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Judgment
The unsuccessful applicant for grant of mining Bauxite at Girgaon, Mhalaswade Village and Ringewadi Village respectively situated in Maharashtra as indicated in the application, has assailed the order of MoEF dated 3rd November, 2016 whereby the MoEF has rejected its application on the following ground:-
"It is reiterated that the MoEF & CC has issued direction under Section 5 of the EPA, 1986 on 13.11.2013 for providing immediate protection to the Western Ghats and to maintain its environmental integrity, thereby, putting a moratorium on consideration of environmental clearance for certain identified categories of new and/or expansion projects/activities such as mining and quarrying which have maximum interventionist and damaging impacts on the ecosystems, in the proposed Ecological Sensitive Area(ESA) as identified by the High Level Working Group"
The appellant has assailed the said order on several ground inter-alia contending that the appellant has been singled out by the MoEF to deprive its legitimate right to obtain Mining lease from 2007.
Details of the first applicant filed by the appellant on 20th April, 2007, and what transpired are mentioned in the Appeal shows it applied for grant of environment clearance as per EIA Notification, 2006. In pursuance thereto the Respondent No. 1, issued terms of reference (ToR) for Bauxite Mining located at Girgaon, Mhalaswade Village vide letter No. J-11015/366/2007 dated 20.08.07 and for the mine located at Ringewadi village vide its letter No. J-11015/367/2007 dated 20.08.07. The appellant was granted Mining lease by the Government of Maharashtra vide Letter no. MMN-3421/C.R. 7845/IND-9 dated 03.05.2010 for mining Bauxite over an area of 95.89 Ha for a period of thirty years. On the approval of ToR issued by the Respondent No. 1 the appellant prepared detailed EIA and submitted to the Maharashtra Pollution Control Board, Kolhapur for public hearing. On the submission of the EIA report by the Applicant, two public hearing were held on 26.08.2007 for both the above projects. Subsequent to the public hearing, the appellant submitted its final EIA report to the Respondent No. 1 for grant of Environmental Clearance.
The case of the Appellant it was listed before the Respondent No. 1 from 21-23rd November, 2012 in the meeting. The Expert Appraisal Committee (herein after reffered to EAC) directed the appellant to submit additional information regarding the project which they complied.
It is urged the appellant thereafter brought to the notice of Maharashtra State Government that out of the Appellant's proposed area for mining lease of 95.89 Ha, an area of 5.29 Ha of Survey No. 855 in village Ringewadi, being afforested should be deleted from the Appellant's Area of Mining. Thus, the Appellant requested the State Government to reduce the area of mining lease allotted to it to 90.60 Ha. The request of the Appellant was accepted by the State Government. Accordingly there is re-determination of lease to the extent of land from 95.89 Ha to 90.60 Ha.
Pursuant to the compliance report filed by the Appellant, EAC reconsidered the project of the appellant. The EAC exempted the Appellant's Project from Public hearing as it was already conducted.
It is further urged, despite exempting it from public hearing, the EAC directed the Appellant to go for public consultation once again, in view of the changes in the proposal by publishing an advisement in all the regional newspapers. The applicant complied even with that direction, but no objection was received in response to the public notice. However consultation continued and incorporating all the points that were highlighted in earlier public hearing/consultation on 22.08.2013 the appellant submitted its final EIA with respect to 90.60 Ha of the area on 21.02.2014.
The report of the appellant was again listed in the Mining project Agenda before the Respondent No 1 during its meeting on 28th to 30th May, 2014.
The appellant presented its case and answered, all the queries raised.
The contention of the appellant is that the Appellants project was considered and recommended for Environmental Clearance on the condition that there should be strict adherence to the norms and conditions laid down in the final Notification with respect to the ESA (Eco Sensitive Areas) of the Western Ghats, as and when the draft Notification would be finalized by the Respondent No. 1.
