REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

I.A. NOS. 1868, 2091, 2225-2227, 2380, 2568 and 2937

IN

WRIT PETITION (C) No. 202 OF 1995

Lafarge Umiam Mining Pvt. Ltd. … Applicant

T.N. Godavarman Thirumulpad … Petitioner(s)

       versus

Union of India & Ors. … Respondent(s)

J U D G M E N T

S. H. KAPADIA, CJI

Facts

1. Lafarge  Surma  Cement  Ltd.  (‘LSCL’  for  short)  is  a  

company incorporated under the laws of Bangladesh.  It has  

set  up  a  cross-border  cement  manufacturing  project  at  

Chhatak  in  Bangladesh,  which  inter-alia  has  a  captive  

limestone  mine of  100Ha located at  Phlangkaruh,  Nongtrai,  

East Khasi Hills District in the State of Meghalaya.  The mine

is  leased  out  in  favour  of  Lafarge  Umium Mining  Pvt.  Ltd.  

(‘LUMPL’ for short), which is an incorporated company under  

the Indian Companies Act, 1956 and which is a wholly owned  

subsidiary of LSCL.  The entire produce of the said mine is  

used for production of cement at the manufacturing plant at  

Chhatak,  Bangladesh  under  the  agreement/arrangement  

between Government of India and Government of Bangladesh.  

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  

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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  environment.   It  is  this  need  which  led  to  the  

enunciation  of  National  Forest  Policy  dated  7th December,  

1988.   The  principal  aim  of  the  Policy  was  to  ensure  

environmental stability and maintenance of ecological balance.  

The  derivation  of  direct  economic  benefit  was  to  be  

subordinate to the principal aim of the Policy (See para 2.2).  

Under  essentials  of  forest  management  it  is  stipulated  that  

existing forests and forest lands should be fully protected and  

their productivity improved.  It is further stipulated that forest  

cover should be increased rapidly on hill slopes, in catchment  

areas and ocean shores.  It is further stipulated that diversion  

of good and productive agricultural lands to forestry should be  

discouraged in view of the need for increased food production  

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(See para 3.2).  Under the Policy a strategy was prescribed vide  

para 4.  The goal is to have a minimum of one-third of the  

total land area under forest or tree cover.   In the hills and in  

mountains the aim is to maintain two-third of the area under  

forest  or  tree  cover  in  order  to  prevent  erosion  and  land  

degradation  and  to  ensure  the  stability  of  the  fragile  eco-

system.   Under  para  4.2.3,  village  and  community  lands,  

which  is  the  common  feature  in  north-east  regions,  not  

required  for  other  productive  uses,  should  be  taken  up for  

development  of  tree  crop  and  fodder  resources  and  the  

revenue generated through such programmes should belong to  

the panchayats where lands are vested in them and in other  

cases such revenues should be shared with local communities  

to  provide  an  incentive  to  them and  accordingly  land  laws  

should be so modified wherever necessary so as to facilitate  

and motivate  individuals  and institutions  to  undertake  tree  

farming.  Vide para 4.3.1, the Policy lays down that schemes  

and  projects  which  interfere  with  forests  that  cover  steep  

slopes, catchment of rivers, lakes and reservoirs, geologically  

unstable  terrain  and such other  ecologically  sensitive  areas  

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should  be  severely  restricted.   Tropical  rain/moist  forests,  

particularly in areas like Arunachal Pradesh, Kerala, Andaman  

& Nicobar Islands should be totally safeguarded.   No forest  

should  be  permitted  to  be  worked  without  the  government  

having approved the management plan in a prescribed form  

and in keeping with the National Forest Policy (See para 4.3.2).  

Under  para 4.3.4.2 the  rights  and concessions from forests  

should primarily be for the 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,  

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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  and  forests.   Projects  which  

involve  such  diversion  should  at  least  provide  in  their  

investment  budget,  funds  for  regeneration/compensatory  

afforestation.   Beneficiaries  who  are  allowed  mining  and  

quarrying in forest lands and in lands covered by trees should  

be required to re-vegetate the area in accordance with forestry  

practices and, therefore, by para 4.4.2 it is stipulated that no  

mining  lease  shall  be  granted  without  a  proper  mine  

management plan.  Under para 4.5 it is stipulated that forest  

management should take special care for wildlife conservation  

and  consequently  forest  management  plans  should  include  

prescriptions for that purpose.  Under para 4.6 of the Policy it  

is stipulated that a primary task of all agencies responsible for  

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forest  management  shall  be  to  associate  the  tribals  and  

communities  living  in  such  areas  in  the  protection,  

regeneration  and  re-development  of  forests  as  wells  as   to  

provide gainful employment to people living in and around the  

forest.   

3. On  27.1.1994,  in  exercise  of  the  powers  conferred  by  

Section 3(1) read with clause (v) of sub-Section (2) of Section 3  

of the Environment (Protection) Act, 1986 (for short “the 1986  

Act”) read with Rule 5(3)(d) of Environment (Protection) Rules,  

1986 the  Central  Government  issued Environmental  Impact  

Assessment Notification whereby it directs that on and from  

the date of publication of the said Notification in the official  

gazette expansion or modernization of any activity or a new  

project listed in Schedule-I shall not  be undertaken in India  

unless it has been accorded environmental clearance by the  

Central  Government  in  accordance  with  the  procedure  

specified in the Notification.  Under clause (2)(I)  any person  

who desires to undertake any new project listed in Schedule-I  

shall  submit  an  application  to  MoEF,  New  Delhi  in  the  

proforma  specified  in  Schedule-II  to  be  accompanied  by  a  

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project  report  which  shall  include  EIA  report/environment  

management plan prepared in accordance with the guidelines  

issued by MoEF.  Under clause 2(II) in case of mining as a site  

specific  project  the project  authority  (project  proponent)  will  

intimate  the  location  of  the  project  site  to  the  MoEF while  

initiating any investigation and survey.  The MoEF will convey  

its decision regarding suitability of the proposed site within a  

specified period.   Thus,  site  clearance  will  be  granted for  a  

sanctioned  capacity  and  shall  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  

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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 pubic shall be provided access, subject to public interest,  

to the summary of the EIA report/environment management  

plan.  The clearance granted shall be valid for five years for  

commencement of the construction or operation of the plant.  

The monitoring of the implementation of the recommendations  

and  conditions  of  IAA  is  also  provided  for  in  the  said  

notification vide clause IV.

4. The  said  notification  dated  27.1.1994  stood  slightly  

amended  by  notification  dated  10.4.1997.   By  the  said  

notification  detailed  procedure  for  public  hearing  has  been  

prescribed.  It also prescribes composition of public hearing  

panels.

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5. On 1.9.1997 LMMPL made  an application  for  granting  

environmental  clearance  for  limestone  mining  project  at  

Nongtrai,  East  Khasi  Hills  District,  Meghalaya.   The  

application was made under EIA Notification,  1994.  It  was  

made in the  form prescribed by the  Notification,  1994.   20  

copies of Rapid EIA Report (NEHU Report) were also annexed  

therewith.   However,  the  said  proposal  dated 1.9.1997 was  

returned by MoEF vide letter dated 24.10.1997.  The reason  

being that on 10.4.1997, as stated hereinabove, the MoEF had  

amended the EIA Notification of 1994 making public hearing  

mandatory for the development projects listed in Schedule-I of  

the  Notification.   By  reason  of  the  said  Notification  dated  

10.4.1997  the  then  project  proponent  (M/s.  LMMPL)  was  

asked  to  seek  Site  Clearance  as  well  as  Project  Clearance  

separately.   The  Site  Clearance  proposal  was  called  for  

through  the  State  level  agency  dealing  with  the  mines.  

Accordingly,  by  application  dated  23.9.1998  M/s.  LMMPL  

applied  for  Site  Clearance  for  Limestone  Mining  Project  at  

Nongtrai  village,  East  Khasi  Hills  District,  Meghalaya.   This  

application was made in the prescribed form.  The application  

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indicates that there exists an approach/access road to the site  

that is described as Shillong-Mawsynram-Nongtrai or Shillong-

Cherrapunjee-Shella-Nongtrai.  The application further states  

that all villages represent tribal population.  The application  

further  indicates  that  there  exists  many  private  limestone  

quarries in the area.  It is further stated in the application that  

the topography of the area is hilly.  Against the column ‘Forest  

Land Involved in the Project’ the answer given by the project  

proponent was “Nil”.     According to the application the site is  

not a habitat/corridor for endangered/rare/endemic species.  

The  source  of  this  information  was  the  NEHU  Report.  

According  to  the  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  

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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  Autonomous  District  Council,  Shillong  which  

council  is  the constitutional authority under Sixth Schedule  

of  the  Constitution.   By  the  said  certificate  the  council  

specifically stated that it had no objection for mining operation  

in  the  area  at  Nongtrai  village  since  the  area  does  not  fall  

within a forest land.  This application for site clearance was  

allowed by MoEF vide letter dated 18.6.1999 addressed to the  

Project Proponent.  Site clearance was, thus, granted under  

the 1994 Notification as amended on 4.5.1994 and 10.4.1997  

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subject  to  strict  compliance  of  terms  and  conditions  

mentioned therein.  One of the conditions was that the Project  

Proponent  shall  obtain  environmental  clearance  for  the  

proposed limestone mine as per the procedure laid down in  

the 1994 Notification before taking up developmental work at  

the site.  The said clearance was not to be construed as grant  

of  mining permission.   No developmental  activity relating to  

the  project  was  to  start  prior  to  environmental  clearance.  

Accordingly,  on 17.4.2000,  LMMPL made an application  for  

environmental  clearance  to  MoEF in the  prescribed form to  

excavate  2.0 million tonnes per annum of  limestone and to  

transport  the  same to  Chhatak in  Bangladesh through belt  

conveyor  (7.2 km long within Indian territory).   The mining  

lease area was indicated to be 100 hectare.  The description of  

land was shown as “barren”.  In the application, it was further  

stated that there is no notified forest land within 25 kms. from  

the proposed mine.  Along with the application vide Annexure  

A, copy of No Objection Certificate (NOC) for mining operations  

at  the  proposed site  dated  27.8.1997 stood annexed.   That  

certificate  was  issued  by  Khasi  Hills  Autonomous  District  

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Council, Shillong, which, as stated above, inter alia states that  

the Council has no objection for mining operations at Nongtrai  

Village since the area of 100 hectare does not fall within forest  

land.  Similarly, vide letter dated 6.7.1997 issued by Village  

Durbar,  NOC  was  granted  for  withdrawal  of  water  for  the  

project.   Vide  Annexure  G  to  the  application,  consent  to  

establish  the  project  stood  issued  by  Meghalaya  Pollution  

Control Board.  By Annexure H to the application, minutes of  

Environmental  Public  Hearing  of  the  project  has  been  

annexed.   These  minutes  indicates  the  presence  of  Addl.  

