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Judgment
Originally P.I.L. No.6 of 2012 was filed in the High Court of Judicature of Bombay and Goa by Applicant-Shankar Raghunath Jog seeking following reliefs :
(a) Writ of Mandamus quashing the environmental clearances given to Molhem Concramoli Iron Ore Mine (TC No.16/49) and to Melca Dongor Iron Ore Mine (TC No.4/52) on the 29th September 2008 and 29th October 2009 respectively.
(b) Writ of Mandamus requiring the Respondent No.2 to restrain any mining activities in the concerned mines after the quashing of the environmental clearances.
By order dated October 17th 2013, Hon'ble Division Bench of the High Court of Bombay and Goa transferred Public Interest Litigation (PIL) No.6 of 2012 to this Tribunal. The Hon'ble Bench kept open all the contentions and rights of the parties including delay and limitation, for determination by the N.G.T. It appears that the Hon'ble High Court had directed the Applicant to deposit costs of Rs.25,000/- which he then so deposited. The issue regarding refund or otherwise of the said cost also was left to the discretion of the National Green Tribunal.
Before we proceed to set out the rival pleadings, it may be stated that, admittedly, Molhem Concramoli Iron Ore Mine (TC No.16/49) and Melca Dongor Iron Ore Mine (TC No.4/52) were granted Environment Clearances on September 29th, 2008 and October 29th, 2008 respectively. Both the Environment Clearances were challenged before the Hon'ble High Court after considerable delay of about three (3) years or more and as such, the question of Limitation was raised by the Project Proponents. It is pertinent to note that before transfer of the P.I.L. No.6/2012 an argument was advanced by learned Assistant Solicitor General before the Hon'ble High Court of Bombay at Goa to the effect that the Applicant is guilty of gross latches. It was also argued that on September 4th, 2012, during course of hearing before the Hon'ble High Court that the Applicant has an effective, efficacious alternate remedy to approach under the National Green Tribunal, 2010 and as such, the Writ Petition was not maintainable.
It is in the wake of this argument, the pleadings of the parties and the issues involved may be stated as follows :
Case of the Applicant is that grant of environmental clearance (EC) for mining activity was necessary in accordance with involvement impact assessment Notification dated 27-01-1994. Subsequently, the EIA Notification dated September 14th, 2006 came into force. The 1994 Notification issued by the Ministry of Environment and Forest (MoEF) specifically provided for grant of Environment Clearance to the extent of five (5) years. This provision was deleted after coming into force of the EIA Notification of 2006. All the projects of mining in the category of Schedule-I with leases above five (5) hectare of major minerals, require Environmental Clearance (EC) under paragraph (c) irrespective of whether they also require site clearance under paragraph (II). The validity of Environment Clearance under EIA Notification 2006, for mining project is independent of the length of the mining lease as governed by the Mining Concession Rules 1960. The EC for the mining project would be valid for five (5) years for the commencement of the mining operation. The EAC is required to estimate the project life of each mining project. Secondly, validity of the EC cannot be longer than the project life specified on it. The validity of EC was only for five (5) years under the EIA Notification, 1994 and thereafter a project proponent will have to renew the same if he has to continue the project. Afresh assessment of the project is needed for the purpose of determination of the "project life" at the time of such appraisal. The life of a mine is an estimation; economic life of the mine made by the mining company, depending on the rate of the annual production and the estimated results and is stated in chapter II of the EIA Report. The work/duty of the EAC is to calculate the mining life on basis of social data, information available, environment assessment and mineral potential in the Mine. Without proper determination of mining life, project life cannot be determined and therefore, extension cannot be granted to the project for a particular period beyond the mining life. The Respondent No.1 failed to give adequate information in respect of mining life of Molhem Concramoli Iron Ore Mine to the EAC. The EAC did not conduct proper Enquiry regarding the Mining Life and granted the Environment Clearance to the project.
By filing reply Affidavit, Respondent No.1 resisted the Application in the Hon'ble High Court. No separate Affidavit is filed in this Tribunal. According to the Respondent No.1, the Application is malafide and liable to be dismissed on account of delay and Limitation. It is stated that project life in case of any mining project is co-terminus in term of the mining lease. So, it is improper to suggest that the EC requires specification of the project life. It is denied that due to absence of evaluation of the mining life, there is likelihood of environment degradation. It is further denied that the project life is specified in the EIA Notification of 2006 being period of validity of the EC. It is submitted that when the Applicant has not challenged the EIA Notification 2006, mere challenge to the EC in question cannot be sustained on the premise of the interpretation putforth by the Applicant. It is denied that the Applicant has filed the Application in order to espouse public cause. It is further denied that there is failure in determining the project life. The Respondent No.1 therefore, sought dismissal of the Application/Petition.
