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Judgment
Jagnnath Sinnari, - Appellant, herein has impugned communication dated May 26th, 2014, of Deputy Secretary, Environment Department, Mantralaya, Mumbai, whereby, his Application for grant of Environment Clearance (EC), was refused to be considered. In other words, he was informed that his Application will not be considered.
The facts giving rise to the Appeal lie in narrow compass. There is stone quarry situated in the land Survey No.77/1A and Survey No.78/2 of village Degave, taluka Sawantwadi, district Sindhudurg. Appellant Jagnnath was running stone quarry on year to year lease/permit basis. There is no dispute about fact that the period of lease/permit expired in September 2012. So, he submitted an Application to the Collector for renewal of the transit pass. He also submitted Application dated 2nd August, 2013 for EC to the Collector. It was forwarded to the Respondent No.1 on 10 th December, 2013 for EC. The appellant alleges that he did not come to know about fate of his Application. Eventually, he submitted the representation to SEIAA on 23 rd March, 2014. In pursuance of such representation, he received impugned communication by way of reply, which practically amounted to rejection of his request, inasmuch as it was informed that his Application could not be considered for EC, because it was received by the Environment Department after cutoff date i.e. on 17th April, 2014 and moreover, the area in question falls under Ecological Sensitive Area (ESA) in Western Ghats, which is identified by the Higher Level Working Group. Thus, his Application came to be rejected only on two (2) grounds, namely;
i) The area was within domain of Eco sensitive area of Western Ghats, identified by the High Level Working Group, as per the directions under Section 5 of the Environment (Protection) Act, 1986, issued by the MoEF, vide No.1-4-2012 RE(PT) dated 13.11.2013, and draft Notification on Western Ghats issued by MoEF dated 10.3.2014;
ii) The Application was received after cutoff date i.e. 13th April, 2014.
Having heard learned Advocates for the parties and having considered the issues involved in the matter, we are of the opinion that the material issues that require determination may be culled out as below:
i) Whether the impugned communication issued by the Deputy Secretary, is in accordance with the principles of natural justice and, therefore, can be considered to be legal and valid even otherwise, if it is permissible under the Enactments/Rules?
ii) Whether the impugned communication on dual grounds stated therein, is sustainable under framework of the Law, particularly, when Notification pertaining to Western Ghats, as identified by the High Level Working Group of the Committee, placed before the authority was only draft Notification at the relevant time and could not be deemed as final without approval of MoEF, in this behalf?
At the outset, we may mention here that Appellant - Jagnnath was carrying on the business of extraction of stones from quarry in question for a long period for year to year pass basis. He was using method of drilling and controlled blasting for the purpose of extraction of stones. It is undisputed that he used to pay royalty to the office of Collector. The Application submitted by him to the Collector for the first time for issuance of permission/licence was on 2nd August, 2013. Along with Application, he also paid amount of royalty, by way of depositing Challan of the payment in respect of royalty as usual. It is worthwhile to note that the amount of royalty was not refunded to him immediately either by the Collector, SEAC or environment department, on the ground that his request was totally untenable for the reason that the Application was barred by limitation, or could not be considered on the ground that quarry in question had been declared to be within eco sensitive area. In other words, implicitly, the authorities did not convey refusal to the Appellant on either grounds that the Application could not be considered and, therefore, he should be required to take some other course, as available under the Law. The rejection of his Application -straightway, after hearing him, is different thing, than acceptance of royalty/permit fees and subsequently, sitting over his Application without any communication of either rejection or grant of his Application. There is no dispute about the fact that the Appellant was not heard by the Authority concerned prior to issuance of impugned communication. He was not given opportunity to show as to whether the Application was, in fact, filed within period of limitation available, under the Law or that he could have been able to get extension of time on count of payment of royalty/fees for the Application filed by him in the office of Collector or being already existing operating stone quarry. In other words, he could have shown by his conduct that there was leverage available to him to seek extension of time, although such extension of time could not have been granted under provisions of O.M. dated 20.12.2013, relied upon by the authority, vide impugned communication. Needless to say, it depends upon interpretation of the O.M. dated 20th December, 2013, issued by MoEF and the competent authority could have given due opportunity to the Appellant to explain his stance in this behalf. The Appellant was deprived of fair opportunity to be heard and to explain his case in the context of grounds stated in the impugned communication. Similarly, so far as the ground in respect of ecological sensitive area in Western Ghat, is concerned, it was necessary to give him hearing.
