S. Soban Babu vs Government Of India And Ors

The applicant submitted an application for mining lease in respect of 134.01 Acres (54.23 Hectares) in U.S.H.P of Avelthi Village, Sankavaram Mandal, East Godavari District for a period of 20 years on 08.04.2008. By G.O.Ms.16802/MIII dated 22.12.2008, Government proposed to grant the lease on submission of Approved Mining Plan. He submitted a mining plan approved by the Zonal Joint Director of Mines and Geology dated 17.07.2009. The State of Andhra Pradesh accepted the proposal of the Director of Mines and Geology and granted mining lease for Laterite over the said land for a period of 20 years in favour of the applicant subject to submission of Consent for Establishment (CFE) from the Andhra Pradesh Pollution Control Board (Board) after obtaining prior Environmental Clearance (EC) and completing environmental public hearing, as provided under EIA Notification, 2006 dated 14.09.2006, by G O Ms.No.196 dated 12.08.2009. By proceedings dated 29.09.2009 the Assistant Director of Mines and Geology, Rajahmundry granted sanction to the applicant to work mining lease for laterite in the lease area from 29.09.2009 to 28.09.2029 subject to the submission of Consent for Establishment (CFE) from the Board as well as EC from the Ministry of Environment, Forests and Climate Change (MoEF).

The applicant applied for EC, as it is a pre-condition for obtaining Consent for Establishment as per the terms of Mining lease. The Terms of Reference (TOR) determined by the Expert Appraisal Committee (EAC) was conveyed to the applicant on 06.11.2009. As provided under the EIA Notification 2006, after the approval of the ToR and its conveyance to the Project Proponent, the process of public consultation has to be undertaken. The State Pollution Control Board has to conduct public hearing at the site or its close proximity, in the manner prescribed for ascertaining the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity. In the instant case, complaints were received against the grant of lease. Pursuant to a representation received on 03.09.2012, the Joint Collector, East Godavari District convened a meeting along with the Assistant Director of Mines and Geology, Rajahmundry. As decided in the meeting, instructions were issued to the Revenue Divisional Officer (RDO) to submit a detailed report regarding the original NOC granted to the applicant by the Tahsildar, Sankavaram. It was found out that no records relating to the said NOC was available in the office of the Revenue Divisional Office, Peddapuram, East Godavari District. So, Tahsildar Sankavaram was directed to forward the file relating to the said NOC. The Tahsildar, in turn reported that the file is not available in the said office also.

In the background of these facts, the Assistant Director of Mines and Geology, Rajahmundry was requested to send a copy of the file relating to the issuance of NOC. It was received by the office of the Revenue Divisional Office on 23.08.2013. The District Collector convened a meeting of the District Forest Officer, (DFO) Kakinada, Assistant Director of Mines and Geology, Rajahmundry and the Revenue Divisional Officer, Peddapuram and decided to have a joint survey along with District Forest Officer, Kakinada and to submit a report.

Pursuant to the said decision, a joint survey was conducted along with District Forest officer with reference to the village records of Avalthi Village and the note submitted by the Assistant Director of Mines and Geology, Rajahmudhry. On the joint survey and verification, it was found that the total extent of land in Avalthi village as per revenue records Fasli 1338, is 173 Acres and 04 cents and as per re-settlement the extent is 242 Acres and 75 cents. As per RSR Avalthi village consists of 16 Survey fields with a total extent of 242.75 Acres. As per Forest Gazette Notification, 241, dated 02.06.1891, Avalthi village is situated within the Avalthi enclosure.

Forest Enclosure means the village is covered with forests on all sides. The proposed area of mining is part of 198.90 acres of USHP of Avalthi village. As reported by the Tahsildar, Sankavaram dated 08.08.2008, the area is rocky and un-even terrain covered with small bushes and not fit for cultivation and the proposed mining lease area is about 700 meters away from the village grama kantham in all directions and there are no dwelling houses, power lines, public interested places or encroachments in that area. It is on this basis, the Tahsildar recommended granting of NOC and based on which, the Assistant Director of Mines and Geology submitted a proposal to the Director of Mines and Geology, who in turn, submitted proposal to the Government and the Government by a memorandum dated 22.12.2008 requested the applicant to submit approved mining plan and thereafter, the applicant submitted the mining plan approved by the Zonal Joint Director of Mines and Geology, Visakhapatnam, pursuant to which, the mining lease in respect of 134.01 Acres in USHP of Avelthi village was granted to the applicant subject to the conditions.

