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Judgment
By this common order, we intend to dispose of these Applications as they raise a common issue related to compliance of earlier orders of the Tribunal and also provisions of the Environmental Clearance Regulations, 2006.
The Applicants are engaged in the business of stone quarrying activities and have their respective stone mining activities in District Sindhudurg. It is the contention of the Applicants that they have applied for grant of Environment Clearance (EC) to the competent authorities well before the issuance of the directions, under Section 5 of the Environment (Protection) Act, 1986, issued by Ministry of Environment & Forests (MoEF) dated 13th November, 2013, restricting mining, quarrying and sand mining activities in certain areas of Sindhudurg District which are identified as ecological sensitive area (ESA) in the Western Ghat Region of Maharashtra.
The Applicants had approached the Tribunal earlier in appeal action challenging the decision of State Expert Appraisal Committee (SEAC), Maharashtra to keep their Applications in abeyance in view of the Draft Notification of the MoEF. After considering the Applications on merit, the Tribunal had disposed of those Appeals on 17th August, 2015 with a clear direction to the SEAC which are reproduced as under:
"i).....................................................
ii) The appeal is held as untenable and, therefore, it is disposed of. However, we direct the MoEF, to clarify the issue regarding moratorium about which SEAC sought clarification, which is referred to in the impugned decision, as quoted above, within period of two (2) months hereafter.
iii) The SEAC (Respondent No.1), shall take decision on the proposal within period of three (3) months, thereafter and the matter should not be kept in limbo any further."
The Applicants have now again approached this Tribunal under the provisions of Section 14 read with Section 18 of the National Green Tribunal Act, 2010 seeking direction to the Respondents to give permission to start their stone mining operations of the Applicants. Besides this, the Applicants have also made several other incidental and consequential prayers.
The main contention of the Applicants is that inspite of the Tribunal's direction to SEAC, Maharashtra to take decision on the proposal within three months, SEAC has failed to take a decision even today and infact, has further decided to keep the matters in abeyance. Applicants submit that such a decision has been taken by SEAC in its 122nd Meeting held on 24th, 25th& 26th Feb., 2016. The learned Counsel for the Applicants therefore submit that the SEAC has not complied with the orders of the Tribunal and therefore, in view of such non-compliance, the Tribunal should take a serious view and also direct the authorities to grant the permission for mining.
On admission of these applications, the parties have entered in contest and have filed replies.
Learned Counsel Shri D.M. Gupte appearing for Respondent Nos.1 and 2 submits that the Government of India has issued a Notification on 15th January, 2016 amending the EC Regulations, 2006 wherein District Level Environment Impact Assessment Authority (DEIAA) have been formed to apprise and grant the Environment Clearance for mining of minor minerals. He further submits that as per Circular of Environment Department, Government of Maharashtra dated 2nd February, 2016, the EC applications which have not been considered by SEAC till the date of circular are required to be apprised by respective district authorities. He further submits that as these applications have already been appraised by SEAC, they have not been remanded to the district authorities. He further submits that SEAC and State Environment Impact Assessment Authority (SEIAA) of Maharashtra are not in operation now due to afflux of time of their validity and in absence of SEAC/SEIAA, all such applications are now required to be considered by MoEF, as per the provisions of EC Regulations.
We have bestowed our considerations to the pleadings and submission made by the learned Counsel for the Applicant.
This Tribunal while disposing of the earlier Appeals No.32/2015 to 51/2015 on 17th August, 2015 has directed the SEAC to take decision on the proposal for grant of EC of the stone quarrying activities of the Applicants within a period of three months. The Tribunal has made it clear that the matter should not kept in limbo any further.
We are now dismayed with the stand of the SEAC as could be seen from the Minutes of 122nd Meeting of the SEAC held on 24th, 25th, 26th Feb., 2016 which is as under:
" The NGT WZ branch Pune in Application no.134/2015 pertaining to Appeal No.50/2015 and other similarly placed Appeals (21 in total) directed the SEAC to take a decision on the proposals for grant of EC within a period of 3 months from 17th August, 2015. This order was brought to the notice of Member Secretary, SEAC-I by the PPs concerned on 21.1.2016. The matter has been taken up on the agenda immediately thereafter and kept for appraisal before the Committee. These 21 cases had earlier been considered in the 81st meeting held on 19-21 June, 2014. The Committee had observed then that there was a moratorium in 6 Talukas of Sindhudurg District by virtue of which the 21 proposals were held in abeyance.