Deputy  Commissioner,  East  Khasi  Hills  District,  various  

government  officials  including  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  

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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  NOCs  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 Umium river valley.  It is approachable from Shillong  

via Mawsynram and Nongtrai villages by motorable road.  It is  

also  accessible  from  Shillong  by  road  via  Cherrapunji.  

According to the report the site is at the Phalngkaruh which  

originates  from  the  foot  hills  of  the  proposed  mine  site.  

According to the said report the site is on uneven terrain with  

a rugged topography.  There are heaps of fractured rocks all  

over  the  place.   It  is  a  rocky  region.   The  site  rejects  any  

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possibility  of  natural  growth of  forest.   It  is  an area of  low  

botanical and floral diversity.  It is an area covered with rocks.  

The area can be termed as a wasteland.   

6. On receipt of the application for environmental clearance,  

certain queries were raised by MoEF with regard to the scope  

of the site clearance (the original site  clearance was for 0.8  

million tonnes whereas subsequently that capacity was revised  

to  2  million  tonnes);  that,  as  per  this  Court’s  order  dated  

12.12.1996,  “forests”  has  to  be  understood  in  terms of  the  

dictionary meaning and, accordingly, a certificate was asked  

for in that regard from local DFO; the effect due to disposal of  

waste water through soak pit and whether the existing road  

width was sufficient to carry on heavy equipments for mining  

purposes.  These were some of the queries/ objections on the  

basis  of  which  clarification  was  sought  vide  letter  dated  

1.5.2000  by  MoEF  with  regard  to  environmental  clearance  

under  the  1994  notification.   As  requested  by  MoEF,  the  

project  proponent  vide  letter  dated  11.5.2000 requested the  

local DFO to issue necessary certificate as called for by MoEF  

in  terms  of  the  order  of  this  Court  dated  12.12.1996.  

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Accordingly, on 13.6.2000, the DFO forwarded the certificate  

to the project proponent in respect of Limestone Mining Project  

at Nongtrai, East Khasi Hills District, Meghalaya by which it  

was certified that the mining site was not a forest area as per  

this Court’s Order dated 12.12.1996 and nor did it fall under  

any of the notified reserved or protected forests.  Moreover, the  

certificate  once  again  reiterated  that  the  site  area  stood  

covered  with  Karst  topography  which  supported  only  a  

sporadic growth of a few tree shrubs.  Despite such certificate  

of DFO, MoEF in continuation of their letter dated 1.5.2000  

called  for  additional  information  inter  alia  including  list  of  

flora  and  fauna  in  compliance  of  Wildlife  (Protection)  Act,  

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,  

17

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 situated in the southern slopes  

of  the  Central  Plateau  of  Meghalaya;  that,  the  core  area  

comprising of the mining site consisted of uneven terrain with  

a rugged Karst topography (see page 484 of Volume III); the  

minutes of the environmental public hearing dated 3.6.1998  

were also annexed; site clearance dated 18.6.1999 granted by  

MoEF was also annexed;  that,  a  report  regarding impact  of  

limestone mining on Nongtrai, Meghalaya on Siltation Process  

18

prepared by Center for Study of Man and Environment dated  

April, 2000 also stood annexed to the clarifications given by  

LMMPL.   We  need  to  comment  on  that  report.   Firstly,  it  

indicates that the mining site is located on the southern fringe  

of the Meghalaya Plateau adjoining the plains of Bangladesh  

having a rich endowment of high grade limestone.  Secondly, it  

highlights  that  the  site  is  approachable  from Shillong  (109  

km.)  by  motorable  road  via  Mawsynram  and  Nongtrai.  

Thirdly,  it  states  that  on  account  of  dissolution  of  the  

limestone, Karst topography has resulted which topography is  

characterized by caverns and caves which are so prominent  

that  even in 1:50,000 toposheet,  they  could  be plotted.   In  

other  words,  the  karst  features  are  intimately  tied  up  with  

hydrological  situation.   Certain recommendations have been  

made in the report with regard to possible impact of limestone  

mining  on  the  Phalangkaruh  river  system.   Despite  

clarification, MoEF once again examined the matter through  

Expert  Committee  which  held  its  meeting  on  19th and  20th  

October, 2000 in New Delhi under the aegis of MoEF.  In the  

meeting, the project proponent made a presentation on their  

19

proposal  for  production  of  limestone  at  the  rate  of  30,000  

tonnes per annum for five years.  Certain queries were raised  

by the Expert  Committee  on the basis  of  which once  again  

further  clarification  was sought  by MoEF from LMMPL vide  

letter dated 6.11.2000.  According to the query, the area in  

question  supports  diversity  of  plants  and  animals.   It  also  

represents  the  remnants  of  the  rapidly  vanishing  humid  

rainforest.  That, the area is a home of endemic insectivorous  

plants, butterflies; All this, according to MoEF, would require  

a detailed survey of plants and animals to be carried out with  

the  help  of  BSI  and  ZSI  offices  located  in  Shillong.  

Accordingly,  the  project  proponent  submitted  report  on  

Ecological Status Survey prepared by Centre for Environment  

and Development;  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  

20

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 29.8.2001.  Accordingly, a  

transfer deed stood executed on 28.2.2002 in the prescribed  

form  under  Rule  37-A  of  Mineral  Concession  Rules,  1960.  

Accordingly,  on  30.7.2002,  environmental  clearance  which  

was earlier granted to LMMPL stood transferred to LUMPL by  

MoEF.

21

7. However,  vide  letter  dated  1.6.2006,  from  Chief  

Conservator of Forests (C), Shri Khazan Singh, addressed to  

MoEF it was pointed out that he had visited Limestone Mining  

Project  of  M/s. Lafarge when it  was found that project  had  

completed developmental works and opening of mine benches  

had also been accomplished for 7Ha of the mining lease land.  

According to the said letter the mining lease area around the  

developed mine benches  stood surrounded by thick natural  

vegetation cover with sizeable number of tall trees.  The said  

vegetation  included  trees  being  cleared  for  developing  the  

mining benches.  That the wood obtained from felling of trees  

was collected by the lessor who were from Nongtrai  Village.  

According to the said letter, for such clearance no permission  

was taken under Forest (Conservation) Act, 1980 (for short the  

‘1980 Act’).  Further, even the Rapid EIA report submitted by  

the project proponent described the land as wasteland though  

the  visit  of  the  Chief  Conservator  found it  to  be  otherwise.  

Consequently,  by  the  said  letter  the  Chief  Conservator  of  

Forests (C) informed the MoEF that the project proponent may  

be directed to obtain forest clearance under the 1980 Act and  

22

not to proceed with the mining activities till such clearance.  A  

copy of the said letter was also sent to the project proponent.  

By letter dated 11.8.2006, the project proponent replied to the  

Chief Conservator of Forests (C) stating that it had proceeded  

with  the  developmental  work on the  basis  of  the  certificate  

given by DFO dated 13.6.2000 under which it  was certified  

that the project area was not a forest area and it did not fall in  

any of the notified reserved or protected forests. It was further  

clarified  that  in  the  core  area  there  were  only  a  few trees,  

shrubs growing in some soil trapped in the crevices and only  

those  shrubs  and  trees  which  are  growing  in  the  area  

demarcated on the excavation plan have been cut.  According  

to the said letter the 1980 Act was not applicable as there was  

no  diversion  of  forest  land  for  non-forestry  purposes.  

Accordingly, a letter was addressed by MoEF on 15.11.2006 to  

M/s. LMMPL.  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.  

23

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  Act;  that  the  area  is  a  

natural/virgin forest; that the land belonged to village Durbar  

of  Nongtrai  and  in  the  circumstances  forest  clearance  was  

required to be obtained under the provisions of 1980 Act in  

terms of the order of the Supreme Court dated 12.12.1996.  

24

According to the said letter, there was a clear violation of the  

1980 Act.   Accordingly,  the  Chief  Conservator  of  Forests(C)  

Shri B.N. Jha requested the Government of Meghalaya to stop  

fresh clearance of  vegetation,  breaking of  land, extension of  

mining  area,  removal  of  felled  trees  and  stoppage  of  non-

forestry activities with immediate effect.  A copy of the said  

letter was also forwarded to MoEF.  By letter dated 17.4.2007  

addressed by MoEF to Government of Meghalaya a report was  

asked for indicating justification for continuance of mining by  

the project proponent within a week failing which MoEF had  

no option but to direct mine closure.  Thereafter response was  

given by M/s. Lafarge vide letter dated 25.4.2007.  However,  

MoEF, vide letter dated 30.4.2007, directed complete closure  

of  all  on  going  non-forestry  activities  by  M/s.  Lafarge  in  

compliance  of  the  directions  of  the  Supreme  Court  dated  

12.12.1996.   Suffice  it  to  state  without  going  into  further  

correspondence that M/s. Lafarge submitted its application for  

forest  clearance  under  the  1980  Act  vide  application  dated  

3.5.2007.  The application makes it clear that permission is  

sought for forest clearance without prejudice to the rights and  

25

contentions of the project proponent.  After reciting the above  

facts,  M/s.  Lafarge submitted that the  project  was a cross-

border  project;  that  it  had  put  in  ten  years  of  efforts  for  

obtaining  approvals;  that  had  the  reservation  on  the  legal  

status of the land and the use of the mine site as forest land  

been made clear by Chief Conservator of Forests (C) and had  

such reservation been conveyed to M/s. Lafarge earlier or even  

at the time of consideration of the proposal for environmental  

clearance,  they  (project  proponent)  would  have  sought  

approval under the 1980 Act before implementing the mining  

project.  It was pointed out that the mining lease area was 100  

Ha.  At the time of making the application for forest clearance  

the broken up area was 21.44 Ha.  In the said application  

M/s.  Lafarge  undertook  to  bear  the  cost  of  raising  and  

maintenance  of  compensatory  afforestation.   They  also  

undertook to fulfill all other conditions 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  

26

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. Lafarge to the MoEF (North-East  

Region), the regional office of the MoEF, was informed that the  

project proponent had already applied for forest clearance to  

the MoEF, New Delhi.

27

8. On  6.9.2007  CEC  submitted  its  report  to  this  Court  

saying  that  the  project  proponent  should  have  taken  

permission under the 1980 Act before starting operations in  

the area.  According to CEC this was a typical case where ex-

post  facto  approval  under  the  1980 Act  is  sought  after  the  

mine has been allowed to operate illegally.  Since fait accompli  

situation arose according to CEC there was no option but to  

recommend the  case  for  grant  of  permission  for  the  use  of  

forest  land  for  mining  lease,  conveyor  belt  system  and  

associated activities  subject  to certain conditions mentioned  

therein.  By interim order dated 5.2.2010 M/s. Lafarge was  

directed to stop all  mining activities.   On 5.4.2010 a report  

was submitted by Shri B.N. Jha, Regional Chief Conservator of  

Forests (C)  [also known as High Powered Committee (HPC)].  