It was found that NOC was issued by Tahsildar, Sankavaram without joint inspection with the forest department officials and the proposed mining area falls in Avelthi Enclosure adjoining Sarlanka Reserve Forest. The Revenue Divisional Officer submitted that NOC was issued by the Tahsildar, Sankavaram in respect of the land located in between the Avelthi village boundary and Sarlanka Reserve Forest, the approach road to the proposed land passes through Sarlanka Reserve Forest, the proposed land is an enclosure surrounded by thick Reserve Forest and the approach road to the proposed land passes through Sarlanka Reserve Forest and the Tahsildar is not empowered to issue NOC without conducting joint survey with the forest officials and without obtaining NOC from the Forest Department. The District Forest Officer had reported that the Tahsildar without conducting joint inspection along with other officials, granted NOC.

Based on these findings, the Revenue Divisional Officer by his communication in D/2036/2013 dated 03.09.2013 addressed the District Collector that the Tahsildar issued NOC to the applicant without following due process of law and without obtaining NOC from the Forest Department. The District Collector, thereafter, addressed the Principal Secretary, Industries and Commerce, State of Andhra Pradesh by letter in E4/4029/2013 dated16.09.2013 narrating the facts and requesting to cancel the permission given to the applicant. The Revenue Divisional Officer issued a show cause notice dated 03. 10.2013 to the applicant to show cause why the NOC issued by the Tahsildar shall not be cancelled. The applicant submitted the reply dated 19.10.2013. The Revenue Divisional Officer, thereafter, cancelled the NOC by order dated 23.10.2013 originally issued to the applicant, which is the foundation of the grant of lease in his favour. The applicant, then filed a Writ Petition No.32412 of 2013, challenging the cancellation of NOC by Revenue Divisional Officer, before the High Court of Andhra Pradesh. The Hon'ble High Court of Andhra Pradesh by its order dated 13.11.2013 suspended the order of cancellation of NOC dated 23.10.2013.

As the State Pollution Control Board who has to conduct the public hearing, did not proceed to conduct the same, the applicant had addressed the Board on different occasions to expedite the public hearing. The Board had then, issued a notification dated 18.08.2012 for convening the public hearing, to be held on 20.09.2012 at Avelthi Elementary School premises. But by notification dated 16.09.2012, the said public hearing scheduled on 20.09.2012, was postponed without specifying reason or the next date. The applicant, then addressed the Member Secretary of the Board by letter dated 20.09.2013 requesting to fix an early date for the public hearing informing that the postponement of date of public hearing without specifying any reason, on the influence of some political or local people who are against the applicant and obstruction made by such persons. Again, the applicant requested the Board to fix an early date for public hearing. As the public hearing was not conducted, the applicant approached the High Court of Andhra Pradesh by filing a Writ Petition No.20345 of 2013 to issue a writ of mandamus declaring the action of respondents in not holding the public hearing in pursuant to his application dated 05.09.2009, for issuance of Environmental clearance, is arbitrary, illegal and in violation of the Principles of natural justice.

The Division Bench of the High Court of Andhra Pradesh disposed of the said Writ Petition on 16.07.2013 directing the respondents concerned to take steps for hearing the petition made by the applicant for issuance of Environmental Clearance for conducting mining operations holding that the said exercise shall be completed within a period of three months from the date of communication of the said order.

The applicant, thereafter, sent a communication dated 02.09.2013 to the District Collector, Kakinada and also to six other officers of Kakinada, to conduct public hearing reminding that the Hon'ble High Court of Andhra Pradesh had already directed to conduct public hearing within a period of three months.

