. Srinivas v. R.M. Premchand8. On this sole ground, it is difficult to accept the contention of the learned counsel for the petitioner to hold that these notifications will have no retrospective effect. Accordingly, we hold that, based on the fact situation in the present case, the petitioner is liable to obtain EC/CFE and CFO for continuing the mining operations, though the lease was obtained prior to issue of notification. Accordingly the point is answered. POINT No.2:
As discussed in Point No.1, the petitioner is required to obtain EC, CFE/CFO and he is not entitled to continue mining operations for extraction of colour granite from leased area and therefore, respondent No.3 issued the stop order dated 30.05.2018 which cannot be set-aside by this Court while exercising jurisdiction under Article 226 of the Constitution of India on more than one ground.
The first ground is that the petitioner did not disclose the material fact i.e. rejection of his application by the Committee recommending to reject the Environmental Clearance vide Lr.No.SEIAA/AP/SKM-253/2014, dated 03.08.2015 of SEIAA and SEAC who decided to initiate credible action. But the petitioner disclosed initiation of credible action before the Junior Civil Judge, Tekkali, while suppressing the factum of rejection in its meeting.7
AIR 1993 SC 852 8 (1994) 6 SCC 620 HACJ & MSM,J W.P.No.2882 of 2019 27 Therefore, when the relief under Article 226 of the Constitution of India is discretionary, the petitioner must approach the Court with clean hands, disclosing the material. But, for one reason or the other, the petitioner did not do so. Therefore, on this ground also the petition is liable to be dismissed.
The petitioner did not obtain E.C initially and only after initiation of credible action, after rejecting the earlier request, the petitioner applied for obtaining E.C afresh through online application on 22.09.2017 annexing the required documents and it is pending for consideration.
The main contention of the petitioner is that though he applied for issuance of environmental clearance long prior to 31.07.2018, the SEIAA in various meetings considered the request of the project proponent and on 28.10.2018 also the authorities noted the recommendations of SEAC dated 13.10.2018 (extracted above) and arrived at different conclusions. At the same time, the project proponent i.e. the petitioner has submitted a notarized affidavit in Annexure-B which is annexed to the application, the check-list of EIA Notification, 2006. The issue was again examined by the SEAC in its meeting held on 25.11.2018 and observed as follows:
"The project proponent and their consultant M/s.Global Enviro Labs have attended the meeting.
The Committee noted that this Colour Granite Mine was operated during the period 2013 to 2017 without EC and thus comes under violation under the provisions of MoEF&CC, Notification S.O.No.804, dated 14th March, 2017. The credible action was initiated against the mine under Section 19 of E (P) Act and a case was filed in the Hon'ble Court, Tekkali (C.C.No.265/2016) and the penalty amount of Rs.40,000/- paid to the Hon'ble Court on27.09.2017.
The Committee after detailed deliberations on the proposal in the terms of the provisions of the MoEF&CC Notification S.O.No.804(E) dated 14th March, 2017, confirmed the case to be of HACJ & MSM,J W.P.No.2882 of 2019 28 violation of the EIA Notification, 2006 and recommended for issuance of Standard Terms of Reference (TOR) along with the following Specific Terms of Reference and to conduct the public hearing, for undertaking EIA and preparation of Environmental Management Plan (EMP) by this Colour Granite Mine for production of Colour Granite - 15,846 M3/annum."
The SEIAA, AP, it its meeting held on 02.01.2019, discussed the issues on violations again and made the following corrections to the Specific Terms of Reference suggested by the SEAC for violation cases and the revised Specific Terms of Reference read as follows:
(i) the State Government/SPCB to take action against the project proponent under the provisions of Section 19 of the Environment (Protection) Act, 1986, and further no consent to operate to be issued till the project is granted EC (if credible action was not initiated);
(ii) the project proponent shall be required to submit a bank guarantee equivalent to the amount of remediation plan and natural and community resource augmentation plan with the SPCB prior to the grant of EC. The quantum shall be recommended by the SEAC and finalized by the regulatory authority. The bank guarantee shall be released after successful implementation of the EMP, followed by recommendations of the SEAC and approval of the regulatory authority;
(iii) Assessment of ecological damage with respect to air, water, land and other environmental attributes. The collection and analysis of data shall be done by an environmental laboratory duly notified under the Environment (Protection) Act, 1986, or an environmental laboratory accredited by NABL, or a laboratory of a Council of Scientific and Industrial Research (CSIR) institution working in the field of environment;
(iv) preparation of EMP comprising remediation plan and natural and community resource augmentation plan corresponding to the ecological damage assessed and economic benefits derived due to violation;
(v) the remediation plan and the natural and community resource augmentation plan to be prepared as an independent chapter in the EIA report by the accredited consultants;
(vi) funds allocation for Corporation Environment Responsibility (CER) shall be made as per ministry's O.M. No.22-65/2017-IA.III dated May, 2018 for various activities therein. The details of fund allocation and activities for CER shall be incorporated in EIA/EMP report;
(vii) detailed hydrological study to be carried out in core and buffer zone of the project as per recent GEC guidelines, 2015;
(viii) submission of report in tabular form regarding issues raised during hearing and commitment made by the PP;
(ix) the project proponent shall give an undertaking by way of affidavit to comply 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. before grant of ToR/EC.