The  report  was  submitted  pursuant  to  the  site  inspection  

carried  out  by  a  High  Level  Committee  which  also  had  

interaction with local population and institutions in the first  

week of April, 2010.  Briefly, it may be stated that the report  

indicates assessment of the impact of the mining done by the  

project  proponent  up  to  April  2010  on  forest,  wildlife  and  

28

surroundings.  The report indicates details of the area already  

broken up.  On the impact aspect the report states that the  

total clearing involves felling of 9345 trees out of which 1200  

trees  have  already  been  felled.   That,  although  the  area  

supports rich flora, the same can be re-forested as a part of  

reclamation plan.  According to the report, the said impact can  

be  minimized  after  a  thorough  study  of  Bio-Diversity  

Management Plan as well as Catchment Area Treatment Plan  

is prepared and executed in a time bound manner.   At the  

same time the report  states that the project  is  positive and  

beneficial  to  the  residents  of  Nongtrai  village  due  to  huge  

amount  of  cash  going  to  village  Durbar  and  reaching  the  

individual  household  improving  the  financial  health  of  the  

population of two villages, i.e., Nongtrai and Shella.  According  

to the report, interaction took place between the High Powered  

Committee constituted by MoEF and the locals.  That villagers  

of Shella are not having any problems from M/s. Lafarge and  

that  the people are very satisfied with the  mining company  

which  has  provided  health  care  facilities,  drinking  water  

facilities, employment, schools etc.  According to the report,  

29

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  

favour  of  M/s.  Lafarge  wherein  prior  approval  of  Central  

Government  was  sought.   The  said  proposal  of  the  State  

Government  was  examined  by  FAC  constituted  by  Central  

30

Government under Section 3 of the 1980 Act.   Thus, forest  

clearance was granted by MoEF vide letter  dated 22.4.2010  

which again stipulated further conditions to be complied with  

by the project proponent.  Accordingly on 26.4.2010 learned  

AGI  submitted  before  this  Court  that  M/s.  Lafarge  may  be  

permitted  to  resume  the  mining  operations  subject  to  

compliance of conditions enumerated in the order passed by  

MoEF on 22.4.2010.  However, this Court ordered that before  

it grants permission to resume the mining operations it was  

imperative that plans should be drawn up and relevant reports  

be  placed  before  this  Court  based  on  a  comprehensive  

engineering and biological study including assessment of flora  

and fauna.  A study report was submitted by NEHU on June,  

2010 in which it has been stated that the forests in the said  

area can be categorized into tropical moist-deciduous forest,  

tropical  semi-evergreen  forest,  savanna,  subtropical  

broadleaved forest,  forest  gardens,  orchards etc.   Regarding  

the  core  area,  the  report  states  that  the  broken  up  area  

(already mined) was 38.089 Ha; that the said area was devoid  

of any vegetation and could be characterized by limestone floor  

31

and benches.  However, the vegetation in the rest of the core  

area (i.e. proposed mining area) had tropical-moist deciduous  

type  of  vegetation  with  variable  canopy  cover  and  mostly  

sparse.  It further states that the density of plants is very low  

due to rocky terrain and low soil content.  It further states that  

only a few trees described in that paragraph are present in the  

undisturbed core zone.  On compliance of various conditions  

imposed  by  MoEF  including  payment  of  compensatory  

afforestation, penal compensatory afforestation and NPV with  

interest as well as the reports submitted by various authorities  

were  placed  before  the  Expert  Appraisal  Committee  on  

29.6.2010 and 21.7.2010 pursuant  to  the  directions  of  the  

Supreme Court vide order dated 26.4.2010.  According to the  

minutes  of  Expert  Appraisal  Committee,  the  conditions  and  

environmental safeguards stipulated by MoEF while according  

environmental  clearance  on  9.8.2001  and  19.4.2010  were  

comprehensive enough to mitigate any adverse impacts of the  

project  and  to  protect  the  environment  if  implemented  

effectively.  The minutes of the meeting of the Expert Appraisal  

Committee dated 21.7.2010 also recites that various reports  

32

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 land and /or statutory  

33

regime applicable to such projects, no permission should be  

granted specially to private projects established only for profit  

where  the  project  presents  a  ‘fait  accompli’.   The  learned  

Amicus submitted that over the years we find commencement  

of  projects  without  obtaining  prior  permission  as  mandated  

under  Section  2  of  the  1980  Act  and,  when  detected,  the  

project proponent(s) falls back on the plea of ‘fait accompli’.  

According to the learned Amicus, time has, therefore, come for  

this  Court  not  to  regularize  such  projects  which  are  

commenced  without  obtaining  prior  permission  under  the  

1980 Act except in cases of absolute candor and where the  

want of permission is solely and entirely based on account of  

bona fide doubt as to the nature and character of the land  

and/  or  the  statutory  regime  applicable  to  such  projects.  

According  to  the  learned  Amicus,  barring  the  above  

exceptions, this Court should direct removal of the project and  

restoration of  the  environment  wherever it  is  possible  or  to  

take  over  the  project  to  ensure  that  all  gains  from  such  

projects are allowed to be used only for those whose rights  

have  been  violated.   In  support  of  his  above  submissions,  

34

learned  Amicus  placed  reliance  on  the  report  of  Chief  

Conservator  of  Forests  (C)  dated 1.6.2006 addressed to  the  

MoEF  in  which  it  was  stated  that  the  mining  lease  area  

around the developed benches has been found surrounded by  

thick  natural  vegetation  cover  with  sizeable  number  of  tall  

trees; that, the said vegetation including the trees was being  

cleared  for  developing  the  mine  benches;  that,  the  wood  

obtained from felling of trees was being collected by Nongtrai  

Village  Durbar;  and  that,  the  said  report  of  the  Chief  

Conservator  of  Forests  (C)  dated  1.6.2006  contradicts  the  

Rapid EIA report  submitted by the project  proponent which  

describes the  land in question as waste  land.   The learned  

Amicus  also  relied  upon  the  second  report  dated  9.4.2007  

again by the Chief Conservator of Forests (C) based on his site  

visit on 7.4.2007 in which report it has been stated that the  

mining  lease  lies  in  the  midst  of  virgin  and natural  forest.  

According  to  the  said  report,  the  said  mine  in  question  is  

operating on forest land without clearance under the 1980 Act.  

According to the said report,  calling the area / site  by any  

other name than a forest would be travesty which could only  

35

be 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 or protected  

36

forests.  In the said certificate, it has been further stated that  

the project site is on Karst topography which supports only a  

sporadic growth of a few trees shrubs and creepers.  Besides  

the said certificate dated 13.6.2000, the project proponent also  

seeks  to  place  reliance  on  letters  dated  28.4.1997  and  

27.8.1997  addressed  by  Khasi  Hills  Autonomous  District  

Council which took the view that the area is a non-forest land.  

According to the learned Amicus, it is not open to the project  

proponent to rely upon the certificate of DFO dated 13.6.2000  

as the said certificate was given without any intimation to the  

higher authorities and that an inquiry has been instituted to  

determine  the  circumstances  in  which  the  certificate  was  

issued by DFO.  Learned Amicus further pointed out that the  

prospecting licence held by the project proponent was allowed  

to be converted into a mining licence in 1997 which was after  

the order of the Supreme Court dated 12.12.1996.  That apart,  

there is a special law in the State of Meghalaya, i.e. The United  

Khasi-Jaintia  Hills  Autonomous  District  (Management  and  

Control  of  Forests)  Act,  1985  under  which  forest  has  been  

defined to mean an area in which there are twenty five trees  

37

per acre.  Thus, according to the learned Amicus by all these  

definitions the area in question is a forest.  Thus, according to  

the learned Amicus even if  the project  proponent ultimately  

succeeded in getting forest clearance under Section 2 of the  

1980 Act on 22.4.2010 since the said project stood established  

originally in the forest area in a brazen violation of the 1980  

Act such a project cannot be allowed to be regularized by grant  

of permission ex-post facto dated 22.4.2010.   

10. Shri Shyam Divan, learned senior counsel appearing on  

behalf  of  Shella  Action Committee  (SAC)  while  adopting the  

submissions of the learned Amicus Curiae with regard to the  

project  being  illegal,  submitted  that  having  regard  to  para  

4.3.1 of the National Forest Policy, 1988, tropical rain/moist  

forest are required to be totally safeguarded.  According to SAC  

the forest in the region is a tropical moist forest and no forest  

clearance ought to have been granted because of the ecological  

significance recognized by the 1988 Policy.  According to SAC  

this fact was known to M/s. Lafarge at all material times as  

can be seen from the Rapid EIA Report  prepared by NEHU  

which specifically states that the vegetation at the study site is  

38

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 clearance dated 19.04.2010 granted by  

39

MoEF as also Stage-I forest clearance dated 22.04.2010 issued  

by MoEF.

11. According to the learned counsel, M/s. Lafarge was duty  

bound to make an honest disclosure of all facts when seeking  

environmental  and  forest  clearances  as  it  is  an  express  

requirement  under  Clause  4  of  the  EIA  notification  1994.  

That, where a false information, false data, engineered reports  

are submitted or factual data is concealed, the application is  

liable  to  be  rejected,  and  where  granted,  it  is  liable  to  be  

revoked.  According to SAC, M/s. Lafarge had given an express  

undertaking  in  its  application  for  environmental  clearance  

dated 17.4.2000 that if any part of the information submitted  

was found to be false or misleading the project clearance could  

be revoked at M/s Lafarge’s risk and cost.  According to SAC,  

the region where the mining is taking place and with regard to  

which  permissions  were  obtained  is  governed  by  a  specific  

local Act and Rules framed thereunder, namely, United Khasi  

Jaintia Hills Autonomous District (Management and Control of  

Forests)  Act,  1958  which  Act  was  enacted  by  the  District  

Council of the United Khasi Jaintia Hills Autonomous District  

40

in  exercise  of  its  powers  under  the  Sixth  Schedule  to  the  

Constitution of India.  According to the learned counsel, the  

1958  Act  classifies  forests  and  regulates  forest  resource  

management and use and applying the definition of  “forest”  

under Section 2(f), the region where the mining is taking place  

is a forest as the said area has not less than 25 trees per acre.  