When things stood thus, the appellant was in shock to receive the Minutes of the Meeting of the EAC uploaded by the Respondent No. 1 on its website rejecting the request of EC of the Appellant on the ground that Bauxite mining in the site indicated in the application and allotted to the appellant was not permissible in view of the draft notification issued. Relying on the draft notification issued did not permit grant of mining leases in the area where the appellant proposed to carryout mining. Thus, the request of the applicant is denied.
The appellant being aggrived by the said order submitted its representation on 09.07.2014 giving details of all further steps taken by it. The appellant again requested for grant of EC to the Respondent No.1. It also pointed out that the Draft Notification issued vide S.O. 733(E) dated 10.03.2014 and, clause vii of OM dated 20th December, 2013 shows that there was no justification for considering the application of the appellant under that notification which was only a draft and had no force of law. The appellant also contends that even in para 3 of the draft notification, an exception has been carved out, which reads as under:-
"3. Projects and activities to be prohibited or regulated in the Eco-sensitive area- (1) The following categories of projects and activities shall be prohibited in the Eco-sensitive Area except those proposals which have been received by Expert Appraisal Committees or the Ministry of Environment and Forests or State Level Environment Impact Assessment Authorities before the 17th April, 2013, the date on which the HLWG report was uploaded on the website of the Ministry and are pending consideration and such proposals shall be dealt in accordance with the guidelines and rules in existence at that time."
Similarly, clause of 7 of the OM dated 20th December 2013, also referred
will read as follow:-
"The following category of New and/or expansion projects/activities shall be prohibited in the identified ESA except those cases which have been received by EAC/1st Respondent or SEACs/SEIAAs before the Ministry i.e. 17.04.2013 and which are pending will be dealt under the guideline and rules applicable at the time of application before the respective EACs/1st Respondent or SEACs/SEIAAs."
This Tribunal found favour with the ground urged by the appellant and with the following observation, allowed Appeal No. 73 of 2014 issuing further direction as extracted below:-
Consequently this Tribunal issued directions as follows:-
We reproduce the relevant minutes of the 20th Meeting of EAC held on 28th May, 2014 it clearly reveals that the EAC merely brushed aside the proposal without giving any thought to the merits of the proposal of in accordance with Guidelines and Rules in-existence at that time as was required by the draft notification vide S.O. No. 733(E) dated 10th March, 2014 which is reproduced herein below:
Projects and activities to be prohibited or regulated in the Eco-sensitive area.- (1) The following categories of projects and activities shall be prohibited in Eco-Sensitive Area except those proposals which have been received by Expert Appraisal Committees or the Ministry of Environment and Forests or State Level Expert Appraisal Committees or the State Level Environment Impact Assessment Authorities before the 17th April, 2013, the date on which the HLWG report was uploaded on the website of the Ministry and are pending consideration and such proposal shall be dealt in accordance with the guidelines and rules in existence at that time.
Learned Counsel appearing on behalf of the MoEF submits that the MoEF shall consider this proposal in accordance with Guidelines and Rules in-existence at the relevant time as is required by the draft notification referred to herein above. We, therefore, set aside the impugned order and refer back the proposal to the EAC for being considered as per the Guidelines and Rules in- existence at the time of making of the proposal in accordance with law. The EAC shall after duly considering the said proposal shall forward its recommendations to the MoEF as per EC Regulations, 2006. Which shall consider such recommendations in accordance with law and if the final notification comes into being in light such final notification. The proposal for grant of EC shall be disposed of by the MoEF within six weeks from today.
Appeal No. 73 of 2014 stands disposed of accordingly.
Thus, it is evident this Tribunal has opined that the EAC has brushed aside the proposal of the Applicant without giving any thought to the merit of the proposal in accordance with the guidelines and rules in existence at the time as were required even by the draft notification No. S. O. No. 733(e) dated 10.03.2014. It is further to be noticed that MoEF on its own volition gave an undertaking before this Tribunal that the proposal of the Applicant will be examined in accordance with guidelines and rules in existence at the relevant time when the application was moved. Therefore, The MoEF was required to dispassionately consider the proposal of the applicant in accordance with the guidelines and rules at the time when the application was filed and further process was undertaken by the both sides.
