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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1247 OF 2012

Talaulicar & Sons P. Ltd.                …Appellant VERSUS

Union of India & Anr.             …Respondents  

WITH

CIVIL APPEAL NO. 6174  OF 2016 [arising out of SLP(C). 17731/2016 @ CC No.20925 of 2012]

WITH

T.P.(C) NO.1843 OF 2013

J   U  D  G   M   E   N   T

Fakkir Mohamed Ibrahim Kalifulla, J.

Delay condoned.   

Leave granted in SLP(C)……../2016 @ CC No.20925 of 2012.

1. These appeals are directed against a Division Bench judgment

dated  12.08.2011 of  the  High  Court  of  Bombay  at  Goa  in  Public

Interest Litigation Writ Petition No.6 of 2011. The said writ petition was

moved at the instance of the second respondent herein with a prayer

that the appellant was originally granted environmental clearance for

the expansion of Saniem Sacorda Iron Ore Mine on 25.11.2005 for

two years, that by a subsequent letter dated 18.10.2007 of the first

respondent, the two years period to conduct a higher geological study

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was  deleted,  that  by  virtue  of  the  conditions  stipulated  in  the

Notification dated 27.01.1994 read along with the Notification dated

04.05.1994  such  environmental  clearance  granted  in  favour  of  the

appellant expired on 25.11.2010 and that in spite of such expiry, the

appellant  continued  to  indulge  in  mining  operations.   The  second

respondent therefore contended that such illegal mining activity of the

appellant  was not  controlled  by the  first  respondent  even after  the

second respondent’s communication dated 30.11.2010.  It was on the

above said basis, the second respondent prayed for the issuance of

the mandamus directing the first respondent to stop the operation of

Saniem Sacorda Iron Ore Mine of  the appellant  and also direct  for

payment of compensation for having caused environmental damage. 2. The Division Bench of the High Court having made a detailed

analysis of the grievance of the second respondent as a local resident,

the  relevant  provisions  of  the  Statute  as  well  as  the  Environment

Impact Assessment (EIA) Notification dated 27.01.1994, took the view

that the clearance granted in favour of the appellant in the order dated

25.11.2005 for the expansion of Saniem Sacorda Iron Ore Mine was

initially for a period of two years as per the EIA Notification of 1994

and that such clearance can be valid only for a period of five years as

is  stipulated  in  the  EIA  Notifications  and  the  relevant  Rules.  The

Division Bench ultimately held that the appellant was carrying on the

mining operations without a valid subsisting environmental clearance

and  while  granting  liberty  to  the  appellant  to  seek  an

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extension/renewal of the environmental clearance for a further period,

in accordance with law, within a period of three months also directed

that in the event of non-grant of any such environmental clearance,

the appellant should discontinue mining operations of the concerned

mine, till such time environmental clearance is granted. While holding

so,  the  Division  Bench  made  it  clear  that  the  validity  of  the

environmental clearance granted in favour of the appellant was only

for  a  period  of  five  years  from the  date  of  commencement  of  the

operation of the mining projects / expansion of the project carried out

by  the  appellant.  Aggrieved  by  the  said  judgment  of  the  Division

Bench, the appellant is before us.

3. It will be worthwhile to note certain observations of the Division

Bench before passing final orders in these appeals. While considering

the  question  whether  the  validity  of  the  environmental  clearance

granted in favour of the appellant would be limited for a period of five

years or more, the Division Bench made a reference to Para 2(III)(c) of

the EIA Notification of 1994 wherein it was stipulated that clearance

granted  would  be  valid  for  a  period  of  five  years  from  the

commencement of the construction or operation of the projects, that

such prescription of the period has got a nexus to the environment

protection.  In that context, the Division Bench further observed that

the  purpose and object  of  the  Environment  Protection  Act  and the

Rules framed there under must be given its full effect, that if there is

no check on the environment hazard at the time of carrying out the

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mining activities, it could lead to degradation of the environment, that

carrying out impact assessment within specific period would assist in

ascertaining the adverse effect of the project activity which is sought to

be pursued by the project proponent, that any activity carried out in

respect  of  specific  projects  such as mining,  requires  environmental

clearance in order to see that such activities would not result in further

degradation of the environment affecting the life of the residents in the

locality and therefore the prescription of limited period had a nexus to

the  grant  of  environmental  clearance.  The  Division  Bench  also

rejected  the  claim  of  the  appellant  that  once  the  environmental

clearance was granted, the same would be valid for thirty years based

on  the  subsequent  Notification  of  2006  in  supersession  of  the

Notification dated 27.01.1994.  4. Having  thus  noted  the  above  observations  of  the  Division

Bench,  we heard Mr. Shyam Divan,  learned senior  counsel  for  the

appellant, Mr. A.N.S. Nadkarni, learned Advocate General for Goa, Mr.

