TALAULICAR & SONS P.LTD. Vs UNION OF INDIA
Bench: T.S. THAKUR,FAKKIR MOHAMED IBRAHIM KALIFULLA,UDAY UMESH LALIT
Case number: C.A. No.-001247-001247 / 2012
Diary number: 36792 / 2011
Advocates: YASHRAJ SINGH DEORA Vs
JYOTI MENDIRATTA
Page 1
Reportable
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1247 OF 2012
Talaulicar & Sons P. Ltd. …Appellant VERSUS
Union of India & Anr. …Respondents
WITH
CIVIL APPEAL NO. 6174 OF 2016 [arising out of SLP(C). 17731/2016 @ CC No.20925 of 2012]
WITH
T.P.(C) NO.1843 OF 2013
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
Delay condoned.
Leave granted in SLP(C)……../2016 @ CC No.20925 of 2012.
1. These appeals are directed against a Division Bench judgment
dated 12.08.2011 of the High Court of Bombay at Goa in Public
Interest Litigation Writ Petition No.6 of 2011. The said writ petition was
moved at the instance of the second respondent herein with a prayer
that the appellant was originally granted environmental clearance for
the expansion of Saniem Sacorda Iron Ore Mine on 25.11.2005 for
two years, that by a subsequent letter dated 18.10.2007 of the first
respondent, the two years period to conduct a higher geological study
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was deleted, that by virtue of the conditions stipulated in the
Notification dated 27.01.1994 read along with the Notification dated
04.05.1994 such environmental clearance granted in favour of the
appellant expired on 25.11.2010 and that in spite of such expiry, the
appellant continued to indulge in mining operations. The second
respondent therefore contended that such illegal mining activity of the
appellant was not controlled by the first respondent even after the
second respondent’s communication dated 30.11.2010. It was on the
above said basis, the second respondent prayed for the issuance of
the mandamus directing the first respondent to stop the operation of
Saniem Sacorda Iron Ore Mine of the appellant and also direct for
payment of compensation for having caused environmental damage. 2. The Division Bench of the High Court having made a detailed
analysis of the grievance of the second respondent as a local resident,
the relevant provisions of the Statute as well as the Environment
Impact Assessment (EIA) Notification dated 27.01.1994, took the view
that the clearance granted in favour of the appellant in the order dated
25.11.2005 for the expansion of Saniem Sacorda Iron Ore Mine was
initially for a period of two years as per the EIA Notification of 1994
and that such clearance can be valid only for a period of five years as
is stipulated in the EIA Notifications and the relevant Rules. The
Division Bench ultimately held that the appellant was carrying on the
mining operations without a valid subsisting environmental clearance
and while granting liberty to the appellant to seek an
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extension/renewal of the environmental clearance for a further period,
in accordance with law, within a period of three months also directed
that in the event of non-grant of any such environmental clearance,
the appellant should discontinue mining operations of the concerned
mine, till such time environmental clearance is granted. While holding
so, the Division Bench made it clear that the validity of the
environmental clearance granted in favour of the appellant was only
for a period of five years from the date of commencement of the
operation of the mining projects / expansion of the project carried out
by the appellant. Aggrieved by the said judgment of the Division
Bench, the appellant is before us.
3. It will be worthwhile to note certain observations of the Division
Bench before passing final orders in these appeals. While considering
the question whether the validity of the environmental clearance
granted in favour of the appellant would be limited for a period of five
years or more, the Division Bench made a reference to Para 2(III)(c) of
the EIA Notification of 1994 wherein it was stipulated that clearance
granted would be valid for a period of five years from the
commencement of the construction or operation of the projects, that
such prescription of the period has got a nexus to the environment
protection. In that context, the Division Bench further observed that
the purpose and object of the Environment Protection Act and the
Rules framed there under must be given its full effect, that if there is
no check on the environment hazard at the time of carrying out the
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mining activities, it could lead to degradation of the environment, that
carrying out impact assessment within specific period would assist in
ascertaining the adverse effect of the project activity which is sought to
be pursued by the project proponent, that any activity carried out in
respect of specific projects such as mining, requires environmental
clearance in order to see that such activities would not result in further
degradation of the environment affecting the life of the residents in the
locality and therefore the prescription of limited period had a nexus to
the grant of environmental clearance. The Division Bench also
rejected the claim of the appellant that once the environmental
clearance was granted, the same would be valid for thirty years based
on the subsequent Notification of 2006 in supersession of the
Notification dated 27.01.1994. 4. Having thus noted the above observations of the Division
Bench, we heard Mr. Shyam Divan, learned senior counsel for the
appellant, Mr. A.N.S. Nadkarni, learned Advocate General for Goa, Mr.
Colin Gonsalves, learned senior counsel for the second respondent
and Ms. Pinky Anand, learned Additional Solicitor General for the first
respondent.