It is submitted at bar by the appellant which is not disputed by the MoEF that in pursuance to the order of this Tribunal dated 19th May, 2015, in Appeal No. 73 of 2017 MoEF reregistered, the case of the appellant and proceeded to hear them. The applicant has brought out clearly that despite its relentless effort to bring to the notice of MoEF that the proposal it has submitted has been tested within the framework of the existing rules and guidelines and even applying provision of the draft notification, it had made out a case for grant of Environmental Clearance.
We have perused the subsequent proceeding before the MoEF and order impugned and the communication addressed to the applicant declined to accept its proposal for grant of Environmental Clearance. The impunged direction is at page 15 marked at Annexure-1.
The applicant has assailed impugned Direction on the ground that it is unsustainable and requires to be set aside.
In the circumstances we have given the opportunity to all concerned and bestowed our serious concern that the ground urged by the applicant MoEF and other Respondents. It admits of no doubt that in terms of order passed by this Tribunal on 19th May, 2015, the MoEF has reconsidered the proposal of the applicant. It is also not in dispute that the appellant had approached for grant of Environmental Clearance as early as in the year 2007 and has undergone ordeal in answering to the queries raised by the respondents and complying with the certain deficiency pointed out by it. It is also submitted ToR for bauxite mining at the two villages referred to in the application that and the reply dated 20th August, 2007, the grant of mining lease to the applicant by the Government of Maharashtra on 03rd May, 2010 is not in dispute, the portion IA report by the Application and its submission to Maharashtra Pollution Control Board, Kolapur for public hearing and the fact public hearing was conducted is on record. It is also not in a dispute that the proposal of the applicant was turned referring to the provision in the draft notification dated 10.03.2014 issued by MoEF which had not crystallized into final notification to have the force of law. This fact was noticed by the Tribunal and consequently the earlier rejection of proposal of application was set aside in Appeal No. 73/2014.
Therefore, it was reasonably expected that MoEF, to whom this Tribunal remanded this case, should to have examined as to whether as on the date impugned communication was issued, there was no restriction as is canvassed before us.
The Impugned Communication which is assailed in this appeal assigns same reason as was referred to in its earlier order which was set aside therefore relevant portion of the communication needs to be extracted:-
"The matter has been examined in the Ministry. It is a fact that Western Ghats is a global biodiversity hotspot and need to be preserved. It is harbor for many endemic species of different flora and fauna. UNESCO has also included certain part of Western Ghats in the UNESCO World Heritage List. The Ministry in its proposed ESA notification dated 04.09.2015 clearly opined that there should be compete bar on mining, quarrying and sand mining in the Ecologically Sensitive Zone and all existing mines will be phased out within 5 years from the date of issue of final Notification.
It is reiterated that the MoEF & CC has issued direction under Section 5 of the EPA, 1986 on 13.11.2013 for providing immediate protection to the Western Ghats and to maintain its environmental integrity, thereby, putting a moratorium on consideration of environmental clearance for certain identified categories of new and/or expansion projects/activities such as mining and quarrying which have maximum interventionist and damaging impacts on the ecosystems, in the proposed Ecological Sensitive Area (ESA) as identified by the High Level Working Group."
The learned Counsel for the MoEF received support from the Respondent No. 2 who urged before us that even though the notification dated 10.03.2017 is a draft notification, yet the direction issued by the MoEF on 13.011.2013 evoking its power under Section 5 of the Environment (Protection) Act, 1986 prevails and confers upon MoEF power to decline proposal if the project comes within the moratorium referred to in the said direction dated 13.11.2013.
