TaxTMI 
TaxTMI 
2011 (7) TMI 1394
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....angladesh. There is no other source of limestone for LSCL except for the captive limestone mine situated at Nongtrai, East Khasi Hills District in the State of Meghalaya. The limestone as mined by LUMPL is conveyed from the mine situated at Nongtrai after crushing in a crusher plant. The limestone mined is conveyed by a conveyor belt to LSCL plant in Bangladesh. 2. The National Forest Policy, 1988 stood enunciated pursuant to Resolution No. 13/52-F, dated 12th May 1952 of GOI to be followed in the management of State Forests in India. The said Policy stood enunciated because over the years forests in India had suffered serious depletion due to relentless pressures arising from ever increasing demand for fuel wood, fodder and timber; inadequacy of protection measures; diversion of forest lands to non-forest uses without ensuring compensatory afforestation and essential environmental safeguards; and the tendency to look upon forests as revenue earning resource. Thus, there was a need to review the situation and to evolve, for the future, a strategy of forest conservation including preservation, maintenance, sustainable utilisation, restoration and enhancement of the natural environm....
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....he bonafide use of the communities living within and around forest areas, specially the tribals. The Policy recognizes the fact that the life of tribals and other poor people living within and near forests revolves around forests and therefore the Policy stipulates vide para 4.3.4.3 that the rights and concessions enjoyed by such persons should be fully protected and that their domestic requirements of fuel wood, fodder, minor forest produce and construction timber should be the first charge on the forest produce. Para 4.4 deals with diversion of forest lands for non-forest purposes. Under the said para it is stipulated that forest land or land with tree cover should not be treated merely as a resource readily available to be utilised for various projects, but as a national asset which requires to be properly safeguarded for providing sustained benefits to the community. Diversion of forest land for non-forest purpose therefore should be subject to most careful examination by experts from the stand point of social and environmental costs and benefits. Construction of dams and reservoirs, mining and industrial development should be consistent with the need for conservation of trees ....
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....hall be valid for five years for commencing construction, operation or mining. The EIA Report submitted with the application by the project proponent shall be evaluated and assessed by the Impact Assessment Agency, and if deemed necessary, it may consult a Committee of Experts having a composition as specified in Schedule-III. The Impact Assessment Agency (IAA) is MoEF. The Committee of Experts shall have full right of entry and inspection of the site. The IAA shall prepare a set of recommendations based on technical assessment of documents and data, furnished by the project authorities (project proponent), supplemented by data collected during visits to sites which would include interaction with the affected population and environmental groups, if necessary. The summary of the reports, the recommendations and the conditions, subject to which environmental clearance is given, shall be made available subject to public interest to the concerned parties or environmental groups on request. Comments of the public may be solicited within the specified period by IAA in public hearings arranged for that purpose. The public shall be provided access, subject to public interest, to the summar....
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.... said Report, mining of limestone in Khasi Hills was a source of revenue right from 1858. The limestone deposit in Meghalaya is estimated to be 2165 million tonnes. Exploitation of Nongtrai limestone dates back to 1885. Even today, a number of private parties quarry limestone in this area. An area of 100 hectares stood acquired by LMMPL on lease basis for mining. For that an agreement was signed with Village Durbar. The limestone bearing area around Nongtrai and Shella falls under the Karst topography. This area falls on the southern fringe of the Meghalaya plateau. [See Land Use/ Land Cover Map (March 1997) submitted by Mr. F.S. Nariman, Source: IRS-1C LISS-3 MX DATA, Path & Row: 111-054, Date: March 1997] Karst topography is a landscape formed by the dissolution of a layer(s) of soluble bedrock, usually carbonate rock such as limestone. Karst topography is characterized by limestone caverns carved by groundwater. Karst landscapes are formed by the removal of bedrock (composed in most cases of limestone, gypsum or salt). [See Article from Encyclopedia Britannica by William B. White] Alongwith the application, a certificate dated 27.8.1997 was annexed. It was issued by Khasi Hills ....
