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Judgment
M/s. Special Lime Stone Pvt. Ltd. is a mining company and has approached this Tribunal under Section 14 of National Green Tribunal Act, 2010 seeking following relief:-
(i) The impugned communication dated 26-05-2014 (annexure-17) may be quashed and set-aside.
(ii) The respondents may be directed to reconsider the applicant's application for seeking environment clearance on the basis of EIA/EMP and other primary data submitted to them vide letter dated 20-05-2011(Annexure 12).
In support of the relief so sought the applicant has asserted:
i. That the applicant obtained mining lease bearing no. 123/92 ad-measuring 93.04 hectares situated at Kaswan-Ki-Dhani, Tehsil Merta, District Nagpur and has been mining the mineral in terms of the lease and complied all requisite conditions imposed.
ii. He has been excavating 68209 TPA and with the intention to increase the production to 450000 TPA he took the necessary steps as per the law in force.
iii. In the light of EIA Notification dated 14-09-2006, it became mandatory to seek Environmental Clearance before enhancement of production. Thus, the applicant vide letter dated 02-05-2008 submitted an application for seeking Environmental Clearance with the intent of enhancing the production from 68209 TPA to 450000 TPA.
iv. A meeting of Expert Committee was held on 24-10-2008 communicated and respondent no.2 vide letter dated 25-11-2008 detailed Terms of Reference for conducting EIA in respect of applicant's proposal. Applicant initiated process of soliciting clearances from various government departments and all the departments or agencies didn't express any hesitation or reservation in relation to applicant's proposal.
v. Accordingly, public notice was published on 16-05-2009 and 17-05-2009 intimating that a public hearing would be held on 19-06-2009. That public hearing as part of EIA was conducted on 19-06-2009 and no objection was raised by any member from public. EIA report was prepared and submitted to the Dy. Conservator of Forest, Nagpur as well as Rajasthan SPCB for their approval. No deficiency was pointed out in the applicants EIA report through letter dated 15-07-2009 issued by Dy. Conservator Forests.
vi. Therefore, the applicant submitted relevant documents to the Respondent no.2 vide letter dated 20-05-2011 for grant of Environmental Clearance. Accordingly, the respondent no.2 vide letter dated 06-07-2011 informed the applicant that applicant's proposal would be taken up for consideration at the meeting of the Expert Committee on 21-07-2011.
Applicant's proposal was listed for consideration, but due to some difficulty his advocate could not appear on the said date. The applicant vide letter dated 01-12-2011 then made request for early listing of his proposal, but didn't received any communication in this respect and followed up the request vide letters dated 15-06-2012, 21-01-2013 and 01-12-2013. A significant time period lapsed and yet no intimation regarding listing of its proposal was received by the applicant. Accordingly, applicant requested respondent no.2 to list the proposal for consideration by the Expert Committee for grant of Environmental Clearance.
The applicant was informed that his proposal has been delisted and closed, thereby requiring applicant to initiate the process for seeking fresh TORs. The applicant submitted that the said communication dated 26-05-2014 has been issued on the strength of MoEF office Memmorandum (OM) dated 22-03-2010, whereby it is stated" the proposal, which had been granted TORs prior to the issue of this OM, the EIA/EMP report shall be submitted, after public consultation where so required, not later than four years from the date of grant of the ToRs, with primary data not older than three years".
The applicant approached all the authorities who are in the party array and apprised them that the reason for proposal getting time barred is solely attributable to the respondents.
The applicant's mine was closed vide letter dated 18-05-2016 issued by respondent no.3 in view of the order passed by the Hon'ble National Green Tribunal Act, 2010 in O. A. No. 123/2014(Himmat Singh Shekhawat Vs. State of Rajasthan and Ors.) on 04-05-2016.
The assertive contention of the applicant is that in the meeting held on 21-22 July the case of Associated Limestone was considered and recommendation was made by the EAC; the applicant contends that its case is similarly situated and seeks similar relief in the O. A. No. 123/2014(Himmat Singh Shekhawat Vs. State of Rajasthan and Ors.)
Apart from the factual matrix as stated above the applicant has raised specific ground that the impunged communication dated 26-05-2014 by which the applicant was informed that his proposal is delisted and closed, is per se illegal and contrary to the principles of natural justice. That the demography, flora, fauna of the mining site in question is not dynamic in nature, yet the respondents have chosen to keep the applicants proposal in limbo. It was incumbent upon the respondent authorities to consider the proposal furnished by the applicant without demanding submission of fresh primary data and other allied formalities. Thus, delay caused is due to conduct of the respondents and cannot be attributed to the applicant.