The Superintendent of Police, Kakinada by letter dated 25.10.2013 reported to the District Collector, East Godavari District, that the enquiry revealed that the people of Avelthi and surrounding villages are very much concerned and apprehensive about the ill-effects and the environmental degradation, which would be caused by the proposed mining and they apprehend that the streams flowing in that area will get disturbed and dry if mining is permitted and there would even be shortage of drinking water. There is a strong feeling among the people against the mining. It may result in tribal unrest for uprooting them and their families from the traditionally inhabited areas and the mining would also cause serious health hazards. It was also reported that the applicant has a bad reputation as he has indulged in illegal mining activity outside the permitted area in Vanthad a village and transported huge quantity of laterite violating all conditions of EC. The Superintendent of Police further reported that the public are very much agitated and if public hearing is conducted, strong resistance would be put up and there is every likelihood of large scale violence and therefore, it is not possible to conduct peaceful public hearing. By letter dated 28.10.2013, the Environmental Engineer of the Board informed the applicant that in view of the report of the Superintendent of Police, it is not possible to conduct the public hearing. By proceedings dated 29.10.2013, the District Collector, East Godavari, Kakinada, taking into consideration the suggestions given by the Superintendent of Police with regard to the prevailing law and order situation and the vehement opposition from all sections of people including the Tribals, informed the applicant that the public hearing cannot be conducted, in the larger interest of the Public. The Chief Environmental Engineer, Andhra Pradesh Pollution Control Board by letter dated 08.11.2013 informed the Director, Ministry of Environment,Forests and Climate Change that after receiving the directions from the Hon'ble High Court of Andhra Pradesh , the Environmental Engineer, Regional Office, Kakinada requested the District Collector to fix a date for conducting the public hearing and the District Collector informed that the Revenue Divisional Officer by his proceedings dated 23.10.2013 cancelled NOC issued to the applicant and the public hearing cannot be conducted in view of the report of the Superintendent of Police, Kakinada. But in the prevailing law and order situation and threat, the Ministry cannot be implicated in the contempt of court proceedings as provided under the Contempt of Courts Act.

Meanwhile, the Board filed an application before the Honble High Court óf Andhra Pradesh to review the judgment made in the Writ petition 20345 of 2013 and that it is admittedly pending. As against the interim order granted in the Writ Petition No.32412 of 2013 suspending the order of cancellation of NOC issued to the applicant, State of Andhra Pradesh had already approached the High Court to vacate the said order and the said petition as well as the Review petition filed by the Board are pending.

The applicant instead of approaching the Hon'ble High Court, filed this application under Section 14 of the National Green Tribunal Act seeking a direction to the 3rd respondent, Andhra Pradesh Pollution Control Board and the 4th respondent, the Environmental Engineer, Andhra Pradesh Pollution Control Board, to conduct public hearing in respect of mining lease granted to the applicant and for further direction to the first respondent to consider the application filed by the applicant for EC, without insisting on public hearing by exercising the powers provided in Para 7 (iv) of the EIA Notification, 2006 and to complete the appraisal process to grant EC within a reasonable time as fixed by the Tribunal

The case of the applicant is that though NOC was issued by the Tahsildar, Sankavaram, it was cancelled by Revenue Divisional Officer and the said cancellation is in violation of principles of natural justice and without authority, and therefore, illegal and unsustainable. When the EIA Notification provides for completing the public consultation and appraisal within a specific period, the MoEF is bound to complete the public hearing within the stipulated period. It is also pointed out that the EIA Notification provides that if the Board does not undertake and complete the public hearing within the specified period and does not convey the proceedings of the public hearing within the prescribed period to the regulatory authority concerned, the regulatory authority shall engage another public agency or authority which is not subordinate to the regulatory authority, to complete the process within a further period of 45 days. When the Andhra State Pollution Control Board failed to complete the public hearing within the stipulated period, the MoEF should have engaged another public agency or authority to complete the public hearing. In any case, when it is clear to the regulatory authority that in the prevailing local situation, it is not possible to conduct public hearing, invoking the powers provided under para 7 (iv) of the EIA Notification, it should have decided that the public consultation need not include public hearing in this case and thereafter should have completed the appraisal and there is no justification for protracting the matter. Applicant is seeking necessary direction to the respondents.

The 1st respondent, MoEF filed a reply affidavit contending that the Terms of Reference (TOR) to the Project Proponent were prescribed by MoEF and CC on 06.11.2009. The Project Proponent could not submit the Environment Impact Assessment /Environment Management report as public hearing was not conducted by the State Pollution Control Board. The Hon'ble High'Court in the Writ Petition filed by the applicant, directed the concerned authorities to complete the process of public hearing within three months. The Principal Secretary, Environment Department was requested to conduct the public hearing by letter dated 14.10.2014. The matter was re-examined in the Ministry along with other matters related to the delayed public hearing .

It was noted that the TOR has expired. The State Pollution Control Board by letter dated 08.11.2013, informed that due to serious allegation of malpractice by the lease holder, an enquiry was ordered to take action for cancellation of mining lease. The Ministry, therefore, decided that in the given situation, EC cannot be granted. The said decision was intimated to the applicant vide letter dated 18.12.2014. The applicant thereafter submitted a fresh Form I proposal for grant of TOR on 10.01.2015 intimating that no court case or litigation is pending against the project. The TOR for the project was issued vide letter dated 23.12.2015.