5. We find that the appellant applied for environmental clearance
for expansion of Saniem Sacorda Iron Ore Mine falling within Tehsil
Sariguem, District South Goa in the Union Territory of Goa, in its
application dated 15.03.2005, followed by subsequent letters dated
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28.04.2005 and 16.08.2005. The first respondent passed orders on
25.11.2005. In paragraph 2.0 it was stipulated that the Ministry of
Environment and Forest (MoEF in short) accord environmental
clearance for a period of two years only to Saniem Sacorda Iron Ore
Mine of the appellant involving a lease area of 50.30 hectares for
production of iron ore under the provisions of Environment Impact
Assessment Notification, 1994, subject to specific conditions under
caption ‘A’. In sub-para (ii) of Para ‘A’, it was specifically noted as
under: “A(ii). The proponent shall within 2 years conduct
a detailed hydrogeological study (quality and
quantity) on impact of mining on hydrogeology
(pre-monsoon, monsoon and post-monsoon) and
furnish a detailed report on the same to the
Ministry. Based on the same, a decision regarding
continuation of mining beyond 2 years or
otherwise will be taken.”
6. After the said order dated 25.11.2005, the first respondent
passed its subsequent order dated 18.10.2007, wherein, it was stated
that in pursuance of its order dated 25.11.2005, the appellant had filed
the report of hydrogeological study on impact of mining on
hydrogeology of the mine lease area, that on examination of the said
report, it was found that radius of influence due to mine pit dewatering
would extend to about 235 meters around the mine pit, that the stage
of ground water development is about 4.53% which according to the
first respondent was well within the safe limits as per Central
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Groundwater Board Norms. It was also noted that the results of
chemical quality data of both surface water and groundwater as well
as mine pit water indicated no contamination due to mining operations.
In paragraph 3 of the said order, the first respondent ultimately deleted
the prescription of two years period stipulated in the order dated
25.11.2005. 7. It was in the above stated background, that the second
respondent moved the High Court as a local resident alleging that
having regard to the EIA Notification dated 27.01.1994 as amended by
subsequent Notification dated 04.05.1994, the environmental
clearance granted in favour of the appellant was valid only for a period
of five years from the date of commencement and consequently the
five years period having expired on 25.11.2010, further mining
operations of the appellant in the above referred to mine by way of
expansion was in violation of the provisions of the Environment
Protection Act, the EIA Notifications and the relevant Rules. 8. In so far as the right of a local resident is concerned, when we
make a reference to the initial Notification dated 27.01.1994, in
paragraph 2(III)(c) it is specifically provided as under: “2.(III)(c). The Impact Assessment Agency shall prepare
a set of recommendations based on technical
assessment of documents and data, furnished by the
project authorities, supplemented by data collected
during visits to sites or factories, if undertaken, and
interaction with affected population and environmental
groups, if necessary. Summary of the reports, the
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recommendation and the conditions, subject to which
environmental clearance is given, shall be made
available subject to the public interest to the concerned
parties or environmental groups on request. Comments
of the public may be solicited, if so decided by Impact
Assessment Agency, within thirty days of receipt of
proposal, in public hearings arranged for the purpose
after giving thirty days notice of such hearings in at least
two newspapers. Public shall be provided access,
subject to the public interest, to the summary of the
reports/Environmental Management Plans at the
Headquarters of the Impact Assessment Agency. The assessment shall be completed within a period of
ninety days from receipt of the requisite documents and
data from the project authorities and completion of
public hearing, where required, and decision conveyed
within thirty days thereafter. The clearance granted shall be valid for a period of five years for commencement of the construction or operation. No construction work, preliminary or otherwise, relating to the setting up of the project may be undertaken till the environmental and/or site clearance is obtained.”