We have perused and examined the direction under Section 5 of Environment (Protection) Act 1986 dated 13.11.2013. It is a matter of interest to see that so called moratorium issued by the Respondent No. 1 MoEF also carves out an exception when it relates to proposals which are pending before MoEf and not finalized till the date of Moratorium. The relevant exemption carved out in the Moratorium reads as follows:-
Now, therefore, in exercise of powers conferred under Section 5 of Environment Protection Act, 1986, the following direction are hereby issued:
The following category of new and/or expansion projects/activities shall be prohibited in ESA from date of issue of these directions except those cases which have been received by EACs/MoEF or SEACs/SEIAAs before the date of putting HLWG report on the website of the Ministry, i.e, 17.7.2013 and which are pending with EACs/MoEF or SEACs/SEIAA. Such projects will be dealt under the guidelines and rules applicable at the time of application before the respective EACs/MoEF or SEACs/SEIAAs. Apart from such cases, no pending case or any fresh case shall be considered by the EACs/MoEF or SEACs/SEIAAs from the date of issue of these directions.
(a) Mining, quarrying and sand mining
(b) Thermal Power Plants
(c) Building and construction projects of 20,000 sq. m. area and above
(d) Township and area development projects with an area of 50 ha and above and/or with built up area of 1,50,000 sq.m. and above
(e) Red category of industries*
(* The CPCB list of read category industries would be the minimum list. Industries not included in the CPCB list but mentioned in the Red Category List of the SPCB of the concerned Western Ghat state shall also be categorized as Red category for that State.)
The extracted portion of the direction under Section 5 compels MoEF to examine pending proposals as indicated therein and it has no escape to justify rejection of the proposal merely referring to directions issued under Section 5 which itself provides for certain exception. No doubt MoEf could issue any direction as justified evoking power under Section 5 of Environment (Protection) Act, 1986 providing immediate protection to the Environment and in this regard the directions has been issued by it on 13.11.2013 to impose restriction for providing immediate protection to Western Ghats to maintain its natural integrity thereby putting a moratorium on consideration of environmental clearance for certain identified categories of new and/or expansion projects/activities such as mining and quarrying which have maximum interventionist and damaging impacts on the ecosystems, in the proposed Ecological Sensitive Area (ESA) as identified by the High Level Working Group. This action is a laudable and can be maintained under Section 5 of Environmental (Protection) Act, 1986 but in the said direction, the Central Government itself has directed that such of the proposal which are pending before issuance of such direction shall be considered in accordance with exception provided in the said direction itself by applying earlier notification of 2006. Therefore, it was reasonably expected that MoEF should have examined the mandate of Section 5 of the Environmental (Protection) Act, 1986 to examine the proposal of the Applicant.
We are therefore, dismayed that despite this Tribunal setting aside the earlier order passed by the MoEF on 06.08.2014 in appeal No. 73 of 2014 and remanding the case to MoEF to reconsider in the light of the exception provided in the Notification dated 13.11.2013, yet, the MoEF has again on the same ground passed fresh order declining proposal which is against the opinion expressed by this Tribunal on the enforceability of the draft notification and fact situation. Since the reason assigned earlier by the MoEF to reject the proposal of the Application dated 06.08.2014 has been tested before this Tribunal and set aside the same could not have been the basis to decline the relief. As consequent of such improper understanding of direction under Section 5 of Environment (Protection) Act, 1986 and non-application of mind to examine exception provided in the notification dated 13.11.2013, we are satisfied the impugned direction cannot be sustained.
23 In the circumstances we are satisfied the ground urged by the Applicants against the impugned direction is legally acceptable and therefore the appellant succeeds in its legal pursuit.
The impugned direction issued by MoEF dated 13.11.2016 is hereby quashed. MoEF is directed to reconsider the application of the appellant in the light of the exception provided in the moratorium dated 13.11.2013 and consider the proposal of the appellant applying the provisions of EIA Notification of 2006. The entire process shall be completed within a period of one month from the date of receiving of copy of this order. We further make it clear that other report submitted by the appellant which are in favour of MoEF must be considered while considering their proposal.
The request of the appellant to impose heavy cost on the MoEF for dragging the appellant into litigation is justified but being persuaded by the submissions of the Learned Counsel for the MoEF that there is no personal malice and MoEF has acted in best interest of the society imposing cost may not be proper but we express our dissatisfaction at the casual manner of the MoEF.
Appeal No. 58/2016 is allowed with no order as to cost.