Admitting the provisions in Para 7 (iv) to (vii) of EIA Notification, 2006, it was contended that the applicant has suppressed the material facts and information in Column 16 and 26 of Form I by stating that no litigation was pending. It is contended that in view of the allegation of malpractice by the lease holder and the pending enquiry by the State, the Ministry cannot entertain the application for EC, though in the normal cases, the prescribed procedure would be followed.

Unless the State Government clears the allegations against the applicant, the Ministry cannot process the application for granting EC for the project.

The 3rd respondent, Andhra State Pollution Control Board filed a reply contending that the proposed public hearing on 20.09.2012 had to be postponed due to the law and order situation as well as the allegation of malpractice of the lease holder. It is contended that though the Pollution Control Board had taken steps to conduct the public hearing, the District Collector has not yet decided the issue. Though the Hon'ble High Court of Andhra Pradesh by order dated 16.07.2013 directed the respondents to take steps for hearing the application made by the applicant for EC within a period of 3 months, the Pollution Control Board has already filed review application No.15493 of 2014, to review the said order and it is pending before the High Court. The Environmental Engineer, Regional Office, Kakinada informed the Project Proponent that the public hearing cannot be conducted and the Board also informed that the Ministry of Environment, Forests and Climate Change the said facts.

The 5th respondent, the District Collector filed a reply contending that the applicant approached the Andhra Pradesh Pollution Control Board (Board) with a request to conduct public hearing, only after the lapse of 3 years from the date of grant of mining lease and though the date for public hearing was fixed, due to law and order problem, the date has to be postponed and the applicant filed Writ Petition No.20345 of 2013 before the High Court of Andhra Pradesh to direct the authorities to hold public hearing. Though the High Court directed to complete the public hearing, because of the report of the Superintendent of Police on the prevailing law and order situation, the public hearing could not be conducted and that fact was informed to the applicant. The Board had filed Review Petition No.15493 of 2014, against the directions and it is pending. The Assistant Director of Mines and Geology submitted a proposal to the Director of Mines and Geology dated 06.05.2015 that the lease holder has violated Rule 28 (1) of the MC Rules 1960, as the lease holder failed to continue the mining operations and kept it idle for more than 5 years. The Secretary to Government, Mining and Geology by memo dated 28.01.2016, issued a notice to the applicant to show cause why the NOC issued in violation of the Rules, cannot be cancelled and the Revenue Divisional Officer has cancelled the NOC after due opportunity granted to the applicant. Though the said order of cancellation is suspended by the Hon'ble High Court by an interim order, a detailed objection has been raised by the Revenue Divisional Officer, Peddapuram and the matter is pending. The State of Andhra Pradesh by G.O.Ms.No.121, Industries and Commerce (M.II) Department, dated 15.12.2015 had already cancelled the mining lease granted to the applicant in the southern part of Vanthada village and for unauthorised mining, penalty of Rs.10,71,28,937/- was levied. In another identical case for illegal mining, lease granted to the applicant in respect of lease of Venthada village was also cancelled. Therefore, conducting public hearing for a lease holder, who was found committing several irregularities, is felt inappropriate. It is contended that the matter relating to the cancellation of NOC and conduct of public hearing are pending before the Hon'ble High Court and the said matters are sub judice. It is therefore, contended that the petition is only to be dismissed.

The other respondents did not file any reply.

The learned counsel appearing for the applicant and respondents 1, 3 and 5 were heard.

The argument of the learned counsel appearing for the applicant is that the respondents have to determine and convey the TOR as per the procedure provided in the EIA Notification 2006 and once the TOR has been conveyed to the applicant based on the application submitted for prior EC, Andhra Pradesh Pollution Control Board (Board) is bound to complete the public hearing within the stipulated period. Even though the applicant was requesting to expedite the public hearing, the Board failed to do the same. Further argument is that EIA Notification specifically provides that on the failure of State Pollution Control Board to complete the public hearing within the stipulated period and to submit the report within the prescribed period, the regulatory authority shall engage another public agency or authority to complete the public hearing within the specified period. The learned counsel argued that even if based on the prevailing law and order situation, public hearing cannot be conducted, the EIA Notification provides for dispensing the public hearing and the MoEF should have proceeded with the appraisal of the project and therefore necessary directions are to be issued. The Learned counsel further argued that on the failure of the respondents to complete the public hearing, the applicant was compelled to approach the Hon'ble High Court and even after the specific directions issued by the Hon'ble High Court, the public hearing process was not completed and in such a contingency, the applicant is entitled to the relief prayed for.