The undertaking inter-alia includes commitment of the PP not to repeat any such violation in future;
(x) in case of violation of above undertaking, the ToR/Environmental Clearance shall be liable to be terminated forthwith;
(xi) the Environmental 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 HACJ & MSM,J W.P.No.2882 of 2019 29 2nd August, 2017 in Writ Petition (Civil) No.114 of 2014 in the matter of Common Cause versus Union of India and Ors.;
(xii) 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 & 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.; and
(xiii) all the statutory clearances/approvals/ permissions shall be obtained from various organizations/ departments like CGWA/SGWA/APPCB etc. before starting the project activity." Again the issue was examined in the meeting held on 18th/19th December, 2018 and the SEIAA, A.P agreed with the recommendations of SEAC, AP for issue of Standard Terms of Reference (TOR) along with additional Specific Terms of Reference and to conduct the public hearing.
Now the contention of the petitioner before this Court is that no public hearing be undertaken for issuance of environmental clearance. But, this issue is already covered by a recent judgment of the Supreme Court in Hanuman Laxman Aroskar v. Union of India with Federation of Rainbow Warriors v. Union of India9 wherein, the Supreme Court held that public hearing is mandatory and explained the process of Environmental Impact Assessment (EIA) in a flow chart. The flow chart therein describes step-by-step Environment Impact Assessment Process for Category 'A' Projects which starts with, Project concept and site identification, Form-I proposed Terms of Reference and pre-feasibility report submitted to the EAC, Scoping, Preparation of Terms of Reference by EAC, submission of draft EIA report to SPCB/UTPCC. Though the petitioner's project is B1 Category, still the principle laid down is applicable, since public hearing is mandated by authorities whether 'A' or 'B' category, it is compulsory.
9 Civil Appeal Nos. 12251 of 2018 and 1053 of 2019 Dt 29.03.2019 HACJ & MSM,J W.P.No.2882 of 2019 30 By applying the principle of law in the above judgment, it is difficult to accept the contention of the petitioner that no public hearing is required.
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:
"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 HACJ & MSM,J W.P.No.2882 of 2019 31 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 natural resource which is intended for the benefit of everyone and not only for the benefit of the mining lease holders."
In view of the law laid down by the Apex Court in above judgment, the project proponent has to adhere to the provisions of 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 paragraphs 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 HACJ & MSM,J W.P.No.2882 of 2019 32 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 assigned in Point No.1.
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 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 HACJ & MSM,J W.P.No.2882 of 2019 33 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."
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 E.C 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 E.C 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 HACJ & MSM,J W.P.No.2882 of 2019 34 NOC from the SPCB. Therefore, the principle laid down in the above said judgment will not enure any benefit to the petitioner.
In another judgment in Secretary, Kerala State Coastal Management Authority v. DLF Universal Ltd.10, 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 in Para 8(2) 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 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 India11 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 10 (2018) 2 SCC 203 11 2015 SCC OnLine NGT 169 HACJ & MSM,J W.P.No.2882 of 2019 35 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 ultr-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 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."
HACJ & MSM,J W.P.No.2882 of 2019 36 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 Notification 2006, 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.
On overall consideration of the entire law and the Official Memoranda issued by the Government from time to time, it is clear that when TOR was issued, a public hearing by the SEAC is mandatory and the Apex Court in Hanuman Laxman Aroskar v. Union of India with Federation of Rainbow Warriors v. Union of India (referred supra) made it clear that public hearing is mandatory.
In any view of the matter, the petitioner in this writ petition sought the relief of declaring the proceedings dated 22.05.2018 and 30.05.2018 issued by respondent Nos.3 and 5 vide proceedings Order No.8136/APPCB/ZO-VSP/2018-253 and notice No.1232/Q/2010, as illegal, arbitrary, without jurisdiction and violative of E.I.A. 2006 notification. But, the said proceedings cannot be declared as illegal for the simple reason that it is a violation case and as per the Official Memoranda referred above, the judgment of the Apex Court and when the Standard Terms of Reference was issued, a public hearing was mandatory. Therefore, we find no ground to quash the impugned proceedings declaring the proceedings dated 22.05.2018 and 30.05.2018 issued by respondent Nos.3 and 5 vide proceedings Order No.8136/APPCB/ZO-VSP/2018- HACJ & MSM,J W.P.No.2882 of 2019 37 253 and notice No.1232/Q/2010, while holding that when TOR was issued, public hearing is necessary. Accordingly, this point is answered.
In view of our findings on point Nos.1 and 2, the Writ Petition is dismissed, while directing the 4th respondent to proceed in accordance with law, in processing the applications submitted by the petitioner through online dated 22.09.2017 and take appropriate action. No costs.
Consequently, miscellaneous applications pending if any, shall stand closed.
_______________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 05.09.2019 sp