Learned Advocate for the Appellant has placed on record copy of the minutes of 30th reconstitution of EAC Appraisal Committee (Entry-II), held during 20/21 January, 2015, as it appears during item 32.4.4, recommendation of the Committee in respect of explanation of eco-sensitive area and categorization of the areas, are still under consideration before the Committee. Needless to say there appears no final word and draft Notification relied upon in the impugned communication, is not stamped as final and approved by the MoEF, in totality. Under these circumstances, giving opportunity of hearing to the Appellant, was essential. We are of the opinion that the Appellant was denied opportunity of hearing and, therefore, impugned communication is faulty, erroneous and unsustainable due to violation of principles of natural justice. The Principle 'audi alteram paratem', is breached in the present case and, as such, impugned communication will have to be set aside on this ground.
Now, coming to merits of the matter, let it be noted that the question as to whether the Appellant was required to apply to the Deputy Secretary, Environment Department or to Environment Department itself, or to SEAC/SEIAA for activity, is a debatable question. This question has to be examined in view of the O.M. dated 20 th December, 2013, issued by the MoEF. We cannot overlook the fact that said O.M. is issued by the MoEF, by way of guidelines in order to explain provisions of the Environment (Protection) Act/Rules, so as to clarify legal provisions to be followed by the authorities, in order to have uniformity of procedure and to ensure that there shall be no confusion in following the rules or Judgments of the Apex Court. In the present case, basic reason for issuance of the O.M., is the direction issued by the Apex Court in case of 'Deepak Kumar etc Vs. State of Haryana and Ors' and directions under Section 5 of the Environment (Protection) Act, 1986, dated 13th November, 2013. The purpose of O.M. clearly shows that activity of mining is distinct from activity of quarrying and stand mining. The case of 'Deepak Kumar etc. Vs. State of Haryana and Ors' [I.A.Nos.12-13 of 2011], mainly deals with minor minerals (sand). The auctioning of sand was the main subject before the Apex Court in that case. The Apex Court held that: "sand mining may have an adverse effect on biodiversity as loss of habitat caused by sand mining will effect various species, flora and fauna and it may also destabilize the soil structure of river banks and often leaves isolated islands." The Apex Court gave direction to the State Governments and Union Territories to prepare framework of model rules in order to ensure that important activity of sand mining is put in place, without disturbing ill-effects of environmental damage/ degradation. We may take note of the fact that said Judgment did not deal with subject of minor mineral like extraction of stones, notwithstanding the fact that it deals with all the minor minerals, viz. sand. The Apex Court directed that minor minerals below 5ha area would be outside the domain of the State Governments/U.Ts for grant of leases and such leases can be granted only after getting Environment Clearances (ECs), from MoEF. It goes without saying that the Applicant has to go through the proper process of making the Application to the concerned Authority i.e. SEIAA, which may direct the Applicant to submit rapid Environment Impact Report (EIA) and thereafter forward the same with recommendation or otherwise, for grant/refusal of request for EC to MoEF. The decision making authority, of course, will be the MoEF, in such a case, if area of lease will be below 5ha for minor minerals. However, the Deputy Secretary, cannot be authority to deal with the subject and environment department cannot practically without considering the subject in any kind of meeting and deliberations or without asking the Project Proponent to go through proper procedure, refuse to consider the Application. In our opinion, impugned communication, is arbitrary, unreasonable and unsustainable in the eye of Law.
The Misc. Application is also disposed of and the amount laying in the Escrow Account will be dealt with after decision, which will be taken after final decision of the Authority on the Application of the Applicant.
In the result, for foresaid reasons, we deem it proper to allow the Appeal, and set aside the impugned communication. Accordingly, the Appeal is allowed and impugned communication is set aside. No costs.