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.... nominees of Forest Conservators and Member Secretary of the Pollution Control Board. According to the Headman of Nongtrai Village, limestone is abundantly available in the area; the same has not been utilized by local villagers due to lack of infrastructure; for economic development, the Village Durbar had decided to lease the area; the environmental implications of the project stood discussed; complaint received from Meghalaya Adventures Association was read out which complaint mainly dealt with destruction of caves which stood rebutted by the Headman and, thus, the meeting stood concluded. All this indicates even public participation and grant of NO Cs by various competent authorities. Vide Annexure J to the application for environmental clearance, we find approval being granted under Section 5(1) of the Mines and Minerals (Regulation and Development) Act, 1957. Along with the application for environmental clearance M/s. LMMPL also forwarded to MoEF Rapid EIA of Limestone Mine prepared by Environmental Resources Management India Pvt. Ltd. This report describes in detail the topography of the mining site. According to the said report the leased area lies on the western side of Um....
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....1972, list of species under the 1972 Act, consent from the State Pollution Control Board for 3000 TPD of limestone, information on ground water potential, information regarding water requirement, etc. Clarifications sought by MoEF vide letters dated 1.5.2000 and 16.6.2000 for environmental clearance were answered by LMMPL vide letter dated 17.8.2000. As per the said reply, the environmental public hearing notice was published in three newspapers; that, earlier the project proposal was for 0.8 million tonnes per annum but later on based on the increased cement plant production capacity in Bangladesh, it stood increased to 2.0 MTPA; that, earlier the lease period was proposed to be 35 years which stood reduced to 30 years; that, the mine site was on Karst topography which neither MoEF nor the Shella Action Committee ("SAC" for short) denies; that, the equipment to the mine site would be brought through Guwahati - Shillong - Mawsynram route which contains an established route whose width was 7.5 m wide; that, there was no proposal to cut any trees for the purpose; that, no sanctuary/ national park is located within 25 kms. radius from the proposed mine location; that, the mine site is....
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....ment; report on Afforestation Reclamation Plan, report on Physiography and Hydrogeology of Fugro Milieu Consult B.V. and report on Catchment Area Treatment Plan, vide letter dated 9.2.2001 addressed to MoEF. One more aspect may be noted. These reports were placed before the Expert Committee once again on 7.3.2001. Even Wild Life Division also gave its report on 1.6.2001. After placement of all these reports, at the end of the day, EIA Clearance was given by MoEF on 9.8.2001 which again contained further conditions which were to operate once the developmental work started. According to the environmental clearance dated 9.8.2001, the total lease area of the mine is 100 hectares; that no diversion of forest land was involved; that the targeted annual production capacity of the mine had to be 2.0 million tonnes and, lastly, certain general conditions were stipulated with regard to steps to be taken during the developmental work. On EIA Clearance being granted by MoEF, LMMPL became desirous of transferring and assigning the lease in favour of LUMPL having its registered office at Shillong on which the State Government granted permission to transfer the mining lease vide order dated 29.8....
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..... The complaint made by the Chief Conservator of Forests (C) was conveyed to the project proponent. In terms of the said complaint, MoEF directed M/s. LMMPL to obtain forest clearance under the 1980 Act before taking steps to clear vegetation including trees for developing mining benches. On 14.9.2006, MoEF issued EIA Notification 2006 whereunder concerns of local affected persons were required to be taken into account through public consultation. By letter dated 29.1.2007, M/s. Lafarge took the stand that there is some natural growing vegetation; that only those shrubs which are growing in the excavation plan have been cleared and since there was no diversion of forest land for non-forestry purposes the 1980 Act was not applicable. Vide letter dated 9.4.2007 addressed by the Chief Conservator of Forests (C) to the Secretary, Department of Forest and Environment, Government of Meghalaya as well as to the Khasi Hills Autonomous District Council, it was pointed out that the mining project was undertaken in the virgin and natural forest; that the forest is standing all around the periphery of the broken area; that the mine was operating on forest land without clearance under the 1980 ....
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....onditions leviable under the law. By letter dated 11.5.2007 addressed by the Principal Chief Conservator of Forests, Meghalaya to the Government of Meghalaya, it was pointed out that the project proponent had broken up area of about 21.44Ha; that the topography in the leased mine around the broken up areas was Karst topography consisting of limestone surface having natural fissures and crevices; that a sizeable quantity of limestone was lying in and around the broken up area; that the non-broken up area in the leased mine was forest land falling within the purview of the 1980 Act. By the said letter, the Principal Chief Conservator of Forests submitted that the project proponent be allowed to remove the already broken limestone from the site and that the project proponent may be directed to apply for forest clearance under the 1980 Act for the non-broken up part of the leased area. It is at this stage that M/s. Lafarge moved this Court by way of I.A. No. 1868 of 2007 inter alia seeking orders directing MoEF to expeditiously process its application under Section 2 of the 1980 Act within a time bound programme preferably within 60 days. By letter dated 3.7.2007 addressed by M/s. Lafa....