By filing reply Affidavit, the Respondent No.2 also sought dismissal of the Application. According to the Respondent No.2, the project life of the mines is duly considered while granting the Environmental Clearance. It is stated that the maximum period of 30 years of lease for mining activity is in conformity with the period for which the mining lease is granted by the respective Government on renewal under the EIA Notification, 2006 as amended on April 4th, 2011. It is contended that the validity of the EC is determined on basis of the parameters of the mining lease by the respective State Government. It is however, admitted that at the time of renewal of mining lease, afresh EC is required and the EC will terminate on expiry of the mining lease period. It is also admitted that the EC granted for two (2) mining projects in question, do not specify any project life for mining and location of the project is well defined being in the proximity of the Wild Life sanctuary. The Respondent No.2 denied all the material averments made in the Application. The Respondent No.2 also sought dismissal of the Application on account of latches and delay.
Before we proceed to consider the rival submissions, it is useful to point out that the Applicant has restricted the argument and grounds on which the relief is sought to the following extent :
(a) The MoEF failed to consider project life of the mines which is a requirement under EIA Notification, 2006.
(b) The MoEF failed to properly conduct the environment impact, nor the consultation with locally affected people was undertaken.
No other issue was raised as is conspicuous from the note submitted by the Counsel for the Applicant on 11-10-2013. It is imperative, therefore, that the Application will have to be examined from these two stand points.
True, the Respondent sought dismissal of the Application on account of latches and delay. We, however, find it difficult to dismiss the Application on ground of latches and delay in as much as the Hon'ble High Court, Bench at Goa did not dismiss the Writ Petition on such a ground. The transfer of the petition, no doubt, was made keeping all the questions, including the question of limitation open. So, when the delay and latches are not considered by the Hon'ble High Court as ground for dismissal of the Writ Petition, it may not be appropriate to dismiss the Application for such a reason. Secondly, except the Respondent No.2 no other contesting Respondents came forward at the time of final argument.
The issue of limitation was not pressed into service. For this reason also, we do not think it proper to dismiss the Application on ground of delay.
The material issue involved in this Application are as follow :
1) Whether in the facts and circumstances of the present case, the "project life" of a mine must be determined and considered under the EIA Notification, 2006 before extension of lease period or granting expansion of the lease for mining ?
2) Whether in the facts and circumstances of the present case, the MoEF failed to conduct Environment Impact Assessment and public consultation process while granting the EC in question to the extension of lease period under the EC issued in favour of Respondent No.1 and 2 which is/are under challenge ? If yes, whether the impugned ECs are liable to be struck down ?
Shri Mukherjee, learned counsel for the Applicant strenuously argued that the concept of "project life" is totally different from concept of "lease life" and while granting extension of lease or while granting new lease, the project life has to be assessed. He would submit that the Environment Impact Assessment ought to be undertaken in order to determine "project life of the lease". He contended that indiscriminate lease period cannot be fixed while granting leases by the MoEF in respect of mines. He would further submit that the Expert Appraisal Committee must look into nature of the mine, life of the mine, environment damage which is likely to be caused due to extraction of the mined material and on basis of such assessment, the "project life" shall be determined. He contended that fresh mining leases after 2007 must be granted EC only on basis of the assessment of "project life". According to Shri Mukherjee, learned counsel for the Applicant, the "project life" cannot be co-terminus with "lease life" nor during lease life, the entire mineral can be allowed to be removed though the life of the mines may be more than the lease period. In other words, he would submit that the lessee cannot be permitted to extract excessive mineral during the lease period which would amount to exploitation and degradation of the environment. He invited our attention to case of "M/s. S.N. Mohanty & Another Vrs. Union of India & others" decided by Hon'ble High Court of Delhi in W.P.(C) 2025/2015. He would submit that the ratio of the said case is on different footings. According to him, requirement of EC is necessary for renewal of the lease if the period of lease comes to an end but not during the period of subsisting of the EC. We may quote certain relevant observations of the Delhi High Court in this context, as stated below :
"Before we examine the contentions of the EC granted to M/s. S.N. Mohanty, it may be relevant to point out at this stage that M/s. S.N. Mohanty had been working the mines under a mining lease granted to it on 02.04.1982 for a period of 30 years. At that point of time, there was no requirement of obtaining an EC. It is subsequent to the enactment of the said Environment Act and the decision of the Supreme Court in M.C. Mehta Vrs. Union of India and others : MANU/SC/0247/2004 : 2004(12) SCC 118 that the petitioner No.1 (M/s. S.N. Mohanty) thought it advisable to apply for an EC even prior to the due date of renewal of the mining lease. It is in this backdrop that, before the initial 30 years period of the mining lease expired, that is, much prior to 02.04.2012. In the year 2006-07 itself, the said M/s. S.N. Mohanty applied for an EC and the same was granted on 15-01-2007. As we have seen above, the said EC is for the project life, subject to a maximum of 30 years. The petitioner No.1's mining lease was as mentioned above, initially for a period of 30 years and it was renewable for another two periods of 20 years each. The first renewal fell due, as mentioned above on 02.04.2012, the said M/s. S.N. Mohanty had obtained the EC on 15-01-2007."