Thus, according to the learned counsel for SAC, it ought to be  

assumed that the officials of M/s. Lafarge had full knowledge  

of the local law as well as the forest cover and the lay out of  

the land.  From every perspective, M/s. Lafarge could not have  

commenced  the  project  without  a  detailed  survey  of  the  

physical topography of the land and the forest cover.  Thus,  

M/s. Lafarge had knowledge of the forest cover in the region  

and yet it falsely withheld this information from the concerned  

authorities including the MoEF.  In this connection, learned  

counsel  placed reliance on the NEHU Report of 1997, letter  

dated 1.6.2006 from the Chief  Conservator of Forests (C) to  

the MoEF, letter dated 9.4.2007 from the Chief Conservator of  

Forests (C) to the Government of Meghalaya and assessment of  

floral diversity prepared by NEHU in June, 2010.  According to  

41

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 basis of false representations made  

42

by  M/s.  Lafarge  regarding  absence  of  forests;  engineered  

reports  projecting  the  site  as  “a  near  wasteland”;  and  the  

concealment  of  factual  data  available  with  M/s.  Lafarge  

including the 1997 NEHU Report  which showed the subject  

land as forest land.  Thus, according to the learned counsel,  

the MoEF ought to revoke the environmental clearance dated  

9.8.2001 having regard to Para 4 of the EIA Notification 1994  

and inasmuch as the MoEF has failed and neglected to revoke  

the clearance dated 9.8.2001, this Court may quash the said  

clearance.   According  to  the  learned  counsel,  the  

environmental  clearance  dated  9.8.2001  is  the  parent  

clearance  and,  consequently,  the  revised  environmental  

clearance  dated  19.10.2010  (the  correct  date  is  19.4.2010)  

must automatically fall if the parent clearance is quashed.  In  

any  event,  the  learned  counsel  submitted  that  the  revised  

clearance  is  liable  to  be  set  aside  since  the  mandatory  

procedure of conducting a public consultation had not taken  

place.  According to the learned counsel, a public consultation  

is mandatory in terms of para 7 of the EIA Notification dated  

14.9.2006.   Such  consultation  has  not  taken  place.   The  

43

public hearing held on 3.6.1998 was without a disclosure of  

the forest and, hence, there has been no public consultation in  

accordance  with  para  7  of  the  EIA  Notification  dated  

14.9.2006.   Thus,  according  to  the  learned  counsel,  the  

revised environmental  clearance dated 19.4.2010 is liable to  

be  quashed  on  the  ground  of  non-compliance  of  the  

mandatory  provisions  of  the  EIA  Notification  of  2006.  

According  to  the  learned  counsel,  consequently,  the  stage-I  

forest clearance dated 22.4.2010 is also liable to be rejected.  

It  may  be  noted  that  the  stage-I  forest  clearance  dated  

22.4.2010 has been granted by FAC of MoEF.  The learned  

counsel  submits  that  under  National  Forest  Policy,  1988  

tropical  rain/  moist  forest  is  required  to  be  totally  

safeguarded.   That,  it  is  a  no-go  area.   According  to  the  

learned counsel, since the region where mining is taking place  

falls within tropical rain/ moist forest, FAC ought not to have  

given  the  clearance  on  22.4.2010.   For  the  afore-stated  

reasons,  it  is  the  case of  SAC that  both on account of  the  

nature  of  the  land  in  question  and  the  conduct  of  M/s.  

Lafarge, this Court should dismiss the IA No. 1868 of 2007  

44

filed by M/s. Lafarge and that the IA No. 2937 of 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  

45

absence of forest.  According to the learned Attorney General  

at each stage MoEF had raised queries and requisitions and  

after  a  thorough  probe  MoEF  gave  ultimately  Environment  

Clearance  on  19.4.2010  and  22.4.2010  being  the  Forest  

Clearance.   In this regard it  was pointed out by MoEF vide  

letter  dated  24.10.1997 that  the  EIA  Notification  1994  was  

amended on 10.4.1997 making public hearing mandatory for  

the  development  projects  listed  in  Schedule-I  of  the  

Notification.   Consequently,  the proposal  required two stage  

clearance, namely, site as well as project clearance.  This is  

the  reason why the  project  proponent  made  Site  Clearance  

application on 23.9.1998.  Before that the project proponent  

approached the Meghalaya State Pollution Control Board for  

consent  to  establish  limestone  mining  project.   Similarly,  a  

public  hearing  notice  was  given  on  27.4.1998.   The  public  

hearing was conducted on 3.6.1998.  This was followed by Site  

Clearance Application dated 23.9.1998.  All these steps were  

taken by M/s. LMMPL, the predecessor of M/s. Lafarge.  Even  

before  granting of  the Site  Clearance on 18.6.1999,  a letter  

dated  8.4.1999  was  received  from  M/s.  LMMPL  sending  a  

46

certificate  dated  20.3.1999  from DFO,  Khasi  Hills  Division,  

Shillong indicating absence of forest.  Thus, at the stage of Site  

Clearance  MoEF  had  two  certificates  before  it,  one  dated  

27.8.1997  issued  by  the  Executive  Committee,  Khasi  Hills  

Autonomous  District  Council  and  the  other  being  the  

certificate  dated  20.3.1999  issued  by  DFO,  both  indicating  

absence of forest.  To the same effect is the main application  

for Environmental Clearance dated 17.4.2000.  One more fact  

needs  to  be  mentioned.   Along  with  the  application  for  

Environmental  Clearance  dated  17.4.2000,  an  EIA  Report  

prepared by Environmental Resources Management India Pvt.  

Ltd. giving a detailed description of the topography of the area  

was forwarded to MoEF.  It was called as Karst Topography.  

In that Report it was categorically stated that the project area  

did not fall in the designated forest land; that the terrain at  

the  site  was  described  as  Karst  Topography  which  did  not  

allow normal plant growth.  Despite clarification, MoEF wrote  

a  letter  dated  1.5.2000  to  the  project  proponent  seeking  

further clarification as to whether there existed forest in terms  

of  the  Supreme  Court  order  dated  12.12.1996  and  if  so  a  

47

certificate  to  that  extent  should  be  obtained from the  local  

DFO.  In reply, M/s. LMMPL 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  

48

Director ZSI).  The said Report of January, 2001 extensively  

dealt with tropical semi-evergreen forest at different elevations.  

This  Report  of  Dr.  Ghosh  (Centre  for  Environment  and  

Development)  was  placed  before  the  Expert  Committee  on  

7.3.2001.  The minutes of the meeting indicate that a video  

film of the site was also shown.  The Report indicates the Karst  

features, extensive flora and fauna survey carried out by the  

Centre for Environment and Development in conjunction with  

the Botanical Survey of India and Zoological Survey of India.  

After  elaborate  discussion,  the  Expert  Committee  

recommended  Environmental  Clearance  of  the  project  once  

again  subject  to  certain  conditions.   Even  after  such  

recommendation,  the  MoEF  once  again  wrote  to  the  Chief  

Conservator  of  Forest,  Meghalaya.   This  was  on  19.4.2001  

regarding Environmental Clearance.  The Chief Conservator of  

Forest  (Wildlife  Division)  vide letter  dated 1.6.2001 gave his  

comments as per the annexures which was on the basis of  

Field  Verification  Report  submitted  by  DFO,  Khasi  Hills  

Wildlife Division, Shillong.  According to the Chief Conservator  

of Forest (Wildlife Division) the project area is sloppy, ending  

49

in  the  nearby  plains  of  Bangladesh  and  covered  wholly  by  

degraded forests and grassland vegetation.  Further, he stated  

that there is a motorable road used for traffic and the forest is  

farther away up the slope.  It was concluded that there was no  

likelihood  of  any  wildlife  presence  in  the  area.   Thus,  

according to the learned Attorney General it is incorrect to say  

that  the EIA clearance dated 9.8.2001 was granted without  

proper consideration.  There has been a detailed consideration  

at  every stage.   That,  at  the  time of  the  submission of  the  

application for Site Clearance dated 23.9.1998 there existed  

an  NOC of  the  Pollution  Control  Board,  a  certificate  dated  

27.8.1997  issued  by  East  Khasi  Hills  Autonomous  Council  

and thus it cannot be said that the EIA clearance indicated  

non-application of mind or that it was liable to be set aside on  

the ground that the EIA Division of the MoEF did not properly  

consider the matter.  In the circumstances, according to the  

learned  Attorney  General,  it  cannot  be  said  that  the  

Environmental Clearance dated 9.8.2001 came to be issued by  

MoEF arbitrarily, capriciously or whimsically.  At that stage of  

Environmental  Clearance  dated  9.8.2001  existence  of  the  

50

forest land was not established.  If it had been so established  

then  the  project  proponent  had  to  obtain  forest  clearance  

under 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  

51

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  covered  with  

degraded  forests  and  this  was  the  reason  why  the  Durbar  

preferred to lease out the site  to  LMMPL  for  mining.   Other  

factors  responsible  for  selecting  the  proposed  site  were  

availability  of  water resource,  away from human habitation,  

closer to the cement plant at Chhatak, easy accessibility by  

road and minimum damage to the rich biodiversity (see page  

19 of the NEHU Report).  The learned counsel submitted that  

Section 2 of the 1980 Act stipulates “prior approval”.  Thus,  

prior determination of what constituted forest land is required  

to be done.  This lacuna in the 1980 Act was supplied by the  

order of this Court dated 12.12.1996 which inter alia provided  

that every State Government shall first constitute an Expert  

Committee  within  one  month  and  based  on  its  

recommendations the State Government will identify the land  

as forest land on the criteria mentioned in the said Order.  The  

learned  counsel  also  invited  our  attention  to  Rule  4  of  the  

Forest (Conservation) Rules, 1981 in which it is stipulated that  

52

every State Government seeking prior approval under Section  

2  of  the  1980  Act  shall  send  its  proposal  to  the  Central  

Government  in  the  form  appended  to  the  Rules.   Thus,  

according  to  the  learned  counsel,  under  the  1980 Act  read  

with the Rules, the requirement of submission of the proposal  

for  forest  diversion  under  the  1980  Act  is  exclusively  the  

obligation of the State Government.  This was also spelt out in  

the  guidelines  issued  on  25.10.1992.   Later  on  the  

Government of India amended the said guidelines in respect of  

the diversion of forest lands for non-forest purpose under the  

1980  Act  by  letter  dated  25.11.1994  and  in  para  2.4  the  

concept of “User Agency” was introduced but that concept was  

made  applicable  only  to  cases  of  renewal  of  mining  leases.  

However,  on  10.1.2003,  Rule  4  of  the  1981  Rules  stood  

reframed  (as  Rule  6  of  the  2003  Rules)  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; after receiving the  

53

proposal  and  if  the  State  Government  is  satisfied  that  the  

proposal  required prior  approval  under Section 2,  it  had to  

send  the  said  proposal  to  the  Central  Government  in  the  

appropriate form within 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  

54

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 the  

State as non-forest land.  The Council was asked to inform/  

clarify whether the area in question under the mining lease fell  

on forest land as per the records of the District Council.  By  

letter  dated  28.4.1997,  the  Council  informed  the  State  

Government that the area in question did not fall  on forest  

lands.  Moreover, pursuant to the Order of this Court dated  

12.12.1996,  the  Chairperson  of  the  Expert  Committee  

appointed by the State of Meghalaya also filed the report of the  

Expert Committee in which it  was expressly stated that the  

mining lease granted by the State Government did not fall on  

the forest land.  Thus, it was under the above circumstances,  

having  regard to  the  order  of  this  Court  dated 12.12.1996,  

that the State Government was not required to and it did not  

submit any proposal to the Central Government under Section  

2 of the 1980 Act read with Rule 4 of the 1981 Rules as it  

treated the site in question as a non-forest land.  This position  

55

has  not  been  disputed  by  MoEF.   Thus,  according  to  the  

learned  counsel,  there  was  no  obligation  on  the  project  

proponent or on the State of Meghalaya to move MoEF under  

Section 2 of the 1980 Act.