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....atisfied with the mining company which has provided health care facilities, drinking water facilities, employment, schools etc. According to the report, M/s. Lafarge has been contributing for the benefits of the village as well as for all the villagers by way of payment of rent for the use of the community land as well as towards the price of limestone exported to Bangladesh. The figures of such payments are also indicated in the report. Further, the report states that mining is not having any adverse effect on the human life. When the matter came before the Supreme Court on 12.4.2010, the learned Attorney General stated that MoEF will take a final decision under the 1980 Act for the revised environmental clearance for diversion of 116 Ha of forest land subject to certain conditions. Accordingly, on 19.4.2010 the MoEF granted environmental clearance with certain additional conditions. The environmental clearance dated 19.4.2010 was followed by forest clearance dated 22.4.2010 (ex-post facto clearance) granted by MoEF. This letter refers to letter of the State Government dated 19.7.2007 forwarding its proposal for diversion of 116.589 Ha of forest land for Lime Stone Mining in favou....
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....nted effectively. The minutes of the meeting of the Expert Appraisal Committee dated 21.7.2010 also recites that various reports were considered by the Committee. It also recites the fact that the Government of Meghalaya had addressed a letter to MoEF on 12.7.2010 conveying their recommendations for the grant of formal approval under Section 2 of the 1980 Act for diversion of 116.589 Ha of forest land for Lime Stone Mining. On 21.10.2010 M/s. Lafarge submitted a compliance chart of 31 conditions. Submissions 9. According to the learned Amicus Curiae, it is obvious from all the documents that have come on record including those filed by M/s. Lafarge that permissions under EIA Notification, 1994 (as amended) under Section 3 of the 1986 Act have been obtained without a candid disclosure of the facts. That, even if it is held that in cases of bona fide mis-interpretation of statutory provisions and Rules the project stood commenced without obtaining prior permission as mandated under Section 2 of the 1980 Act, save and except in cases of absolute candor and where the want of such permission is solely and entirely on account of bona fide doubt as to the nature and character of the lan....
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....e assigned to an ulterior motive of obtaining exemption or avoiding taking prior approval of Government of India under the 1980 Act. The learned Amicus also placed reliance on the report dated 11.5.2007 of the Principal Chief Conservator of Forests. In the said report dated 11.5.2007, the Principal Chief Conservator of Forests also agreed with the view of the Chief Conservator of Forests (C) stating that the project proponent should have taken permission under the 1980 Act to start the operation in the area. According to the learned Amicus, though the mine commenced commercial production w.e.f. October, 2006, the said commencement was based on approvals granted by statutory authorities on the assumption that the mining lease area is a non-forest land. In this connection, learned Amicus pointed out that the entire case of the project proponent is based on only one certificate issued by DFO, Khasi Hills Division dated 13.6.2000 in which it has been certified that the mining site for limestone mining project at Nongtrai, East Khasi Hills District, Meghalaya is not a forest area in terms of the order of this Court dated 12.12.1996 and that it does not fall under any notified reserved o....
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....ally states that the vegetation at the study site is a mixed moist deciduous forest. Reliance is also placed by the learned Counsel on the assessment of floral diversity prepared by NEHU in June, 2010 which indicates that the forest in the study area can be categorized into tropical moist-deciduous forest, tropical semi evergreen forest, savanna, sub-tropical broad leaves forest, forest garden, orchards and riparian forest. According to the said assessment of 2010, the vegetation in the core area is tropical moist-deciduous types whereas the vegetation in the proper zone can be categorized into tropical and sub-tropical types. Thus, according to the learned Counsel having regard to the undisputed position emerging from the record the subject area is covered by a tropical moist forest deserving highest degree of ecological protection and therefore this Court should set aside the environmental clearance dated 9.8.2001 given under Section 3 of the 1986 Act by MoEF. In this connection it may be mentioned that SAC has also moved this Court by way of I.A. No. 2937 of 2010 seeking revocation of the environmental clearance dated 9.8.2001. They have also challenged the revised environmental....