Learned counsel also argued that even though the No Objection Certificate (NOC) dated 08.08.2008 originally granted, was cancelled by the Revenue Divisional Officer, the cancellation order is illegal and without authority and in any case, the Hon"ble High Court of Andhra Pradesh has already suspended the cancellation order and therefore, in the eye of law, no cancellation order subsists and therefore, the MoEF cannot wriggle out of the mandatory provisions of EIA Notification and if at all, the MoEF can only refuse to grant EC and cannot stop the process of public hearing. Learned counsel also pointed out that the grounds for not conducting the public hearing are not sustainable and if at all, are matters to be taken into consideration in the public hearing and therefore, argued that the application is necessarily to be allowed.

Learned counsel appearing for the State Government, argued that though the mining lease was granted in favour of the applicant, it is subject to the conditions including prior environmental clearance. Though the mining lease was granted based on the NOC issued by the Tahsildar, on enquiry, it was found that the NOC was issued in violation of rules and without consulting the Forest Department or getting No Objection Certificate from the Forest Department and therefore, the NOC is cancelled. It was also argued that though the said cancellation was challenged and an order of suspension was passed, the matter is not finally decided and as long as the cancellation order of NOC is not set aside, the applicant cannot insist for a public hearing, pointing out that in case the Writ Petition filed by the applicant is to be dismissed and the cancellation order is upheld, the very basis of the lease granted to the applicant goes and therefore, there is no purpose in conducting public hearing at this stage.

Learned counsel appearing for the 1st respondent, MoEF also argued that though originally, the TOR approved by the EAC was conveyed to the applicant by the MoEF, the TOR expired and a subsequent application was submitted by the applicant informing that no court case or litigation is pending against the project. The second TOR was obtained by suppression of material facts as the proceedings pending before the High Court were not disclosed. The argument of the learned counsel is that in Form I the column relating to the pending litigations, was not properly answered and in fact, the applicant has suppressed the pending litigations and therefore, the Ministry is competent to cancel the TOR. Further argument is that even if an EC is granted, based on such suppression of facts, the Ministry is competent to cancel the EC and therefore, the applicant cannot compel to proceed with the public hearing, when it is evident that material facts are suppressed in the Form I submitted by the applicant.

Learned counsel also argued that in any case, the applicant has already approached the Hon'ble High Court of Andhra Pradesh for the very same relief sought for in this application contending that respondents are not conducting the public hearing and prayed for a writ of mandamus to direct the respondent to complete the public hearing and when the applicant has already elected a forum and therefore, he is not entitled to approach the Tribunal for the same relief. The learned counsel also argued that though the writ petition was originally allowed and directions were issued, the Andhra Pradesh Pollution Control Board has already filed a review petition and it is pending before the High Court and therefore, the matter is subjudice and the applicant is not entitled to the reliefs sought for.

The only point for consideration is whether on the facts and circumstances of the case, the applicant is entitled to get a direction issued to the respondents, either to conduct public hearing or to proceed with the application for the EC dispensing the public hearing.

In exercise of the powers conferred by Sub-Section 1 and Clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 read with Clause (d) of sub-Rule (3) of Rule 5 of the Environment (Protection) Rules 1986, the Central Government issued the Environment Clearance Regulations, 2006 (in short, the EIA Notification, 2006). Para 6 of the Notification provides the application for prior environmental clearance. Under the said Rules, an application seeking prior environmental clearance in all cases shall be made by the Project Proponent in the prescribed Form I and Supplementary Form I-A, if applicable, after the identification of prospective site(s) for the project and /or activities to which the application relates, before commencing any construction activity, or preparation of land, at the site by the applicant. Along with the application, the applicant shall furnish a copy of the pre-feasibility project report except that, in case of construction projects or activities (stated in item 8 of the Schedule), in addition to Form I and the Supplementary Form I-A, a copy of the conceptual plan shall be provided instead of the pre-feasibility report.

Paragraph 7 provides the stages in the Environmental Clearance (EC) Process for new projects. The EC process will comprise of a maximum of four stages, namely, Stage-1 - Screening only for Category "B" projects or activities, Stage 2- Scoping, Stage 3- Public Consultation and Stage-4- Appraisal.