14. According to the learned counsel, what has happened in  

the  present  case  is  that  almost  after  9  years  there  was  a  

change of view on the part of MoEF, i.e., between 1997 and  

2007.  Under this change of view of MoEF, the report of the  

Chairperson  of  the  Expert  Committee  of  the  State  of  

Meghalaya which report stood annexed to the affidavit dated  

3.5.1997 in this Court to the effect that the mining lease did  

not fall on forest land was given a go-by and an entirely new  

stand was taken only on and from 2006-07.  One more aspect  

has been highlighted by the learned counsel for M/s. Lafarge.  

On  1.6.2006,  the  Chief  Conservator  of  Forests  (C),  Shri  

Khazan Singh stated that he had visited the limestone mining  

project of M/s. Lafarge on 24.5.2006 when he found that the  

mining lease area is surrounded by thick natural vegetation  

cover  with  sizeable  number  of  tall  trees.   According  to  the  

Chief Conservator of Forests (C), the Rapid EIA Report (ERM  

56

India Pvt. Ltd.) submitted by the project proponent describes  

the land as waste land which was not a fact.  Thus, according  

to the Chief Conservator of Forests (C), the project proponent  

should be directed to obtain clearance under the 1980 Act and  

not to expand mining activities till such clearance 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  

57

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; along with the said letter there were several  

enclosures.  One of the enclosures was the NEHU Report, the  

other  was  NOC  from  Khasi  Hills  Autonomous  Council  for  

mining  operation  in  the  project  area.   This  letter  dated  

1.9.1997 was duly acknowledged by MoEF vide its letter dated  

24.10.1997.  As stated above, in view of the amendment to the  

Notification  of  1994,  the  project  proponent  was  advised  to  

make  a  new  proposal  in  two  different  parts,  namely,  site  

clearance and project clearance.  Pursuant to the said advice  

the project proponent preferred Site Clearance Application on  

23.9.1998  made  to  MoEF  in  which  once  again  the  project  

proponent enclosed maps which were verbatim reproduction of  

the  relevant  pages  (including  maps)  in  the  NEHU  Report.  

MoEF granted Site Clearance on 18.6.1999.  Further even the  

Mining Plan submitted by the project proponent contained a  

58

Chapter on Environment Management Plan (EMP) which is a  

verbatim copy of Chapter 6 of NEHU Report.  The said plan  

was  approved  by  Bureau  of  Mines.   Moreover,  in  the  

Sociological  and Ecological  Impact Assessment Report dated  

16.2.1998 prepared by ERM it has been expressly stated that  

Environmental  Impact  Assessment  was  carried  out  in  1997  

and it was submitted to MoEF in September, 1997.   To the  

same effect one finds reference in the Executive Summary of  

the EIA of proposed Limestone Mining of 9.4.1998 by ERM.  

According  to  the  learned  counsel  the  above  documents  

indicate  that  there  was  no  suppression  by  the  project  

proponent  from MoEF of  NEHU Report  of  1997  as  alleged.  

One  of  the  points  which  SAC  has  argued  before  us  was  

absence of public hearing as required under EIA Notification of  

1994.   On  this  aspect  Shri  Nariman,  learned  counsel  

appearing on behalf of M/s. Lafarge invited our attention to  

the  requisite  correspondence.   On  22.4.1998  a  Notification  

was  issued  by  Meghalaya  State  Pollution  Control  Board  of  

constituting  an  Environmental  Public  Hearing  Panel  to  

evaluate and assess the documents submitted by the project  

59

proponent and to verify the comments, views and suggestions  

made by the public on the proposed project.  This Notification  

was  issued  in  terms  of  the  EIA  Notification  of  1994,  as  

amended on 10.4.1997.  On 27.4.1998 a public  notice  was  

also issued by MPCB informing the general public about the  

limestone  project  of  M/s.  LMMPL.   On  5.5.1998  MPCB  

informed  two  local  newspapers  in  writing  asking  them  to  

publish  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.  

60

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 project site was not  

forest  land;  in  fact  the  consistent  view  of  all  authorities,  

including MoEF, was that the project site (mining lease area)  

was  not  located  on  “forest  land”.   In  this  connection  our  

attention was invited to the application dated 23.9.1998 made  

by M/s. LMMPL to MoEF for  Site  Clearance,  the NOC from  

KHADC dated 27.8.1997 stating that the project area does not  

fall within a forest land, grant of Site Clearance on 18.6.1999  

by  MoEF,  application  for  Environmental  Clearance  dated  

17.4.2000, grant of Environmental Clearance on 9.8.2001.  All  

these documents and series of letters exchanged during the  

relevant time, according to the learned counsel, indicate that  

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both  the  project  proponent  and  MoEF  were  at  all  relevant  

times  under  the  bona  fide  impression  that  the  project  site  

(mining lease area) was not located on forest land.

17. Learned counsel further submitted that after stop mining  

order dated 30.4.2007 and the direction of CCF(C) of even date  

to obtain Forest Clearance under Section 2 of the 1980 Act, an  

application was filed by M/s. Lafarge on 3.5.2010 to the State  

Government under Rule 6 of the Forest Conservation Rules,  

2003, as amended in 2004.   Accordingly,  on 11.5.2007 the  

Principal Chief Conservator of Forest, Meghalaya wrote to the  

Government of  Meghalaya agreeing with the views of the CCF  

(C) to the effect that M/s. Lafarge should obtain permission  

under the 1980 Act.  At the same time, as stated above, the  

PCCF made it clear that no fault lay on the door step of M/s.  

Lafarge for not seeking Forest Clearance earlier.  Accordingly,  

on  19.6.2007  a  formal  proposal  was  made  by  State  

Government on 19.6.2007 to MoEF for diversion of 116.589  

Ha of forest land for limestone and other ancillary activities in  

favour of M/s. Lafarge in Khasi Hills Division under Section 2  

of  the  1980  Act.  Thus,  all  necessary  steps  were  taken,  as  

62

indicated  hereinabove,  by  M/s.  Lafarge  which  ultimately  

culminated in  the  Environmental  Clearance  by  MoEF dated  

19.4.2010  and  Forest  Clearance  dated  22.4.2010.   In  the  

circumstances,  learned  counsel  submitted  that  I.A.  

1868/2007 preferred by M/s. Lafarge be allowed.

Issues

18(i) Nature of land;

(ii) Whether  ex  post  facto  environmental  and  forest  

clearances  dated  19.4.2010 and 22.4.2010 respectively  

stood  vitiated  by  alleged  suppression  by  M/s.  Lafarge  

regarding the nature of the land.  In this connection it  

was  contended  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

63

(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 Others [(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 or not, barring “No Go” areas (whose  

identification  would  again  depend  on  undertaking  of  due  

diligence exercise).  In such cases, the Margin of Appreciation  

Doctrine would apply.

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20. Making  these  choices  necessitates  decisions,  not  only  

about how risks should be regulated, how much protection is  

enough, and whether ends served by environmental protection  

could  be  pursued more  effectively  by  diverting  resources  to  

other uses.  Since the nature and degree of environmental risk  

posed  by  different  activities  varies,  the  implementation  of  

environmental  rights  and  duties  require  proper  decision  

making based on informed reasons about the ends which may  

ultimately  be  pursued,  as  much  as  about  the  means  for  

attaining  them.   Setting  the  standards  of  environmental  

protection involves mediating conflicting visions of what is of  

value in human life.

(b) Nature of the land

21. In  the  NEHU  Report  of  June,  1997  (Rapid  EIA  of  

Proposed Limestone Mining Project at Nongtrai, Meghalaya), a  

brief history of limestone mining in Khasi Hills of Meghalaya is  

spelt out.  It indicates that mining of limestone in Khasi Hills  

dates back to July 10, 1763 when an agreement was signed  

between East  India Company and the  Nawab of  Bengal  for  

preparation of chunam.  Regular trade of limestone from Khasi  

65

Hills of Bengal started on and from 1858.  Substantial revenue  

was earned by the British Government from these limestone  

quarries  as  rentals,  which  was  Rs.  23,000/-  in  1858  and  

which subsequently stood increased to Rs. 67,000/- in 1878.  

The  first  historical  account  of  exploitation  of  Nongtrai  

limestone dates back to 1885 when Don Rai of Shella obtained  

permits from the Wahadars (Head of Confederacy) of Shella to  

quarry  limestone  in  Nongtrai  village.   There  are  historical  

records about continuance of limestone trade between Khasi  

Hills  and  Bengal  up  to  1947.   The  business  declined  after  

partition.  Limestone mining and trade slipped into the hands  

of unorganized sector.  According to the NEHU Report of 1997,  

today  a  number  of  private  parties  quarry  limestone  using  

unscientific  methods  and  export  it  to  counterparts  in  

Bangladesh,  often  illegally.   These  private  parties  sell  the  

product  at  a  very  low  price.   This  aspect  is  also  being  

examined by CEC which has now filed its report in I.A. No.  

3063  of  2011.   One  more  aspect  needs  to  be  highlighted.  

According  to  the  State  of  Forest  Report,  2001,  the  North  

Eastern Hill State of Meghalaya is predominantly tribal with  

66

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.   As  stated  above,  the  limestone  bearing  area  

67

around Nongtrai  and Shella  falls  on the  southern  fringe  of  

Meghalaya plateau.  The site is approachable from Shillong via  

Mawsynram and Nongtrai villages by a motorable road.  The  

site is also accessible from Shillong by road via Cherrapunji.  

This road is wide enough for crushers and heavy machines to  

be brought from Shillong.  The site is on the uneven terrain  

with a rugged topography. (See Rapid EIA Report submitted by  

ERM India Pvt. Ltd. dated 6.4.2000).  According to the said  

report,  the  Karst  topography  of  the  area  supports  sporadic  

growth of a few tree shrubs.  According to the NEHU Report of  

1997,  the  site  selected  for  mining  has  commercially  viable  

limestone  deposit.   The  site  was  selected  after  thorough  

consultation  with  the  concerned  village  Durbar  who  is  the  

custodian of the land.  The land was left unused covered with  

degraded forests and this was the reason for the Durbar to  

lease out the said land to the project proponent for mining.  