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....n June, 2010. According to the learned Counsel, despite knowledge of the definition of "forest" and the provisions of the 1958 Act, the government officials issued letters containing incorrect information in relation to the forest cover. These letters are the letter dated 28.4.1997 from Khasi Hills Autonomous District Council, letter from the Deputy Commissioner, East Khasi Hills District dated 10.7.1997 enclosing a spot inquiry report which stated that there was no forest on the land proposed to be leased out, letter dated 27.8.1997 from Khasi Hills Autonomous District Council granting NOC on the basis that there was no forest and certificate dated 13.6.2000 issued by DFO, Khasi Hills Division stating that there was no forest on the land proposed to be leased out. According to the learned Counsel, the environmental clearance dated 9.8.2001 issued by MoEF was premised on "No diversion of forest land or displacement of people is involved". According to the learned Counsel, the said premise is per se incorrect as there is a tropical moist -deciduous forest in the area being mined. According to the learned Counsel, the environmental clearance dated 9.8.2001 was clearly granted on the ....
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.... 2010 filed by SAC seeking revocation of the parent environmental clearance dated 9.8.2001 and revised environmental clearance dated 19.4.2010 and forest clearance dated 22.4.2010 be allowed. 12. On the nature of the land in question, learned Attorney General submitted that in the EIA Report (NEHU Report), annexed along with the application dated 1.9.1997 for grant of environmental clearance, a description of the vegetation area at the proposed mining site which is distributed in three distinct layers indicated that the third and the lower layer consisted of shrubs and herbs and their poor growth was due to lack of soil. It was also mentioned that the majority of valuable timber trees had already been extracted from the mining site in the past in Meghalaya by the tribals who lived on timber. In para 4.9 of the Report the site was described to be mostly covered with pole sized trees, shrubs and herbs. This EIA Report did not make reference to the Certificate dated 28.4.1997 of the Khasi Hills Autonomous District Council, the Spot Inspection Report dated 10.7.1997 nor the Certificate dated 27.8.1997 issued by the Council all of which referred to absence of forest. According to the l....
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....MMPL forwarded a certificate of DFO dated 13.6.2000 which stated that the proposed mining site for limestone mining project at Phalangkaruh, Nongtrai, East Khasi Hills District, Meghalaya leased out by M/s. LMMPL is not a forest area as per Supreme Court judgment and it does not fall under any of the notified reserves or protected forests. The area is covered with Karst topography and supports only a sporadic growth of a few trees, shrubs and creepers. The proposal of M/s. LMMPL was once again discussed at the meeting of the Expert Committee (Mining) held on 19-20.10.2000. This Committee sought further information and clarification, one of the clarifications sought was a detailed survey of the plant and animals to be carried out with the help of BSI and ZSI officers situated in Shillong. It also sought a video film of the site and other areas. Accordingly, on 9.2.2001 M/s. LMMPL gave the requisite response as desired by MoEF as well as additional information was also provided in respect of a comprehensive survey and Flora and Fauna Report dated January, 2001 of Dr. A.K. Ghosh (Former Director ZSI). The said Report of January, 2001 extensively dealt with tropical semi-evergreen fore....
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....der the 1980 Act also. 13. At the outset, Shri F.S. Nariman, learned senior counsel appearing on behalf of M/s. Lafarge adopted the submissions made on behalf of MoEF by the learned Attorney General. As regards the nature of the land, the learned Counsel invited our attention to the approved mining plan which was submitted by LMMPL to the Regional Controller of Mines, IBM, Calcutta for limestone extraction which plan was duly approved in February, 1998. In this approved mining plan, the project area was described as having Karst topography with the presence of deep caverns, caves and cracks which permit surface water to percolate downwards and circulate underground only to reappear as hills side springs at certain outlets. According to the mining plan, the terrain over the entire area is rocky with very little soil and devoid of hard overburden rocks. The vegetation of the area is seen to be mixed deciduous type. There is no agricultural activity in the area as thin soil cover is unable to sustain crops. That, even according to the NEHU Report of 1997, the site selected for mining has commercially viable limestone deposit. According to the said report, the land was left unused cov....