Colin Gonsalves, learned senior counsel for the second respondent

and Ms. Pinky Anand, learned Additional Solicitor General for the first

respondent.

5. We find that the appellant applied for environmental clearance

for expansion of Saniem Sacorda Iron Ore Mine falling within Tehsil

Sariguem,  District  South  Goa  in  the  Union  Territory  of  Goa,  in  its

application  dated  15.03.2005,  followed by subsequent  letters  dated

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28.04.2005 and 16.08.2005.  The first respondent passed orders on

25.11.2005.   In paragraph 2.0  it  was stipulated that  the Ministry  of

Environment  and  Forest  (MoEF  in  short)  accord  environmental

clearance for a period of two years only to Saniem Sacorda Iron Ore

Mine of  the  appellant  involving  a lease area  of  50.30  hectares  for

production  of  iron  ore  under  the  provisions  of  Environment  Impact

Assessment  Notification,  1994,  subject  to  specific  conditions  under

caption ‘A’.  In sub-para (ii)  of Para ‘A’, it  was specifically noted as

under: “A(ii). The proponent shall within 2 years conduct

a  detailed  hydrogeological  study  (quality  and

quantity)  on  impact  of  mining  on  hydrogeology

(pre-monsoon, monsoon and post-monsoon) and

furnish  a  detailed  report  on  the  same  to  the

Ministry. Based on the same, a decision regarding

continuation  of  mining  beyond  2  years  or

otherwise will be taken.”

6. After  the  said  order  dated  25.11.2005,  the  first  respondent

passed its subsequent order dated 18.10.2007, wherein, it was stated

that in pursuance of its order dated 25.11.2005, the appellant had filed

the  report  of  hydrogeological  study  on  impact  of  mining  on

hydrogeology of the mine lease area, that on examination of the said

report, it was found that radius of influence due to mine pit dewatering

would extend to about 235 meters around the mine pit, that the stage

of ground water development is about 4.53% which according to the

first  respondent  was  well  within  the  safe  limits  as  per  Central

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Groundwater  Board  Norms.   It  was  also  noted  that  the  results  of

chemical quality data of both surface water and groundwater as well

as mine pit water indicated no contamination due to mining operations.

In paragraph 3 of the said order, the first respondent ultimately deleted

the  prescription  of  two  years  period  stipulated  in  the  order  dated

25.11.2005.   7. It  was  in  the  above  stated  background,  that  the  second

respondent  moved the High Court  as  a  local  resident  alleging  that

having regard to the EIA Notification dated 27.01.1994 as amended by

subsequent  Notification  dated  04.05.1994,  the  environmental

clearance granted in favour of the appellant was valid only for a period

of five years from the date of commencement and consequently the

five  years  period  having  expired  on  25.11.2010,  further  mining

operations of the appellant in the above referred to mine by way of

expansion  was  in  violation  of  the  provisions  of  the  Environment

Protection Act, the EIA Notifications and the relevant Rules.  8. In so far as the right of a local resident is concerned, when we

make  a  reference  to  the  initial  Notification  dated  27.01.1994,  in

paragraph 2(III)(c) it is specifically provided as under: “2.(III)(c). The Impact Assessment Agency shall prepare

a  set  of  recommendations  based  on  technical

assessment  of  documents  and data,  furnished by the

project  authorities,  supplemented  by  data  collected

during  visits  to  sites  or  factories,  if  undertaken,  and

interaction  with  affected  population  and environmental

groups, if  necessary.  Summary  of  the  reports,  the

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recommendation  and  the  conditions,  subject  to  which