The  village  Durbar  also  felt  that  in  the  area  unscientific  

limestone quarrying was going on resulting in loss of revenue  

both  to  the  State  as  well  as  the  inhabitants  of  the  village  

particularly  because  the  said  mining  was  undertaken  by  

68

unorganized sectors and, thus, it was decided to enter into the  

lease with the project proponent so that mining could be done  

on scientific basis.  The site was also selected because of easy  

accessibility  by  road  and  less  vegetation  clearance  stood  

involved.  According to the NEHU Report, the site is located in  

the area on the outskirts of the forest. (See page 19 of the said  

Report)

(c) Validity of ex post facto clearance

22. An important argument has been advanced on behalf of  

SAC that the site clearance dated 18.6.1999 and EIA clearance  

dated  9.8.2001  were  based  on  misrepresentation  by  M/s.  

Lafarge.  They proceeded on the basis that there was no forest.  

That, both the said clearances stood vitiated by suppression of  

material fact of existence of forest by M/s. Lafarge and as a  

sequel the subsequent revised environmental clearance dated  

19.4.2010  and  forest  clearance  (Stage  –  I)  dated  22.4.2010  

stood  vitiated.   In  this  connection,  it  was  submitted  that  

having regard to Para 4.3.1 of the National Forest Policy, 1988  

tropical  rain/  moist  forest  is  required  to  be  totally  

safeguarded;  that,  the  project  is  located in  a tropical  moist  

69

forest and no forest 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  

70

the subject area is covered by a tropical moist forest deserving  

highest  degree  of  ecological  protection  ought  to  have  been  

taken into account by MoEF which was not done at the time of  

initial clearances dated 18.6.1999 and 9.8.2001.  Shri Divan,  

learned senior counsel appearing for SAC submitted before us  

that  the  case  in  hand  essentially  deals  with  the  decision  

making  process  in  relation  to  the  grant  of  environmental  

clearance  and to  test  whether  the  decision  making  process  

stood up to judicial review.  According to the learned counsel,  

the following basic points regarding the legal framework must  

be  kept  in  view:  -  From  the  environmental  perspective,  in  

relation  to  a  mining  project,  there  are  three  main  sets  of  

permissions that are required to be obtained:

(i) The first set of permissions is at the State level.  This  

set of permissions primarily has to do with pollution.  

In each State or a group of States, a Pollution Control  

Board  issues  consent/  permit.   These  consents  or  

permits are granted from a pollution perspective.  The  

scope  of  enquiry  is  limited  to  pollution  impacts.  

Obtaining such consents and permits are essential but  

71

they  are  not  a  substitute  for  compliance  with  other  

environmental laws.  

(ii) The  second  set  of  permissions,  according  to  the  

learned  counsel,  is  with  regard  to  environmental  

clearance.   The  scope  of  environmental  clearance  is  

wider  than  a  pollution  control  clearance.   The  

authority granting environmental clearance will look at  

broader impacts beyond pollution and will examine the  

effect  of  the project  on the community,  forests,  wild  

life, ground water, etc. which are beyond the scope of  

Pollution Control Board examination.  The exercise of  

granting  environmental  clearance  with  regard  to  a  

limestone  mining  project  of  the  present  magnitude  

requires MoEF clearance.   

(iii) A clearance for diversion of forest under the 1980 Act  

which is granted by MoEF on the recommendation of  

the  FAC  should  logically  precede  the  grant  of  

environmental  clearance  as  the  environmental  

clearance  is  broader  in  scope  and  deals  with  all  

aspects, one of which may be forest diversion.  

72

23. Applying  the  said  legal  framework  to  the  facts  of  the  

present  case,  the  learned  counsel  appearing  for  SAC  

submitted that the MoEF, as the authority which decides on  

diversion  of  forests  and  which  grants  environmental  

clearances, is duty bound to examine the diversion application  

in the context of the 1988 Policy, 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  

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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 counsel,  the requirement of  public  

hearing is, thus, mandatory both under the 1994 Notification  

and the 2006 Notification.  That, the requirement for payment  

of  NPV  does  not  automatically  mean  that  environmental  

clearance is to be granted.   

24. We  are  in  full  agreement  with  the  legal  framework  

suggested by the learned counsel for SAC.  There is no dispute  

on that point.  The question is confined to the application of  

the legal framework to the facts of the present case.  Can it be  

said  on  the  above  facts  that  a  mis-declaration  was  wilfully  

made by M/s. Lafarge or its predecessor (project proponent)  

while seeking site and environmental clearances?  Was there  

non-application of mind by MoEF in granting such clearances?  

Was the  decision of  MoEF based solely  on the declarations  

made by the project proponent(s)?  

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25. At the outset, one needs to take note of Section 2 of the  

1980 Act which stipulates prior approval.  That Section refers  

to restriction on the dereservation of forests or use of forest  

land  for  non-forest  purpose.   It  begins  with  non-obstante  

clause.  It states that “Notwithstanding anything contained in  

any  other  law  for  the  time  being  in  a  State,  no  State  

Government  or  other  authority  shall  make,  except  with the  

prior approval of the Central Government, any order directing  

that any forest land or any portion thereof may be used for  

any  non-forest  purpose”.   This  is  how the  concept  of  prior  

approval  by  the  Central  Government  comes  into  picture.  

Thus, prior determination of what constitutes “forest land” is  

required  to  be  done.   By  an  order  dated  12.12.1996  by  a  

Division Bench of this Court in Writ  Petition (C)  No. 202 of  

1995 with another in case of T.N. Godavarman Thirumulpad  

v. Union of India, this Court directed each State Government  

to constitute within a specific period an Expert Committee to  

identify areas which are forests irrespective of whether they  

are so notified, recognized or classified under any law and also  

identify areas which were earlier forests but stand degraded,  

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denuded or cleared.  The Committee was to be headed by the  

Principal  Chief  Conservator  of  Forests.   This  order  dated  

12.12.1996,  thus,  clarified  that  every  State  Government  

seeking prior approval under Section 2 of the 1980 Act shall  

first  examine  the  question  relating  to  existence  of  forests  

before  sending  its  proposal  to  the  Central  Government  in  

terms of the form prescribed under the 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-

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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  

project proponent in the present case was M/s. LMMPL.  That  

project proponent had obtained EIA clearance given by MoEF  

dated  9.8.2001  which  clearance  stood  transferred  to  M/s.  

Lafarge  only  on  30.7.2002.   While  granting  environmental  

clearance dated 9.8.2001 there was an express finding to the  

effect that “no diversion of forest land was involved”.  In terms  

of  the  order  of  this  Court  dated  12.12.1996,  an  Expert  

Committee was in fact 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 had addressed a specific letter to the Khasi  

Hills Autonomous District Council, which as stated above is a  

Constitutional Authority, stating that the land in question was  

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reckoned  as  non-forest  land and the  Council  was  asked  to  

clarify whether the area in question under the mining lease fell  

in the forest as per the records of the Council.  The Council by  

its letter dated 28.4.1997 had informed the State Government  

that the area in question did not fall in the forest.  Apart from  

the  said  letter,  the  Chairperson  of  the  Expert  Committee  

appointed by the State of Meghalaya being the Principal Chief  

Conservator of Forests also submitted his report in which it  

was  expressly  stated  that  the  mining  lease  granted  by  the  

State Government did not fall in the forest.  Since the mining  

lease granted by the State did not fall in the forest, the State  

Government  did  not  submit  any  proposal  to  the  Central  

Government under Section 2 of the 1980 Act as it treated the  

site in question as falling on the outskirts of the forests.  It is  

almost after nine years that there was a change of view on the  

part of MoEF under which the report of the Expert Committee  

headed by the Principal Chief Conservator of Forests was given  

a go-by.  Between 1997 and 2007, the view which prevailed  

was that the project site stood located on the outskirts of the  

forests.   In  this  connection,  it  needs  to  be  stated  that  on  

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1.6.2006 for the first time the Chief Conservator of Forests (C),  

Shri Khazan Singh came out with the change of view which  

was ultimately accepted in 2007 by MoEF.  According to the  

Chief Conservator of Forests (C), he had visited the limestone  

mining project of M/s. Lafarge on 24.5.2006 when he found  

that the mining lease area stood surrounded by thick natural  

vegetation covered with sizeable number of 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  

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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 by the  

State Pollution Control Board constituting an Environmental  

Public Hearing Panel  to evaluate and assess the documents  

submitted by M/s. LMMPL.  A public notice was also issued in  

local newspapers on 25.5.1998.  The State Pollution Control  

Board  also  sent  a  letter  to  the  Secretary,  Shella  Village  

informing  him  of  the  date  and  time  of  public  hearing  and  

accordingly  on  3.6.1998,  a  public  hearing  did  take  place.  

According to the minutes of the meeting, 31 citizens of Shella  

Nongtrai,  Pyrkan attended the hearing.   In the hearing,  the  

purpose,  objective,  composition  and  procedure  of  

environmental public hearing was discussed.  The Headman of  

Nongtrai  was also present.   He gave reasons as to why the  

village Durbar had agreed to the proposed project.  The main  

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reason being that the limestone was abundantly available in  

the area but the same remained unutilized by local villagers  

themselves due to lack of infrastructure.  That, for economic  

development of  the local  population,  the village Durbar had  

decided  to  lease  the  area  required  for  the  project  to  M/s.  

Lafarge.   In the meeting,  the economic benefits  of  the local  

people from the project proponent were also discussed.  The  

environmental  implications  were  also  discussed.   The  

mitigating measures to be adopted by the project proponent  

were  also  discussed  to  maintain  the  ecology  and  

environmental balance of the area.  The objections of certain  

persons were also noted and discussed.  The Durbar came to  

the  conclusion that  there  was no destruction of  any caves.  

The  complainant  was  not  even present  during  the  hearing.  

Thus, a public hearing did take place on 3.6.1998.  One more  

aspect  at  this  stage  needs  to  be  mentioned.   Public  

participation  provides  a  valuable  input  in  the  process  of  

identification  of  forest.   Today,  amongst  the  tribals  of  the  

North  East,  there  is  a  growing  awareness  of  the  close  

relationship  between  poverty  and  environmental  pollution.  

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According to Environmental Law and Policy in India by Shyam  

Divan and Armin Rosencranz,  “many native  and indigenous  

people  are  fully  aware  of  what  constitutes  preservation and  

conservation  of  biodiversity.   Many  native  and  indigenous  

people have many a times opposed government policies that  

permit  exploitation  on  traditional  lands  because  such  

exploitation  threatens  to  undermine  the  economic  and  

spiritual  fabric  of  their  culture,  and  often  results  in  forced  

migration  and  resettlement,  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  

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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  control  of  community  lands  is  

completely  within  the jurisdiction  of  the  community.   Such  

community lands in highlands of Khasi Hills are termed as Ri  

Raid whereas community lands in low-lying areas are termed  

as  Ri  Seng.   Nongtrai  village  has  about  1300  hectares  of  

community  land  out  of  which  900  hectares  are  limestone  

bearing land.  The manner and method of allocation, use and  

occupation of the community lands are decided by the Village  

Durbar.  The Village Durbar has granted lease of 100 hectares  

of community land out of 900 hectares which as stated above  

is limestone bearing land.  It is important to note that apart  

from the minutes of the meeting held on 3.6.1998 which was  

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attended  by  the  Headman  of  the  Nongtrai  Village,  a  detail  

written  submission  has  been  filed  on  13.5.2011  by  the  

Nongtrai Village Durbar fully supporting the impugned project.  