"We have already seen that the Notification of 2006 did not speak of renewals. But, it must be noted that the said Notification of 2006 was clearly in respect of (1) new projects or activities listed in the Schedule to the said Notification; (2) expansion and modernization of the existing projects or activities, etc.; and (3) any change in the product mixed in an existing manufacturing unit, included in the Schedule to the Notification beyond the specified range. In other words, the scope of the Notification of 2006 was essentially to cover all the new projects, expansions modernizations, change in technology, change in capacity, change in product mix, etc. This meant that it was targeted in respect of any change. In other words, the requirement of an EC was necessary whenever there was any change. Be it by setting up new projects or expanding an existing one or changing the technology of the existing project or changing the product mix of an existing manufacturing unit. If we read the Notification of 2006 strictly, it did not apply to a situation where there was no change. We realize that the notification of 2006 was introduced after the decision of the Supreme Court in M.C. Mehta (supra). Therefore, it would be necessary for us to examine the scope and width of the observations and directions given in M.C. Mehta (supra)".
"Thus, it is apparent from the above extract that the decision of the Supreme Court was that since the renewal of a lease was like a fresh grant, it must be consistent with law. It did not matter if the initial grant was prior to the Notification of 1994. Even if the Notification of 1994 was to be prospective, it would certainly apply to renewals subsequent to 1994. Thus, a prior EC would be necessary whenever a renewal was sought of the initial grant. All that the Supreme Court meant was that after 1994, there could be no fresh grant or renewal of an existing lease unless and until there was a prior EC. In our view, it does not mean that if a person has a valid and subsisting EC at the point of time he seeks a renewal of the mining lease, he would still be required to obtain another EC prior to the grant of renewal by the respondents. That, in our view, is not the intent and purport of the Supreme Court directions in M.C. Mehta (supra). The clear direction of the Supreme Court was that there ought not to be any mining activity without an EC. If the lease holder already has a valid and subsisting EC, there cannot be a requirement that during the validity and subsistence of the said EC, he would be asked to get another EC at the point he seeks renewal."
At this juncture, we may refer to Dictum of the Hon'ble Supreme Court in case of "Tarkeshwar Sio Thakur Jiu Vrs. Bar Dass Dey 8 and Co. and Ors., 1979 S.C.C.(3) 106". In the given case, it has been held that Section 3(d) of the Mines and Minerals (Regulation and Development) Act, 1957 is of wide amplitude and that term "Mining Operation" is spacious enough to comprehend every activity by which the mineral extracted or obtained irrespective of whether such activity is carried out on surface or in the bowels of the earth". So also in case of "Bharat Coking Coal Ltd. Vrs. State of Bihar, 1990 S.C.C. (4) 557", it is held that definition of "Mines" includes even mere usage of equipment, goods, trucks etc. for cutting soil.
Thus, it is explicit that even "winning activity" whether for the purpose of business or not would amount to "Mining Operation". We have elaborated this aspect with a reason to pinpoint that in case of such "Mining Activity", of superficial nature or the "Mining Activity" for which there may not be any particular lease period fixed nor "life of the lease" is determinable. Yet it would be regarded as "Mining Activity". Secondly, a lessee may be interested in short term lease though the stock of the Mineral material is quite huge. In such a case, the life of the mine may not be determined by the Appraisal Committee when it is unnecessary to do so. For example; if determination of life of a mine is herculean task which would involve huge expenditure and may consume a large chunk of the money derived from the Royalty of Mineral material or the lease amount, the Appraisal Committee may not think it practicable to determine the "project life", just because of lease of a mine is sought for a particular period.