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....in 90 days of the receipt of the proposal from the "User Agency". The threshold limit was kept at 40 hectares. Where the proposal involved forest land of more than 40 hectares, it was to be sent by the State Government to the Government of India with the copy to the Regional Nodal Officer. According to the learned Counsel, insofar as M/s. Lafarge was concerned, its predecessor LMMPL was already given environmental clearance on 9.8.2001 and while granting the clearance there was an express finding in the environmental clearance that "no diversion of forest land was involved". Thus, it was never stipulated at any time as a condition to the grant of environmental clearance dated 9.8.2001 that permission under the 1980 Act should be obtained. The learned Counsel further pointed out that pursuant to the Order of this Court dated 12.12.1996 an Expert Committee was formed by the State of Meghalaya vide notification dated 8.1.1997 with the Principal Chief Conservator of Forests as its Chairman. On 10.2.1997, the State of Meghalaya, on the subject of "Order of the Supreme Court dated 12.12.1996" wrote to the Khasi Hills Autonomous District Council that the land in question was reckoned by t....
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....learance is obtained. After the said letter dated 1.6.2006, the then Principal Chief Conservator of Forests now stated vide letter dated 11.5.2007 that he too agreed with the opinion of the Chief Conservator of Forests (C), Shri Khazan Singh. However, according to the learned Counsel, even the Principal Chief Conservator of Forests stated in his letter dated 11.5.2007 that though M/s. Lafarge had failed to take forest clearance, they were not at fault because of the certificate of the Council that the site fell in a non-forest area. The letter dated 11.5.2007 further goes on to state that the activities of the company will provide employment to large number of local tribals and rural people and that since the company had applied for forest clearance on 3.5.2007 forest clearance may be considered. Thus, according to the learned Counsel, there was no collusion between M/s. Lafarge and the DFO as alleged to get the certificate dated 13.6.2000. 15. On the question of alleged suppression by M/s. Lafarge from MoEF of the NEHU Report 1997, learned Counsel submitted that an application was prepared and submitted by M/s. LMMPL for Environmental Clearance to MoEF vide letter dated 1.9.1997;....
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....h the Khasi translation of the public notice. On 6.5.1998 MPCB wrote to Shella Confederacy asking its Headman to display two sets of executive summary each in Khasi and English. On 13.5.1998 the State PCB wrote to the Director of Information asking him to publish public notice in Shillong Times. On 25.5.1998 the State PCB wrote to the Secretary, Shella village informing him of date and time of public hearing. 31 members attended the public hearing on 3.6.1998. As stated above, the entire proceedings have been recorded in the minutes of the meeting. On 4.9.1998 the Deputy Director, Govt. of India, MoEF forwarded a letter to the State PCB enclosing proceedings of the public hearing conducted for proposed limestone mining project of M/s. LMMPL, Nongtrai. Thus, according to the learned Counsel there is no merit in the submission advanced on behalf of SAC that public hearing as per EIA Notification of 1997 did not take place. 16. Shri Nariman, learned Counsel appearing on behalf of M/s. Lafarge further submitted that on facts and circumstances of the present case it is clear that both the project proponent and the MoEF were at all relevant times under the bona fide impression that the ....
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....d by learned Amicus and by the learned Counsel appearing on behalf of SAC that the EIA clearance under Section 3 of the 1986 Act dated 9.8.2001 (being a parent clearance) was obtained by M/s. Lafarge on the basis of "absence of forest" with full knowledge that the project site was located on forest land. Findings (a) Legal Position 19. Universal human dependence on the use of environmental resources for the most basic needs renders it impossible to refrain from altering environment. As a result, environmental conflicts are ineradicable and environmental protection is always a matter of degree, inescapably requiring choices as to the appropriate level of environmental protection and the risks which are to be regulated. This aspect is recognized by the concept of "sustainable development". It is equally well-settled by the decision of this Court in the case of Narmada Bachao Andolan v. Union of India and Ors. (2000) 10 SCC 664 that environment has different facets and care of the environment is an on-going process. These concepts rule out the formulation of across-the-board principle as it would depend on the facts of each case whether diversion in a given case should be permitted....