Thus,  this is  a unique case from North East.   We are fully  

satisfied  that  the  natives  and  the  indigenous  people  of  

Nongtrai  Village  are  fully  conscious  of  their  rights  and  

obligations  towards  clean  environment  and  economic  

development.  There is ample material on record which bears  

testimony to the fact of their awareness of ecological concerns  

which  has  been  taken  into  account  by  MoEF.   In  the  

circumstances,  it  cannot be said that  the impugned project  

should be discarded and that the decision of MoEF granting ex  

post  facto  clearances  stands  vitiated  for  non-application  of  

mind as alleged by SAC.  At this stage one more argument  

advanced on behalf of SAC needs to be addressed.  According  

to SAC, in this case a decisive factor which clearly shows that  

there is “forest” on the core area is the statutory definition of  

forest  contained  in  the  United  Khasi  –  Jaintia  Hills  

Autonomous  District  (Management  and  Control  of  Forests)  

Act, 1958.  Section 2(f) defines the expression “forest” and the  

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tree count emerging from the High Powered Committee (HPC)  

Report which establishes that the area answers the statutory  

definition.  According to SAC, in terms of the said definition of  

forest, if there exists more than 25 trees per acre then it is a  

forest.   This  argument  has  no  merit.   According  to  Shri  

Krishnan  Venugopal,  learned  senior  counsel  appearing  on  

behalf  of  the Village Durbar  of  Nongtrai  Village (respondent  

No. 5), SAC has not stated the full facts in this regard.  We  

find merit in this contention.  Section 5 of the 1958 Act inter  

alia provides 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  

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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 engrained in the local customary law  

and  usage.   It  is  so  understood  by  the  Expert  Committee  

headed by the then Principal Chief Conservator of Forests on  

the basis of which the State granted the mining lease saying  

that there was no forest.  This certificate was granted by the  

State in terms of the order of this Court dated 12.12.1996.  

This understanding also existed in the mind of KHADC when it  

gave certificates on 28.4.1997, 10.7.1997 and 27.8.1997.  In  

fact  this  has  been  the  understanding  of  the  Council  as  is  

apparent even from its letter dated 18.1.2011 (see page 126 of  

the affidavit dated 9.3.2011 filed by the State of Meghalaya).  

As stated above, this view prevailed with the MoEF between  

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1997 and 2007.  The word “environment” has different facets  

[see  para  127  of  the  judgment  of  this  Court  in  Narmada  

Bachao Andolan (supra)].  On the above facts, it is not possible  

for  us  to  hold  that  the  decision  to  grant  ex  post  facto  

clearances  stood  vitiated  on  account  of  non-application  of  

mind or on account of suppression of material facts by M/s.  

Lafarge as alleged by SAC.   

26. Similarly, it is not possible for us to hold on the above  

facts that ex post facto clearances have been granted by MoEF  

in ignorance of the existence of forests due to mis-declaration.  

Two  points  are  required  to  be  highlighted  at  the  outset.  

Firstly, the ex post facto clearance is based on the revised EIA.  

In  the  circumstances,  EIA  Notification  of  2006  would  not  

apply.   Secondly,  IA preferred by SAC being I.A.  No.  2225-

2227/08 was preferred only in March, 2008.  Thus, during the  

relevant period of almost a decade, SAC did not object to the  

said project.  In fact an IA is now pending in this Court being  

IA No. 3063 of 2011 preferred by CEC which indicates that  

there are 28 active mines out of which 8 are located along the  

Shella-Cherrapunjee  Road  which  are  operating  without  

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obtaining approval and in violation of the 1980 Act.  Further,  

the said I.A. alleges that 6 registered quarry owners are under  

the Shella Wahadarship, East Khasi Hills and that there are  

12 individuals involved in mining limestone in the Shella Area  

during  2008-09.   All  these  aspects  require  in-depth  

examination.   The  locus  of  SAC  is  not  being  doubted.  

However, the I.A. No. 3063 of 2011 preferred by CEC which  

has acted only after receiving inputs from the respondent No.  

5  prima  facie  throws  doubt  on  the  credibility  of  objections  

raised  by  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-

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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 Notification of 1994.  That amendment  

took place on 10.4.1997 by which two stage clearances were  

required  to  be  obtained,  namely,  site  clearance  and project  

clearance.   Therefore,  immediately  MoEF  returned  the  

application  to  the  project  proponent  asking  it  to  submit  

applications for site clearance as well as for project clearance.  

Similarly, although the then project proponent had made site  

clearance application which fulfilled the 1994 Notification (as  

amended),  the  MoEF gave site  clearance  on 18.6.1999 with  

additional conditions.  Similarly, despite the project proponent  

making application for environmental clearance on 17.4.2000  

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enclosing Rapid EIA prepared by ERM India Pvt. Ltd. referring  

to  absence  of  forest,  the  MoEF  asked  project  proponent  to  

obtain certificate of DFO in terms of the definition of the word  

“forest”  as  laid  down  in  the  order  of  this  Court  dated  

12.12.1996.  Similarly, despite the certificate given by DFO on  

13.6.2000 stating that the proposed mining site is not a forest  

area,  the  MoEF  sought  further  details  in  terms  of  the  

connotation of the word “forest” as laid down in the order of  

this Court dated 12.12.1996.  Similarly, from time to time the  

Expert  Committee  of  MoEF asked for  details  with regard to  

flora and fauna, list of species in that area, types of forests  

existing in that area, etc.  Similarly, after receipt of letter from  

Shri Khazan Singh, the then Chief Conservator of Forests (C)  

on 1.6.2006, the MoEF called upon the project proponent to  

submit an application for forest clearance on the basis that  

the site was located in the forest.  A number of queries have  

been raised from time to time by the MoEF as indicated from  

the facts  enumerated hereinabove.   Even a report  from the  

High Powered Committee (HPC) was called for by MoEF which  

was  submitted  on  5.4.2010.   There  were  four  terms  of  

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references  given  to  the  HPC.   According  to  the  report,  all  

conditions  imposed  with  regard  to  environmental  clearance  

had been substantially complied with by M/s. Lafarge.  The  

report  also  refers  to  the  steps  taken  by  M/s.  Lafarge  with  

regard to reforestation.  The most important aspect of the HPC  

Report is regarding the topography of the area.  It states that  

though  the  area  can  be  treated  as  forest,  still  it  is  a  hilly  

uneven  undulating  area  largely  covered  by  “Karstified”  

limestone.   The  Report  further  states  that  the  area  can be  

reforested as a part of the 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  

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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 Conservator of Forests (C) vide letter dated 1.6.2006,  

still it is not the fault of M/s. Lafarge.  Thus, under the above  

circumstances,  we  are  satisfied  that  the  parameters  of  

intergenerational  equity  are  satisfied  and  no  reasonable  

person can say that the impugned decision to grant Stage – I  

forest  clearance  and  revised  environmental  clearance  stood  

vitiated on account of non-application of mind by MoEF.  On  

the  contrary,  the  facts  indicate  that  the  MoEF  has  been  

diligent.  That, MoEF has taken requisite care and caution to  

protect the environment and in the circumstances, we uphold  

the  stage-I  forest  clearance  and  the  revised  environmental  

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clearance granted by MoEF.

27. Before  concluding,  we would like  to  refer  to  our order  

dated 12.4.2010 which recites agreed conditions between the  

parties which conditions are imposed by this Court in addition  

to the conditions laid down by MoEF.  These agreed conditions  

incorporated in our order dated 12.4.2010 are in terms of our  

judgment  in  T.N.  Godavarman  Thirumulpad  v.  Union  of  

India [(2006) 1 SCC 1] with regard to commercial exploitability  

which even according to SAC was not considered by MoEF at  

the  time  of  granting  revised  environmental  clearance  on  

19.4.2010  or  at  the  time  of  granting  forest  clearance  on  

22.4.2010.  We reproduce our order dated 12.4.2010, which  

reads as under:

“Heard  both  sides.   Learned  Attorney  General  for  India  stated that  the  Ministry  of  Environment  &  Forests  will  take  a  decision  under the   Forest   Conservation   Act   and  shall   consider   granting permission subject  to the following conditions       :

1.  The applicant  shall  deposit a sum of  Rs.55  crores  towards  five  times  of  the  normal  NPV  (as  recommended  by  the  CEC) with interest @ 9% per annum from  1st April, 2007, till the date of payment.  Such payment shall be made in totality in  

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one instalment within 4 weeks from the  date of the order.

2.  An  SPV  shall  be  set  up  under  the  Chairmanship  of  the  Chief  Secretary,  Meghalaya  with  the  Principal  Chief  Conservator of Forests, Meghalaya, Tribal  Secretary,  Meghalaya,  Regional  Chief  Conservator of Forests, MoEF at Shillong  and one reputed NGO (to be nominated  by the MoEF) as Members. The SPV will  be set up within 4 weeks.

3. The User Agency will deposit with the  SPV a sum of  Rs.90/-  per tonne of  the  limestone mined from the date on which  mining commenced within 4 weeks of the  SPV being constituted.

4. The SPV 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  

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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 limestone on the basis  of disorganized and unscientific and  ecologically unsustainable mining in  the area.

       (f) It    shall    prepare    a  comprehensive  forest  rehabilitation  and conservation plan covering the  project  as  well  as  the  surrounding  area.

(g) It  shall  prepare  a  comprehensive  Biodiversity  Management  Plan  to  mitigate  the  possible  impacts  of  mining  on  the  surrounding  forest  and wildlife.

(h) It shall maintain a strip of at least  100  meter  of  forest  area  on  the  boundary of mining area as a green  belt.

6.  The MoEF shall take a final decision  under  the  Forest    Conservation    Act,  1980  for  the  revised  environmental  

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clearance for diversion of 116 hectares of  forest land, taking into consideration all  the  conditions  stipulated  hereinabove  and  it  may  impose  such  further  conditions as it may deem proper.

List on 26.04.2010 at 2.00 p.m.”          

28. This order indicates the benefit which will accrue to the  

natives and residents of the Nongtrai Village.  The site covers  

100 hectare required for limestone mining.  The Village Durbar  

seeks  to  exploit  it  on  scientific  lines.   The  minutes  of  the  

meeting of the Village Durbar and the submissions filed by the  

Durbar indicate the exercise of the rights by the tribals and  

the natives of Nongtrai Village seeking economic development  

within the parameters of the 1980 Act and the 1986 Act.   