Shri Mukherjee, learned counsel for Applicant invited our attention to Rule 24(a) of the Mineral Concession Rule as well as para (a) of the EIA Notification, 2006. He would submit that role of the Appraisal Committee is to look into nature of the mine in order to consider life of the mine with a view to see that lease period does not go beyond life of the mine nor it allows the lessee to extract everything available from the mine and leave only earth/soil at the place. We have given our anxious consideration to this argument of learned counsel Shri Mukherjee. We may refer to process of screening the Application for Environmental Clearance (EC) under the Environment Clearance Regulation 2006. Under the Regulation 7, for a new project the four (4) stages provided in sequential order are :
- Stage (1) : Screening (only for category 'B' project and activity).
- Stage (2) : Scoping.
- Stage (3) : Public Consultation.
- State (4) : Appraisal.
Perusal of EIA Notification, 2006, particularly Schedule as Appended thereto would make it amply clear that mining, extraction of natural production capacity over and above 50 hectare lease or in respect of non-coal mining leases is category (A) project. Whereas, below 50 hectares, mining lease area in respect of non coal mining, it is 'B' category project. There are categories of "mining projects" as provided in schedule Appended to the EIA Notification. The Regulatory Authority has the discretion to consider the recommendations of EAC or SCAC concerned while granting or rejecting the EC under Regulation 8 of the EC Regulations, 2006. It is further well settled that at the stage of "scoping", the Expert Appraisal Committee in the case of category 'A' project or activities, has to determine detailed and comprehensive Terms of Reference (ToR) for which prior EC is sought based on several factors including the quantum of mineral to be exploited per annum. The ToR has to be displayed on the website of the MoEF. The next stage of public consultation follows thereafter. Obviously, if there is some grievance regarding excessive extraction of Minerals from the Mine due to "project life" being more than the lease life of the mine, then, it is open for the members of the Public to raise such objections prior to grant of the EC. We mean to say that grant of EC for any lease is not a Straight Jacket Method. We are of the opinion that this Tribunal cannot introduce the concept of "project life" as a criteria for the purpose of assessment to be done by the experts of the EAC while appraising the EIA/EAC Report which is required to be tabled before the Regulatory Authority for its decision to grant or reject the EC as contemplated under Regulation 8 of the EIA Notification, 2006. In our opinion, such kind of exercise will amount to undue interference in the work of Expert Appraisal Committee which is constituted because of the expertise which the Members have in the relevant field. Moreover, assuming that there is some deficiency in the exercise of such expertise or lacuna in the exercise done by the Committee, the same can be filled up during the consultation process which needs to be duly considered by the Regulatory Authority prior to decision making under Regulation 8 of the EIA Notification, 2006.
Considering the foregoing discussion and the relevant aspects of the matter, we have no hesitation to conclude that it would not be proper to hold that the MoEF failed to consider "project life" of the mines which is requirement under the EIA Notification, 2006. Nor this Tribunal can introduce such type of criteria for future assessment in the process of EAC. We do not have any substantial reason to hold that MoEF failed to conduct Public Consultation with locality affected people in the present case while granting extension of the lease period in favour of the Respondent No.1 and Respondent No.2. We do not have any material to say that the extension of the lease period is granted without proper assessment of the environmental impact. It is difficult to mandate that the EAC must determine "project life" and must make it co-terminus with period of extension of the lease period as and when any extension of lease is sought. We cannot transgress into the domain of the Expert Appraisal Committee's work by introducing a new concept of assigning task to determine "project life" before submitting any report in respect of grant of lease or renewal of lease or rejection of the proposal for lease to the Regulatory Authority. In our opinion, it must be left to the discretion of the said committee.
Under the circumstances noted above, we do not find any reason to grant affirmatory relief in favour of the Applicant.
Application is accordingly dismissed.
The amount of costs deposited by the Applicant (Rs.25,000/-) with the Hon'ble High Court at Goa, may be refunded to him, in as much as we are of the opinion that the Application is not filed with any malafide intention.