The process of scoping under Stage 2 refers to the process by which the Expert Appraisal Committee (EAC) in the case of category "A" project or activities and the State Level Expert Appraisal Committee ( SEAC) in the case of category of "B-1" project or activities, determine detailed and comprehensive Terms of Reference ( TOR) addressing all relevant environmental concerns for the preparation of an Environmental Impact Assessment (EIA) Report in respect of the project or activity for which prior environmental clearance is sought. The EAC or SEAC, shall determine the Terms of Reference (TOR) on the basis of the information furnished in the prescribed application Form I/Form IA, including TOR proposed by the applicant. A site visit by a sub-group of EAC or SEAC concerned, is also provided, if it is considered necessary by the EAC or SEAC concerned, TOR suggested by the applicant, if furnished, and other information that may be available with EAC or SEAC concerned, may also be used for the preparation of EIA Report. Thereafter, the TOR is to be conveyed to the applicant by EAC or SEAC concerned, within 60 days of the receipt of Form I. Rejection of the application for prior environmental clearance at the stage of scoping, by the regulatory authority on the recommendation of the EAC or SEAC is also provided. In case of such rejection, the decision along with the reasons for the rejection shall be communicated to the applicant within 60 days of receipt of the application for EC.

Public Consultation provided under Stage 3, ordinarily consists of two components; (a) public hearing at the site or in its close proximity to be carried out in the manner prescribed in Appendix IV for ascertaining concerns of local affected persons. (b)Secondly, obtain responses in writing from other concerned persons having plausible stake in the environmental aspects of the project or activity. The public hearing shall be conducted by the State Pollution Control Board (SPCB) or the Union territory Pollution Control Committee (UTPCC) concerned in the specified manner and the proceedings shall be then forwarded to the Regulatory Authority.

Para 7 (III) (iii) of the EIA Notification 2006 reads as follows:

"The public hearing at, or in close proximity to, the site(s) in all cases shall be conducted by the State Pollution Control Board (SPCB) or the Union territory Pollution Control Committee concerned in the specified manner and forward the proceedings to the regulatory authority concerned within (forty five days) of a request to the effect from the applicant."

Sub-para (iv) of Para III of Para 7, provides that in case the State Pollution Control Board or the Union Territory Pollution Control Committee does not undertake and complete the public hearing within the specified period, and or does not convey the proceedings of the public hearing within the prescribed period directly to the regulatory authority, the regulatory authority shall engage another public agency or authority, which is not subordinate to the regulatory authority, to complete the process within a further period of 45 days.

Sub-para (v) of Para III of Para 7, provides that if the public agency or authority nominated under sub-paragraph (iii) of paragraph 7, reports to the regulatory authority concerned that owing to the local situation, it is not possible to conduct the public hearing in the manner, which will enable the views of the concerned local persons to be freely expressed, it shall report the facts in detail to the concerned regulatory authority, which may, after due consideration of the report and other reliable information, decide that the public consultation in the case need not include the public hearing.

After completion of the public consultation, the applicant shall address all the material environmental concerns expressed during the process and thereafter, make appropriate changes in the draft EIA and EMP. The final EIA report so prepared, shall be submitted by the applicant to the concerned regulatory authority, for appraisal.

Appraisal provided under Stage 4, means a detailed scrutiny by the the EAC or SEAC of the application and other documents like the final EIA report, outcome of the public consultations including public hearing proceedings, submitted by the applicant to the regulatory authority for grant of environmental clearance. After the appraisal in a transparent manner, to which the applicant shall be invited for furnishing necessary clarifications in person or through an authorised representative, the EAC or SEAC shall make categorical recommendations to the regulatory authority, either to grant EC on the stipulated terms and conditions or rejection of the application, along with the reasons for the same.

Sub-para (iii) of sub-para IV of paragraph 7, provides that the appraisal of the application shall be completed by the the EAC or SEAC within 60 days of receipt of final EIA report and other documents or receipt of Form I and Form I-A, where public consultation is not necessary and the recommendations of the EAC or SEAC shall be placed before the competent authority for a final decision within the next 15 days.

Therefore, it is clear from the EIA Notification 2006 that a time limit is prescribed for completing the prior Environmental Clearance process. It also makes clear that public hearing, which is one of the components of stage III - Public consultation, shall be conducted by the State Pollution Control Board (SPCB) or the Union territory Pollution Control Committee (UTPCC). In case, the SPCB or UTPCC fails to complete the public hearing, within the specified period or fails to convey the proceedings of the public hearing within the prescribed period to the regulatory authority, the regulatory authority shall engage another public agency or authority. It also provides that in such cases, where owing to the local situation, it is not possible to conduct the public hearing in a manner, which will enable the views of the concerned local persons to be freely expressed to report the facts in detail to the concerned regulatory authority, who shall after due consideration of the report and other reliable information that it may have, decide that the public consultation in the case need not include the public hearing.