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....tern Hill State of Meghalaya is predominantly tribal with 86% population being tribal. According to the NEHU Report of 1997, approximately 60 settlements consisting of 50-200 inhabitants each with a total estimate population of 16500 persons exist within 10 km radius of the proposed mining site. Under an agreement dated 29.9.1993 (lease agreement), the village Durbar represented by a Special Committee headed by the Headman as lessor granted lease of the limestone quarry in Nongtrai to M/s. LMMC (the predecessor-in-interest of M/s. LMMPL). Thus, an area of 100 hectares stood acquired on lease basis for mining whose lessor was the village Durbar of Nongtrai. Coming to the topography of the area, one finds that the limestone bearing area around Nongtrai and Shella villages falls under Karst topography. This area falls on the southern fringe of the Meghalaya plateau. Karst topography is characterized by a limestone caverns/ caves. The factum of limestone bearing area around Nongtrai and Shella falling under Karst topography is also borne out by the certificate dated 27.8.1997 issued by KHADC, Shillong. This Council is a constitutional authority under Sixth Schedule of the Constitution.....
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....est clearance ought to have been granted by MoEF because of the special ecological significance recognized by the 1988 policy. According to SAC, the fact that tropical moist forest existed in the area and continues to exist was known to M/s. Lafarge at all material times as can be seen from the NEHU Report of 1997 in which it has been categorically stated that the vegetation at the study site is a mixed moist deciduous forest composed of deciduous and evergreen tree elements; that, in the same Report it has been further stated that the vegetation of the area is a tropical semi-evergreen forest composed of deciduous and evergreen elements which is further corroborated by the assessment of Floral Diversity prepared by NEHU dated June, 2010 in which it has been stated that the forest in the study area is tropical moist deciduous forest, tropical semi-evergreen forest, savanna, sub-tropical broad leaves forest, forest garden, orchards and riparian forest; that, the vegetation in the unbroken area is tropical moist deciduous type with variable canopy cover mostly sparse. Thus, according to SAC and CEC, the undisputed position emerging from the record that the subject area is covered by ....
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....olicy, particularly, where tropical moist forests are sought to be cleared by the project proponent. According to the learned Counsel, where MoEF grants environmental clearance in ignorance of the existence of a forest due to mis-declaration, it is duty bound to take severest possible action against the party that made the false declaration for profit. According to the learned Counsel, since impact assessment and EIA clearances are processes based on self declarations by the project proponent (s), the decision making by MoEF depends upon honest and cogent material supplied by the project proponent and since the said process is premised on a full and fair disclosure of relevant facts by the project proponent, in cases where material facts are not disclosed, the MoEF should withdraw both the site as well as the environmental clearances. According to the learned Counsel, the most important input in this regard must be received by MoEF in the course of its decision making from the public which is an essential check for a failure to disclose correct facts or to have regard to environmental issues that may have escaped the attention of the project proponent. According to the learned Coun....
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.... Forest (Conservation) Rules, 1981 (see Rule 4). Thus, the requirement of submitting the proposal for forest diversion under the 1980 Act is exclusively the obligation of the State Government. This position was spelt out initially in the guidelines dated 25.10.1992. However, later on, the Government of India amended the guidelines in respect of diversion vide letter dated 25.11.1994 and by the said letter the concept of "User Agency" stood introduced. On 10.1.2003, Rule 4 of the 1981 Rules stood reframed which inter alia provided that every "User Agency" who wants to use any forest land for non-forest purpose shall make its proposal in the specified form appended to the Rules to the concerned Nodal Officer along with the requisite information before undertaking any non-forest activity on the forest land and after receiving the said proposal and if the State Government is satisfied that the proposal required prior approval under Section 2, the State Government had to send the said proposal to the Central Government in the appropriate form within the specified period of 90 days from the receipt of the proposal from the "User Agency". At this stage, it may be noted that the earlier pr....
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....f tall trees and in the circumstances he recommended that the project proponent should be directed to obtain clearance under the 1980 Act and not to carry on the mining activities till such clearance is obtained. The most important fact is that subsequent to the letter dated 1.6.2006, addressed by the Chief Conservator of Forests (C), Shri Khazan Singh, the Principal Chief Conservator of Forests agreed with the opinion of the Chief Conservator of Forests (C). This was by letter dated 11.5.2007. However, even according to the Principal Chief Conservator of Forests, who was the Chairperson of the Expert Committee appointed by the State Government, M/s. Lafarge was not at fault because the certificate indicating absence of forests was given by Khasi Hills Autonomous District Council. In fact the letter dated 11.5.2007 further goes to state that the activities of M/s. Lafarge will provide employment to a large number of local tribals and rural people and consequently the application for forest clearance made by M/s. Lafarge without prejudice to their rights and contentions dated 3.5.2007 be considered by MoEF. Apart from the above circumstances, on 22.4.1998, a notification was issued ....