29. At the request of the learned counsel for SAC, we wish to  

state that none of the observations made hereinabove in the  

context  of  the  nature  of  the  land  (the  extent  of  the  lands  

owned  by  the  community  and  by  private  persons)  shall  be  

taken  into  account  by  the  competent  court  in  which  title  

dispute is pending today.

(d) Summary

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30. Time  has  come  for  us  to  apply  the  constitutional  

“doctrine  of  proportionality” to  the  matters  concerning  

environment as a part of the process of judicial review in  

contradistinction to merit review.  It cannot be gainsaid  

that  utilization  of  the  environment  and  its  natural  

resources  has  to  be  in  a  way  that  is  consistent  with  

principles  of  sustainable  development  and  

intergenerational  equity,  but balancing of  these equities  

may entail policy choices.  In the circumstances,  barring  

exceptions,  decisions  relating  to  utilization  of  natural  

resources  have  to  be  tested  on  the  anvil  of  the  well-

recognized  principles  of  judicial  review.   Have  all  the  

relevant  factors  been  taken  into  account?   Have  any  

extraneous  factors  influenced  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?  

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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 connectivity  of  the site  to  

Shillong, the letter dated 11.5.2007 of the Principal Chief  

Conservator  of  Forests  and the  report  of  Shri  B.N.  Jha  

dated  5.4.2010  (HPC)  (each  one  of  which  refers  to  

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economic welfare of  the tribals of  Village Nongtrai),  the  

polluter  pays  principle  and the  intergenerational  equity  

(including  the  history  of  limestone  mining  in  the  area  

from 1858 and the prevalent social and customary rights  

of the natives and tribals).  The word “development” is a  

relative term.  One cannot assume that the tribals are not  

aware  of  principles  of  conservation  of  forest.   In  the  

present case, we are satisfied that limestone mining has  

been going on for centuries in the area and that it is an  

activity  which  is  intertwined  with  the  culture  and  the  

unique  land holding  and tenure  system of  the Nongtrai  

Village.  On the facts of this case, we are satisfied with due  

diligence exercise undertaken by MoEF in the matter of  

forest diversion.  Thus, our order herein is confined to the  

facts of this case.

Conclusion

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32. Accordingly,  we  see  no  reason  to  interfere  with  the  

decision of MoEF granting site clearance dated 18.6.1999, EIA  

clearance  dated  9.8.2001  read  with  revised  environmental  

clearance dated 19.4.2010 and Stage-I forest clearance dated  

22.4.2010.  Accordingly,  I.A. No. 1868 of  2007 preferred by  

M/s.  Lafarge  stands  allowed  with  no  order  as  to  costs.  

Consequently,  I.A.  No.  2937  of  2010  preferred  by  SAC  is  

dismissed.   The  interim  order  passed  by  this  Court  on  

5.2.2010 shall also stand vacated.  All other I.As. shall stand  

disposed of.

Part II

Guidelines to be followed in future cases

(i) As  stated  in  our  order  hereinabove,  the  words  

“environment”  and  “sustainable  development”  have  

various facets.  At times in respect of a few of these  

facets data is not available.  Care for environment is  

an ongoing process.  Time has come for this Court to  

declare and we hereby declare that the National Forest  

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Policy, 1988 which lays down far-reaching principles  

must  necessarily  govern  the  grant  of  permissions  

under Section 2 of the Forest (Conservation) Act, 1980  

as  the  same  provides  the  road  map  to  ecological  

protection  and improvement  under  the  Environment  

(Protection)  Act,  1986.   The  principles/  guidelines  

mentioned in the National Forest Policy, 1988 should  

be read as part of the provisions of the Environment  

(Protection)  Act,  1986  read  together  with  the  Forest  

(Conservation) 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.  

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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 adversely disturbed by serious depletion  

of  forest,  conservation  of  natural  heritage  of  the  

country  by  preserving  the  remaining  natural  forests  

with the vast variety of flora and fauna, checking soil  

erosion  and  denudation  in  the  catchment  areas,  

checking the extension of sand-dunes, increasing the  

forest/  tree  cover  in  the  country  and  encouraging  

efficient utilization of forest produce and maximizing  

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substitution of wood.  Thus, we are of the view that  

under Section 3(3) of the Environment (Protection)  

Act, 1986, the Central Government should appoint  

a  National  Regulator  for  appraising  projects,  

enforcing  environmental  conditions  for  approvals  

and to impose penalties on polluters. There is one  

more  reason  for  having  a  regulatory  mechanism  in  

place.  Identification of an area as forest area is solely  

based  on  the  Declaration  to  be  filed  by  the  User  

Agency  (project  proponent).   The  project  proponent  

under  the  existing  dispensation  is  required  to  

undertake  EIA  by  an  expert  body/  institution.   In  

many cases, the court is not made aware of the terms  

of reference.  In several cases, the court is not made  

aware  of  the  study  area  undertaken  by  the  expert  

body.   Consequently,  the  MoEF/  State  Government  

acts  on  the  report  (Rapid  EIA)  undertaken  by  the  

Institutions  who  though  accredited  submit  answers  

according  to  the  Terms of  Reference  propounded by  

the project  proponent.   We do not wish to cast any  

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doubt on the credibility of these Institutions.  However,  

at  times  the  court  is  faced  with  conflicting  reports.  

Similarly,  the  government  is  also  faced  with  a  fait   

accompli kind situation which in the ultimate analysis  

leads to grant of ex facto clearance.  To obviate these  

difficulties,  we  are  of  the  view  that  a  regulatory  

mechanism should be put in place and till  the time  

such  mechanism is  put  in  place,  the  MoEF  should  

prepare a Panel of Accredited Institutions from which  

alone the project proponent should obtain the Rapid  

EIA  and  that  too  on  the  Terms  of  Reference  to  be  

formulated by the MoEF.

(ii) In  all  future  cases,  the  User  Agency  (project  

proponents) shall comply with the Office Memorandum  

dated 26.4.2011 issued by the MoEF which requires  

that all mining projects involving forests and for such  

non-mining  projects  which  involve  more  than  40  

hectares of forests, the project proponent shall submit  

the  documents  which  have  been enumerated  in  the  

said Memorandum.

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(iii) If  the  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.

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(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  Governments  to  

facilitate  more  frequent  inspections  and  in-depth  

scrutiny and appraisal of the proposals.

(vi) Constitution  of  Regional  Empowered  Committee,  

under  the  Chairmanship  of  the  concerned  Chief  

Conservator  of  Forests  (Central)  and  having  

Conservator of Forests (Central) and three non-official  

members to be selected from the eminent experts in  

forestry and allied disciplines as its members, at each  

of  the  Regional  Offices  of  the  MoEF,  to  facilitate  

detailed/in-depth scrutiny of  the  proposals  involving  

diversion of forest area more than 5 hectares and up to  

40 hectares and all proposals relating to mining and  

encroachments up to 40 hectares.

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(vii) Creation and regular updating of a GIS based decision  

support database, tentatively containing inter-alia  the  

district-wise details of the location and boundary of (i)  

each plot of land that may be defined as forest for the  

purpose of the Forest (Conservation) Act, 1980; (ii) the  

core,  buffer  and  eco-sensitive  zone  of  the  protected  

areas constituted as per the provisions of the Wildlife  

(Protection)  Act,  1972;  (iii)  the  important  migratory  

corridors for wildlife; and (iv) the forest land diverted  

for non-forest purpose in the past in the district.  The  

Survey of India toposheets in digital format, the forest  

cover maps prepared by the Forest Survey of India in  

preparation of the successive State of Forest Reports  

and  the  conditions  stipulated  in  the  approvals  

accorded under the Forest (Conservations) Act, 1980  

for each case of diversion of forest land in the district  

will  also  be  part  of  the  proposed  decision  support  

database.

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(viii) Orders  to  implement  these  may,  after  getting  

necessary approvals, be issued expeditiously.

(ix) The  Office  Memorandum  dated  26.4.2011  is  in  

continuation of an earlier Office Memorandum dated  

31.03.2011.   This earlier  O.M. clearly delineates the  

order of priority required to be followed while seeking  

Environmental  Clearance  under  the  Environment  

Impact Assessment Notification 2006.  It provides that  

in cases where environmental clearance is required for  

a project on forest land, the forest clearance shall be  

obtained  before  the  grant  of  the  environment  

clearance.

(x) In addition to the above, an Office Memorandum dated  

26.04.2011  on  Corporate  Environmental  

Responsibility has also been issued by the MoEF.  This  

O.M. lays down the need for PSUs and other Corporate  

entities  to  evolve  a  Corporate  Environment  Policy  of  

their  own  to  ensure  greater  compliance  with  the  

environmental and forestry clearance granted to them.  

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(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”  

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irrespective of whether they are so notified, recognized  

or  classified  under  any  law,  and  irrespective  of  the  

land of such “forest” and the areas which were earlier  

“forests”  but  stand  degraded,  denuded  and  cleared,  

culminating in preparation of  Geo-referenced district  

forest-maps containing the details of the location and  

boundary of each plot of land that may be defined as  

“forest”  for  the  purpose  of  the  Forest  (Conservation)  

Act, 1980.   

(xiii) Incorporating  appropriate  safeguards  in  the  

Environment Clearance process to eliminate chance of  

the  grant  of  Environment  Clearance  to  projects  

involving diversion of forest land by considering such  

forest land as non-forest, a flow chart depicting, the  

tentative  nature  and  manner  of  incorporating  the  

proposed safeguards, to be finalized after consultation  

with the State/ UT Governments.

(xiv) The  public  consultation  or  public  hearing  as  it  is  

commonly known, is a mandatory requirement of the  

environment  clearance  process  and  provides  an  

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effective forum for any person aggrieved by any aspect  

of any project to register and seek redressal of his/her  

grievances;

(xv) The  MoEF  will  prepare  a  comprehensive  policy  for  

inspection, verification and monitoring and the overall  

procedure relating to the grant of forest clearances and  

identification of forests in consultation with the States  

(given  that  forests  fall  under  entry  17A  of  the  

Concurrent List).

33. Part II of our order gives guidelines to be followed by the  

Central  Government,  State  Government  and  the  various  

authorities under the Forest (Conservation) Act, 1980 and the  

Environment (Protection) Act, 1986.  These guidelines are to  

be  implemented  in  all  future  cases.   These  guidelines  are  

required to be given so  that  fait  accompli situations do not  

recur.   We have  issued these guidelines in  the  light  of  our  

experience in the last couple of years.  These guidelines will  

operate  in  all  future  cases  of  environmental  and  forest  

clearances till a regulatory mechanism is put in place.  On the  

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implementation  of  these  Guidelines,  MoEF  will  file  its  

compliance report within six months.

………..……………………….CJI (S. H. Kapadia)

……..……………………………..J.                         (Aftab Alam)

……..……………………………..J. (K.S. Panicker Radhakrishnan)

New Delhi;  July 06, 2011

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