(Emphasis added)
9. Again when we make reference to the subsequent Notification
dated 14.09.2006, there is a specific provision therein also in
paragraph III Stage III clause (i) & (ii) which contains as many
sub-paragraph (a) to (f) in clause (i), (a) and (b) in Clause (ii) apart
from Clause (iii) to (vii). The specifications contained in the
Notification dated 14.09.2006, states that the same came to be issued
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in supersession of the Notification dated 27.01.1994. It also stipulates
the Constitution of State Level Environment Impact Assessment
Authority, categorization of projects and activities, screening, scoping
and appraisal committees, different Stages for prior environmental
clearance (EC-process for new projects), process for expansion or
modernization or change of product mix in existing projects and at the
end in paragraph 8, grant or rejection of prior environmental clearance
and in paragraph 9 validity of environmental clearance and in
paragraph 10 post environmental clearance monitoring, in paragraph
11 transferability of environmental clearance is also provided. 10. Keeping the above relevant factors in mind, we heard the
learned senior counsel for the appellant, learned Additional Solicitor
General and the learned Advocate General, the learned senior
counsel for the second respondent. In order to examine the scope,
ambit and correctness of the orders dated 25.11.2005 and 18.10.2007,
the learned Additional Solicitor General was directed to call upon
MoEF to produce the records of the case. Thereafter, it was felt that
after grant of the environmental clearance for a period of two years in
the order dated 25.11.2005, subject to submission of hydro geological
study of the area, when the subsequent order dated 18.10.2007 was
passed, we found that very many requirements of the Environment
Protection Act, the relevant Rules framed there under and the various
factors to be taken into account and a detailed public hearing to be
effected as stipulated in the last of the Notifications dated 14.09.2006,
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were not specifically addressed by the first respondent while passing
the order dated 18.10.2007. In other words, the order dated
18.10.2007 was a cryptic one without giving due regard to the various
salient features concerning the environment protection and the interest
of the public at large, while granting such clearance and allowing the
clearance granted earlier to be valid beyond the initial period of two
years and also without specifying as to the other terms and conditions
to be complied with. 11. In such circumstances, while on the one hand, appreciating the
observations made by the Division Bench in the impugned order which
we have highlighted in the earlier part of this order, we feel that the
first respondent should be directed to take a fresh look for the
continuation or otherwise of the environmental clearance granted by it
in the order dated 25.11.2005, after scrupulously following the various
relevant factors, such as notifying the State level Authority and other
Authorities concerned, effective public hearing after due paper
publication even while referring to the hydro geological report
submitted by the appellant and then pass final orders. In that
perspective we are convinced that the order dated 18.10.2007 is liable
to be set aside with necessary direction to the first respondent to look
into the application of the appellant afresh after the submission of the
hydro geological report and after giving an opportunity of hearing to
the appellant as well as the second respondent or such other bodies
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to whom such hearing is to be offered as per the subsequent
Notification dated 14.09.2006, permit them to file the required material
documents in support of their respective stand and pass a reasoned
order in accordance with the procedure prescribed under the said
Notification.
12. With that view, we set aside the order dated 18.10.2007, and
consequently the impugned order cannot also stand. We therefore,
direct the first respondent MoEF to proceed afresh, issue a notice of
hearing to the appellant, the second respondent, as well as, hold the
consultative process with the State Level Authorities and call for the
required reports from the concerned experts of its choice and after due
hearing, pass appropriate orders, in accordance with law. Such
exercise shall be carried out by the first respondent MoEF
expeditiously, preferably, within a period of three months from the date
of production of a copy of this order. It is needless to state that any
order that may be passed pursuant to this judgment will always be
subject to the decisions in Goa Foundation cases reported in (2014)
6 SCC 590 and (2014) 6 SCC 738 respectively. We make it clear that
we have not gone into the merits of the respective contentions of the
appellant or the respondents. The appeals stand disposed of with the
above directions. No costs. 13. Transfer Petition(C) No.1843/2013 has been filed by
Respondent-Shankar Raghunath Jog in the above appeals. He has
approached the National Green Tribunal in O.A. No.22/2012 as
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against the MoEF State Pollution Control Board and the Department of
Mines and Geology with the following prayer:
“1. Order or direction ordering the Respondent to close
down the mines in the State of Goa which do not have
valid EC following the Judgment in Shankar Jog versus
M/s Talaulicar and Sons Private Limited, with immediate
effect.
2. Order or direction ordering the Respondent to pay
compensation under section 15 of the National Green
Tribunal Act 2010 to the Environmental Relief Fund for
its failure to take timely action closing the violating
mines in the State of Goa which has lead to
environmental degradation.
3. Costs.”
14. In the body of the application, the Respondent-Shankar
Raghunath Jog has made reference to the environmental clearance
relating to the mining project of the appellant dated 25.11.2005 and
the subsequent order dated 18.10.2007 by which the conditional grant
of EC for two years came to be deleted. He also made reference to
the expiry of the EC itself and the grant which occurred on 25.11.2010
while praying for the above directions.
15. It is relevant to note that the appellant was not impleaded as a
party in the said O.A. No.22/2012. In the grounds of the said
application there was a general allegation against the official
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respondents including MoEF that inspite of the judgment impugned in
the civil appeal (viz) Public Interest Litigation Writ Petition No.6/2011
dated 12.08.2011 the official respondents failed to take any steps for
closing down the mines which violated the statutory provisions. In the
light of the present judgment and the directions which we have issued,
we are of the view that the O.A. No.22/2012 pending on the file of the
Green Tribunal will not survive inasmuch as Respondent-Shankar
Raghunath Jog mainly placed his prayer based on the impugned
judgment when he filed the O.A. before the Green Tribunal. Since we
have set aside the impugned judgment in these Appeals, the whole
basis of Respondent-Shankar Raghunath Jog’s grievance in the O.A.
filed before the Tribunal does not survive. Therefore, while allowing
the Transfer Petition and direct the O.A. No.22/2012 to be transferred
to this Court, the O.A. shall stand dismissed as having become
infructuous.
.….………………………………………..C.J.I [T.S. Thakur]
…..….………………………………………...J. [Fakkir Mohamed Ibrahim Kalifulla]
…..….………………………………………...J. [Uday Umesh Lalit]
New Delhi; July 12, 2016
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