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....lement, the struggle to protect the environment is often a part of the struggle to protect the culture of the native and indigenous people" (see page 591). In our view, the natives and indigenous people are fully aware and they have knowledge as to what constitutes conservation of forests and development. They equally know the concept of forest degradation. They are equally aware of systematic scientific exploitation of limestone mining without causing of "environment degradation". However, they do not have the requisite wherewithal to exploit limestone mining in a scientific manner. These natives and indigenous people know how to keep the balance between economic and environment sustainability. In the present case, the above is brought out by the Minutes of the meeting held on 3.6.1998. In fact the written submissions filed by the Nongtrai Village Durbar (Respondent No. 5) in I.A. No. 1868 of 2007 preferred by M/s. Lafarge have specifically averred that the total area of the land that falls within the jurisdiction of Nongtrai Village is about 2200 hectares; that, the said lands fall in two categories, namely, individual ownership lands, and community lands. The management and cont....
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....ides that no timber or forest produce shall be removed for the purpose of sale, trade and business without prior permission. Section 7 of the said Act deals with restrictions on felling of trees and further provides that no tree below 1.37 metre in girth at the breast level shall be felled. Thus, it is the trees of a particular girth and breast height and not every tree should be counted while computing whether a particular area is a forest area or not. In fact in the year 2007, a survey of the unbroken area was conducted by the Forest Department of the State of Meghalaya wherein an inventory of the existing trees was prepared based on their nature and girth. The said record confirms that the unbroken area has less than 25 trees per acre having girth of more than 120 cms per acre. It is in view of the existence of the 1958 Act, which is a local legislation, that the native people as also the State officials like the DFO understood the area in the light of the said Act. It is important to note once again that this understanding of the natives and tribals about the Local Act is an important input in the decision making process of granting environmental clearance. It is deeply engrain....
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.... SAC. However, we do not wish to express any conclusive finding on this aspect at this stage. On the ex post facto clearance, suffice it to state that after Shri Khazan Singh, Chief Conservator of Forests (C) submitted his report on 1.6.2006, MoEF directed the project proponent to apply for necessary clearances on the basis that there existed a forest in terms of the order of this Court dated 12.12.1996 and the ex post facto clearance has now been granted on that basis permitting diversion of forest by granting Stage-I forest clearance subject to compliance of certain conditions imposed by MoEF and by this Court. On the question of non-application of mind by the MoEF, we find that at various stages despite compliances by the project proponent and despite issuance of certificates by various authorities, MoEF sought further clarifications/ information by raising necessary requisitions. To give a few instances in terms of the 1994 EIA Notification, the then project proponent made an application to MoEF for grant of environmental clearance. With that application, the then project proponent submitted the NEHU Report of 1997. However, in the mean time there was an amendment to the EIA No....
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....reclamation plan. It further states that the indigenous and native people are satisfied with the credentials of M/s. Lafarge as the company is providing health care facilities, drinking water facilities, employment for local youth, construction of village roads, employment for school teachers, scholarship programme for children, etc. It also indicates that the issue of mining was thoroughly discussed with the Village Durbar by the members of the HPC who visited the site and that the community was in agreement to allow M/s. Lafarge to continue mining. The report further notes that most of the members of the SAC were not the residents of the locality (Shella Village) and were living in Shillong while occasionally visiting Shella. The report further states that 200 persons participated in a long interaction with the members of HPC. The report further states that in fact the villagers became very upset in the apprehension of M/s. Lafarge not being allowed to mine on their community land. As stated above, even according to the letter dated 11.5.2007, the Principal Chief Conservator of Forests states that though the site falls in the forest as pointed out by Shri Khazan Singh, the Chief ....