The applicant has further asserted that this Tribunal in the case of Associated Limestone ltd.,where similar ground was urged, had allowed the application and ordered MoEF to reconsider the views of requiring submission of fresh data by way of conducting entire process afresh. Hence, he seeks order on entirety with the relief granted by this Tribunal in the above said case. He also relies on the order passed in O. A. No. 195/2014 contending that this Tribunal has jurisdiction to entertain the application which he has filed.
When this application came for admission on 08-02-2017, on perusal of the records, we had requested the Learned Counsel for the applicant to submit as to why an appeal under Section 16 of the National Green Tribunal Act, 2010 has not been preferred, when the prayer in the application is quashing the order dated 26-05-2014(Annexure-17), whereby the application of the applicant for grant of Environmental Clearance for expansion of the mining activity was delisted.
The applicant's Counsel did not submit anything on the question of maintainability of the Appeal under Section 16 of the National Green Tribunal Act, 2010 but submitted that this application is preferred as this Tribunal in similar circumstances had allowed the application presented before the similar forum under Section 14 of the National Green Tribunal Act, 2010. However, we had again granted time till 23-02-2017 and again 27-02-2017 since the Learned Counsel did not convince us as to how the relief sought in the application to quash the order dated 14-05-2014 could be considered under Section 14 of National Green Tribunal Act, 2010 and as to how the question of limitation of the application is maintainable. No further steps have been taken by the applicant.
In the given circumstances, we had no choice but to reserve the judgment. We have perused the factual matrix, the grounds in support thereof and bestowed our serious concern to the issue raised.
As could be seen from the narration of the facts that the main grievance of the applicant is that the application for grant of Environmental Clearance for increasing the excavation of mining to extract 45000TPA of limestone has been virtually rejected by the authority and delisted. In other words the contention of the applicant by delisting the applicant's request for grant of Environmental Clearance has been turned out. He has been furnished Fresh TOR.
Thus, according to him, the direction issued by MoEF is not legally tenable. Therefore, we proceed on the premise that the applicant has challenged "direction" or issued the issued by MoEF that whether delisting or rejection may not arrive from the decision, as contended by the applicant.
The Section 16 of National Green Tribunal Act, 2010 provides:
Tribunal to have appellate jurisdiction. -Any person aggrieved by,-
(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment (Protection) Act, 1986 (29 of 1986);
(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);
(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986 (29 of 1986);
The submission of the applicant's counsel is delisting amounts to denial of Environmental Clearance to the applicant. Thus, this may amount to rejection of the application of the applicant. Hence, relief sought by the applicant comes within the mischief of Section 16 (1)(i) of the National Green Tribunal Act, 2010 as the applicant has described delisting of the application and denial of the Environmental Clearance applied by him. The applicant has not preferred an appeal under such provision but has invoked Section 14 of National Green Tribunal Act, 2010.
The application under Section 14, therefore, may not be maintainable and has not raised any substantial question relating to environment including enforcement of any legal right relating to environment arising out of implementation of the enactment referred to in schedule 1. Further the applicant had to satisfy Section 14 was applicable to the facts of the case, and also satisfy the question of limitation. Undisputed fact is that the delisting of the communication dated 26-05-2014 has been served on the applicant. But applicant has not disputed over the date of service. For us the period of limitation would start from this date. Besides even if we presume that he has been served a month later even then date would be 26-05-2014 and this application has been preferred before the Registry on 31-01-2017. Undoubtedly, it is beyond the period of six month prescribed as period of limitation by a special statute, namely, National Green Tribunal Act, 2010.
Before parting we may also note that very casually the applicant has referred letter dated 18-05-2016 (annexure-19) addressed to the applicant directing the closure of the mine in terms of the direction of this Tribunal in O. A. 123/2014:(Himmat SinghShekhawat Vs. State of Rajasthan and Ors.) by which the deadline set was 31-05-2016 to secure the Environmental Clearance and has not sought any relief thereafter. The applicant has accepted this and has not questioned in this proceeding. Therefore, no issue arises in this regard to test legality of this communication. Even if we calculate the date on which the communication became effective i.e 31-05-2016.
Even then the applicant has neither approached this Tribunal within a period of six months nor sought condonation of delay as prescribed under Section 16 of National Green Tribunal Act, 2010.
Further the applicant has not based his cause of action for this case on the basis of said communication and has sought no relief.
On the basis of aforesaid reasons, we find the application is not maintainable and is thus rejected, with no order as to cost.
The M. A. No. 131/2017 and M. A. No. 132/2017 do not survive for consideration as the main application itself stand disposed of.