The applicant was granted a mining lease for excavation of laterite over an extent of 134.01 acres in USHP of Avalthi village of Sankavaram Mandal of East Godavari District by the State of Andhra Pradesh on 12.08.2009, but subject to certain conditions. The conditions include "submission of Consent for Establishment from the Andhra Pradesh Pollution Control Board after obtaining prior environmental clearance and also environmental public hearing from MoEF". The applicant thereafter, submitted the application for prior environmental clearance in Form I appending the necessary documents.

Being Category "A" project or activity, EAC has to determine the Terms of Reference on the basis of the information furnished in Form I, including TOR if any proposed by the applicant. The TOR determined by the EAC was conveyed to the applicant on 06.11.2009.

The applicant requested for public consultation. The State Pollution Control Board on 18.08.2012 notified the public hearing to be conducted on 20.09.2012. Thereafter, another notification was issued on 16.09.2012, informing that the public hearing scheduled on 20.09.2012 was postponed, without assigning any reason or fixing date for the next public hearing. On the failure by the State Pollution Control Board to conduct the public hearing inspite of repeated requests made by the applicant, the applicant approached the High Court of Andhra Pradesh by filing a Writ Petition No.20345 of 2013 with the similar prayers raised in the original application, for a direction to complete the public hearing and for consideration of the application of the applicant for environmental clearance within a fixed period. The Writ Petition was disposed of on 16.07.2013. A direction was given to take steps for public hearing by completing the process within a period of three months. But before the completion of the period, based on the representations/complaints received, a joint meeting was convened by the District collector and the Revenue Divisional Officer submitted a report dated 03.09.2013, reporting that the then Tahsildar had issued NOC without consulting the Forest Department and without following due process of law to the District Collector for further action. The District Collector, in turn addressed the State Government on 16.09.2013 recommending the cancellation of NOC issued by the Tahsildar. Thereafter, the Revenue Divisional Officer had issued a show cause notice to the applicant to submit his explanation as to why the NOC issued by the Tahsildar, Sankavaram shall not be cancelled. The applicant submitted a reply dated 19.10.2013.

The Revenue Divisional Officer thereafter, cancelled the NOC by order dated 23.10.2013, against which, the applicant filed W.P.32412 of 2013 to quash the order of cancellation of NOC. The Hon'ble High Court of Andhra Pradesh suspended the order of cancellation by order dated 13.11.2013. Meanwhile, the State Pollution Control Board filed a petition for review of the judgment dated 16.07.2013 by which the Hon'ble High Court directed to complete the public hearing and take decision on the application filed by the applicant for EC. The review petition is also admitted to be pending before the Hon'ble High Court.

Earlier, pursuant to the direction to complete the public hearing, the Superintendent of Police reported to the State Pollution Control Board that the public hearing cannot be held because of the law and order problem. He also pointed out that there were instances of illegal transport of laterite, violating the conditions of lease granted to the applicant. By that time, the NOC originally granted to the applicant was cancelled. The Ministry of Environment, Forests and Climate Change, on 08.11.2013, informed the applicant that the public hearing cannot be conducted due to the law and order problem in the area. The applicant armed with the order of suspension of the cancellation order from the Hon'ble High Court finding that the public hearing is not being conducted, sent a letter dated 11.11.2014 requesting to conduct public hearing by appointing an independent agency and threatened to file an application before the High Court for the disobedience of the directions of the High Court initiating contempt proceedings. The Ministry of Environment, Forest and Climate Change addressed the Assistant Solicitor General of India with a copy to the applicant on 18.12.2014 intimating that due to serious allegation of malpractices by the leaseholder, an enquiry has been ordered to take action for cancellation of mining lease and therefore, it was decided in the Ministry that environmental clearance cannot be granted to the project. The relevant portion of the said letter reads as follows:

"This has reference to the above mentioned proposal of M/S.Sri Sagina Soban Babu. The proposal was considered by the Reconstituted Expert Appraisal Committee in its Meeting held during 26-27 October 2009 for determination of ToR. The ToR to the project were prescribed on 06.11.2009. The project proponent could not submit the EIA/EMP report as public hearing was not conducted by the State Government. The Proponent filed Writ Petition (W.P.20345 of 2013) in the Hon'ble High Court, Andhra Pradesh.