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....shall follow the principles and procedure presently applied for utilization of CAMPA money. The account will be audited by the Accountant General, Meghalaya. The money will be kept in interest bearing account with a Nationalized Bank. The Accountant General and the SPV shall file an Annual Report before this Hon'ble Court detailing all the work done by it in relation to the welfare projects mandated upon it including the development of health, education, economy, irrigation and agriculture in the project area of 50 kms. solely for the local community and welfare of Tribals. 5. The User Agency will comply with all the conditions imposed on it earlier as well as further recommendations made by the Committee constituted by the MoEF under the order dated 30th march, 2010, including, in particular, the following: (a) It shall prepare a detailed Catchment Area Treatment Plan. (b) It shall explore the use of surface miner technology. (c) It shall monitor ambient area quality as per New National Ambient Air Quality Standards. (d) It shall take steps to construct a Sewage Treatment Plant and Effluent Treatment Plant. (e) It shall discontinue any agreement for procuring limes....
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....the decision? Is the decision strictly in accordance with the legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision? Thus, the court should review the decision-making process to ensure that the decision of MoEF is fair and fully informed, based on the correct principles, and free from any bias or restraint. Once this is ensured, then the doctrine of "margin of appreciation" in favour of the decision-maker would come into play. Our above view is further strengthened by the decision of the Court of Appeal in the case of R. v. Chester City Council reported in (2011) 1 All ER 476 (paras 14 to 16). 31. Accordingly, this matter stands disposed of keeping in mind various facets of the word "environment", the inputs provided by the Village Durbar of Nongtrai (including their understanding of the word "forest" and the balance between environment and economic sustainability), their participation in the decision-making process, the topography and co....
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....n) Act, 1980. This direction is required to be given because there is no machinery even today established for implementation of the said National Forest Policy, 1988 read with the Forest (Conservation) Act, 1980. Section 3 of the Environment (Protection) Act, 1986 confers a power coupled with duty and, thus, it is incumbent on the Central Government, as hereinafter indicated, to appoint an Appropriate Authority, preferably in the form of Regulator, at the State and at the Centre level for ensuring implementation of the National Forest Policy, 1988. The difference between a regulator and a court must be kept in mind. The court / tribunal is basically an authority which reacts to a given situation brought to its notice whereas a regulator is a pro-active body with the power conferred upon it to frame statutory Rules and Regulations. The Regulatory mechanism warrants open discussion, public participation, circulation of the Draft Paper inviting suggestions. The basic objectives of the National Forest Policy, 1988 include positive and pro-active steps to be taken. These include maintenance of environmental stability through preservation, restoration of ecological balance that has been ....
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....he project proponent makes a claim regarding status of the land being non-forest and if there is any doubt the site shall be inspected by the State Forest Department along with the Regional Office of MoEF to ascertain the status of forests, based on which the certificate in this regard be issued. In all such cases, it would be desirable for the representative of State Forest Department to assess the Expert Appraisal Committee. (iv) At present, there are six regional offices in the country. This may be expanded to at least ten. At each regional office there may be a Standing Site Inspection Committee which will take up the work of ascertaining the position of the land (namely whether it is forest land or not). In each Committee there may be one non-official member who is an expert in forestry. If it is found that forest land is involved, then forest clearance will have to be applied for first. (v) Increase in the number of Regional Offices of the Ministry from six presently located at Shillong, Bhubaneswar, Lucknow, Chandigarh, Bhopal and Bangalore to at least ten by opening at least four new Regional Offices at the locations to be decided in consultation with the State/UT Gover....
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....ve a Corporate Environment Policy of their own to ensure greater compliance with the environmental and forestry clearance granted to them. (xi) All minutes of proceedings before the Forest Advisory Committee in respect of the Forest (Conservation) Act, 1980 as well as the minutes of proceedings of the Expert Appraisal Committee in respect of the Environment (Protection) Act, 1986 are regularly uploaded on the Ministry's website even before the final approval/decision of the Ministry for Environment and Forests is obtained. This has been done to ensure public accountability. This also includes environmental clearances given under the EIA Notification of 2006 issued under the Environment (Protection) Act, 1986. Henceforth, in addition to the above, all forest clearances given under the Forest (Conservation) Act, 1980 may now be uploaded on the Ministry's website. (xii)Completion of the exercise undertaken by each State/UT Govt. in compliance of this Court's order dated 12.12.1996 wherein inter-alia each State/UT Government was directed to constitute an Expert Committee to identify the areas which are "forests" irrespective of whether they are so notified, recognized o....