Subsequently on 11th December, 2014 the Hon'ble High Court through an interim order in PIL 179/2012 lifted the moratorium from the villages falling in the non-eco-sensitive areas.
However, the Committee observed that all the 21 Villages appear as ESA villages in the Draft Notification of MoEF dated 4.9.2015. Therefore the Committee decided to keep these cases in abeyance till the finalization of the Draft Notification. Kept in abeyance."(Emphasis Supplied by us)
Two distinct facts emerge from these Minutes of SEAC. Firstly, the directions of the Tribunal dated 17th August, 2015 was required to be brought to the notice of Member Secretary, SEAC-I by the project proponent concern for execution of the directions. The Applicants herein informed the Member Secretary, SEAC on 21stJanuary, 2016 regarding the compliance of the directions and thereafter, the SEAC considered the proposal in 122nd Meeting. The SEAC had not acted on the directions of the Tribunal till such time that the Applicants approached SEAC for early decision. Secondly, it is manifest from the minutes that the decision of the committee is based on the premise that all the 21 villages in question appear as ESA villages in the Draft Notification.
It is necessary to note that even by virtue of the submissions of the SEAC, the applications of the Applicants are prior to 4th September, 2015 i.e. the date of Draft Notification of MoEF. The Tribunal issued directions to the SEAC to take a decision on these Applications on 17th August, 2015 i.e. prior to the issuance of Draft Notification. It is a settled legal position that the Draft Notification cannot be implemented till it is given finality through an appropriate Notification. We, therefore, fail to understand the legal proposition or the basis of which the SEAC has taken such a stand to keep the Applications in abeyance till the finalization of the Draft Notification.
Moreover the SEAC is required to conduct its proceedings and work as per the provisions of EC Regulations, 2006. The Regulations do not contemplate to keep the applications in abeyance and the SEAC is, in any case, not an authority which can grant or refuse the EC. The role of SEAC is strictly recommendatory and it is required to take a decision either to recommend grant of EC or refusal of EC. The competent authority for grant or refuse of EC is SEIAA. On both these counts, the decision of SEAC to keep the applications in abeyance is contrary to the provisions of Law and cannot sustain in the eyes of law and therefore, the decision of SEAC keeping such applications in abeyance is 'non-est'.
The EC regulation 2006 is primarily based on the precautionary principle towards sustainable development. In view of such premises, the EC regulations stipulate a timeframe for various authorities involved in grant of EC to take a decision as per their role and competence in the entire EC process. And therefore, in our considered opinion, the stance of SEAC to keep such EC applications pending is in violations of the basic mandate of EC regulation. Such actions can frustrate the very objective of the EC regulations aimed at sustainable development.
And therefore, considering the long pendency of the applications and also, absence of SEAC/SEIAA in the State of Maharashtra, we direct MoEF to consider these applications on merit and take a decision in eight (08) weeks without fail. We make it clear that even if, the SEAC and SEIAA are constituted in the State of Maharashtra, in intervening period, these applications shall be decided by MoEF only. The Secretary, Environment Department is directed to ensure that all the relevant files and records are sent to concern EAC of MoEF immediately within one week.
Considering the willful non-compliance of the directions of the Tribunal by the SEAC, we were inclined to issue Show Cause to SEAC why suitable legal action be not initiated. However, at the stage of final hearing, the learned Counsel for Respondent No.1 submits that SEAC is not in existence due to afflux of time. Still however, the ex-officio Member Secretary of SEAC is a designated Government Official and therefore, we are inclined to issue Show Cause, within fifteen days, to the concerned Member Secretary, SEAC regarding the non-compliance of the directions of the Tribunal dated 17th August, 2015. Registry to issue Show Cause to the concerned Member Secretary, SEAC through Secretary, Environment Department, Government of Maharashtra and on receipt of reply, place it before the Tribunal by registering a new application under execution.
Application Nos.116/2016 to 135/2016 stand disposed of with no order as to cost.