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108. On 14th September, 2006 another EIA Notification was issued by the MoEF. This notification (for short EIA 2006) required prior EC for projects or activities mentioned in the Schedule to it both for major as well as minor minerals if the leased area is 5 hectares or more. We were informed that several mining lease holders, in compliance with EIA 2006, applied for and were granted an EC.

109. It was submitted by learned counsel for the mining lease holders that the confusion, vagueness and uncertainty caused by EIA 1994 and subsequent circulars and other communications did not end with the issuance of EIA 2006. Reference was made to a circular dated 13 th October, W.P. (C) Nos. 114/2014 etc.  2006 which deals with interim operational guidelines till 13 th September, 2007 in respect of applications made under EIA 1994. We do not see the relevance of this circular (which really dealt with transitional issues) not only for the reason given in M.C. Mehta that circulars cannot override statutory notifications but also because it deals with the procedure for considering applications made under EIA 1994.

113. Reference was also made to Office Memorandums dated 16th November, 2010 and 12th December, 2012 but having gone through them we find them of little relevance as they deal with procedural issues only.

114. 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 27 th 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.

115. An attempt was then made by learned counsel for the mining lease holders to get out of the rigours of EIA 1994 and EIA 2006 by contending W.P. (C) Nos. 114/2014 etc.  that some of them had modified the mining plan (with approval) and that therefore they had extracted iron ore or manganese ore, as the case may be, in terms of the mining plan but not necessarily in terms of the EC that had been obtained, if at all.

116. We have already held that a mining plan is subordinate to the EC and in M.C. Mehta it was held by this Court that having an approved mining plan does not imply that a mining lease holder can commence mining operations. That being so, a modified mining plan without a revised or amended EC, is of no consequence. What the contention of learned counsel suggests to us is that under the shield of a modified mining plan, illegal or unlawful mining in the form of mining without an EC, mining by over-reaching EIA 1994 and EIA 2006 was being carried out.

124. We are not in agreement with learned counsel for the mining lease holders. There is no doubt that the grant of an EC cannot be taken as a mechanical exercise. It can only be granted after due diligence and reasonable care since damage to the environment can have a long term impact. EIA 1994 is therefore very clear that if expansion or modernization W.P. (C) Nos. 114/2014 etc.  of any mining activity exceeds the existing pollution load, a prior EC is necessary and as already held by this Court in M. C. Mehta even for the renewal of a mining lease where there is no expansion or modernization of any activity, a prior EC is necessary. Such importance having been given to an EC, the grant of an ex post facto environmental clearance would be detrimental to the environment and could lead to irreparable degradation of the environment. The concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006. We make it clear that an EC will come into force not earlier than the date of its grant.