The mater has been examined in the Ministry and it is noted that the ToR of the project has expired. The Andhra Pollution Control Board has also informed vide letter dated 08.11.2013 that due to serious allegation of malpractice by the lease holder, an enquiry has been ordered to take action for cancellation of mine lease. Therefore, it has been decided in the Ministry that in the given situation environmental clearance cannot be granted to the project."

Be that as it may, the period of TOR expired. The applicant submitted another Form-1 along with fresh EIA report to MoEF & CC on 09.01.2015. Strangely, inspite of the earlier decision conveyed to the applicant by sending a copy of the communication addressed to the Assistant Solicitor General of India, that E.C cannot be granted to this applicant, the MoEF proceeded with the fresh application and by letter dated 23.02.2015, conveyed the approval of the TOR to the applicant. The applicant on 15.10.2015 forwarded the draft EIA, Executive Summary, and approved TOR to the Pollution Control Board requesting for public hearing. It is thereafter, this application was filed before the Tribunal.

As is clear from the facts narrated above, though a mining lease was granted in favour of the applicant, it was subject to conditions including granting of prior EC. The applicant filed the application for prior EC before the MoEF in the year 2009. On the application, the stage of scoping was completed and TOR was approved and conveyed to the applicant. As provided under the regulation, the public consultation should have been completed within the prescribed period. It was not completed. The public hearing was not conducted by the Board, due to the law and order problem prevailed in the area. As is seen from the report of the Superintendent of police addressed to the District Collector, action has been initiated by the Government for cancellation of the very lease granted to the applicant. The records would establish that based on the allegations, an enquiry was conducted and the Revenue Divisional Officer submitted a report recommending cancellation of the NOC issued by Tahsildar, Sankaravam to the applicant, which is the very foundation of the mining lease granted in favour of the applicant by the State. Pursuant to that report, the NOC was cancelled by the Revenue Divisional Officer. That order has been challenged before the Hon'ble High Court of Andrha Pradesh and the High Court, by an interim order, suspended the order of cancellation. But, the Writ Petition is still pending. It is not disputed by the applicant that the respondents in the writ petition are contesting the case and the matter is yet to be finally decided. As rightly argued by the learned counsel appearing for the MoEF, if, at this stage the public hearing is to be conducted and ultimately, if the cancellation of NOC is to be upheld by the Hon'ble High Court, no purpose will be served by going through ordeal of completing the public consultation and appraisal. Added to this, as rightly pointed out by the learned counsel appearing for the MoEF, the application for prior EC now pending with the MoEF is not the one originally submitted in 2008, but the one submitted on 10.01.2015. The copy of the Form - I produced by the Ministry shows that in column 16 where the applicant has to state whether there is any litigation pending against the project, it was replied as "No". Column No.26 where the applicant has to state whether there is any litigation pending against the project or land, in which the project is proposed to be set up, is also answered "No". Inspite of the vehement argument of the learned counsel appearing for the applicant that the said answers are of no consequence as the pending litigations are within the knowledge of the Ministry, we cannot agree with the learned counsel that the omission to report the details of pending litigations and the answers that no litigation is pending, are not suppression of material facts. The Ministry is, therefore, competent to take appropriate decision in view of the powers provided under sub-para (vi) of Para 8 of the EIA Notification, 2006.

Therefore, we find justification for not completing public consultation as contended by the learned counsel appearing for MoEF & CC. True, the MoEF & CC could have cancelled the TOR or can complete the public consultation process and appraisal and then even reject the application, if it finds that the lease was obtained fraudulently. On these facts, we find it not proper to direct the MoEF & CC to complete the public consultation process.

Moreover, the applicant has already approached the Hon'ble High Court of Andhra Pradesh for exactly similar relief sought for in the original application. Though the Hon'ble High Court had directed completion of process of public consultation, on the application for prior EC, including public hearing, it is also not disputed that application filed for review of the direction, is pending before the Hon'ble High Court. It is thus clear that the matter is subjudice before the High Court. Moreover, the applicant had already elected the forum and approached the High Court for the same relief. Though a direction was issued, it is still subjudice before that Court. Even the validity of the cancellation of NOC is subjudice before the Hon'ble High Court. It is the original forum elected by the applicant for the reliefs sought for in this application. In such circumstances, we hold that the applicant is not entitled to any of the reliefs sought for in this application.

Therefore, the application is dismissed, but with no order as to cost.