environmental  clearance  is  given,  shall  be  made

available subject to the public interest to the concerned

parties or environmental groups on request.  Comments

of the public may be solicited, if so decided by Impact

Assessment  Agency,  within  thirty  days  of  receipt  of

proposal,  in  public  hearings  arranged for  the purpose

after giving thirty days notice of such hearings in at least

two  newspapers.  Public  shall  be  provided  access,

subject  to  the  public  interest,  to  the  summary  of  the

reports/Environmental  Management  Plans  at  the

Headquarters of the Impact Assessment Agency. The assessment shall be completed within a period of

ninety days from receipt of the requisite documents and

data  from  the  project  authorities  and  completion  of

public hearing, where required, and decision conveyed

within thirty days thereafter.  The clearance granted shall be valid for a period of five years  for  commencement  of  the  construction  or operation.   No construction work, preliminary or otherwise, relating to the setting up of the project may be undertaken till the environmental and/or site clearance is obtained.”  

(Emphasis added)

9. Again when we make reference to the subsequent Notification

dated  14.09.2006,  there  is  a  specific  provision  therein  also  in

paragraph  III  Stage  III  clause  (i)  &  (ii)  which  contains  as  many

sub-paragraph (a) to (f) in clause (i), (a) and (b) in Clause (ii) apart

from  Clause  (iii)  to  (vii).   The  specifications  contained  in  the

Notification dated 14.09.2006, states that the same came to be issued

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in supersession of the Notification dated 27.01.1994.  It also stipulates

the  Constitution  of  State  Level  Environment  Impact  Assessment

Authority, categorization of projects and activities, screening, scoping

and  appraisal  committees,  different  Stages  for  prior  environmental

clearance (EC-process  for  new projects),  process  for  expansion  or

modernization or change of product mix in existing projects and at the

end in paragraph 8, grant or rejection of prior environmental clearance

and  in  paragraph  9  validity  of  environmental  clearance  and  in

paragraph 10 post environmental clearance monitoring, in paragraph

11 transferability of environmental clearance is also provided.  10. Keeping  the  above  relevant  factors  in  mind,  we  heard  the

learned senior counsel for the appellant, learned Additional Solicitor

General  and  the  learned  Advocate  General,  the  learned  senior

counsel for the second respondent.  In order to examine the scope,

ambit and correctness of the orders dated 25.11.2005 and 18.10.2007,

the  learned  Additional  Solicitor  General  was  directed  to  call  upon

MoEF to produce the records of the case.  Thereafter, it was felt that

after grant of the environmental clearance for a period of two years in

the order dated 25.11.2005, subject to submission of hydro geological

study of the area, when the subsequent order dated 18.10.2007 was

passed,  we found that very many requirements of  the Environment

Protection Act, the relevant Rules framed there under and the various

factors to be taken into account and a detailed public hearing to be

effected as stipulated in the last of the Notifications dated 14.09.2006,

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were not specifically addressed by the first respondent while passing

the  order  dated  18.10.2007.   In  other  words,  the  order  dated

18.10.2007 was a cryptic one without giving due regard to the various

salient features concerning the environment protection and the interest

of the public at large, while granting such clearance and allowing the

clearance granted earlier to be valid beyond the initial period of two

years and also without specifying as to the other terms and conditions

to be complied with.    11. In such circumstances, while on the one hand, appreciating the

observations made by the Division Bench in the impugned order which

we have highlighted in the earlier part of this order, we feel that the

first  respondent  should  be  directed  to  take  a  fresh  look  for  the

continuation or otherwise of the environmental clearance granted by it

in the order dated 25.11.2005, after scrupulously following the various

relevant factors, such as notifying the State level Authority and other

Authorities  concerned,  effective  public  hearing  after  due  paper

publication  even  while  referring  to  the  hydro  geological  report

submitted  by  the  appellant  and  then  pass  final  orders.   In  that

perspective we are convinced that the order dated 18.10.2007 is liable

to be set aside with necessary direction to the first respondent to look

into the application of the appellant afresh after the submission of the

hydro geological report and after giving an opportunity of hearing to

the appellant as well as the second respondent or such other bodies

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to  whom  such  hearing  is  to  be  offered  as  per  the  subsequent

Notification dated 14.09.2006, permit them to file the required material

documents in support of their respective stand and pass a reasoned

order  in  accordance  with  the  procedure  prescribed  under  the  said

Notification.  

12. With that view, we set aside the order dated 18.10.2007, and

consequently the impugned order cannot also stand.  We therefore,

direct the first respondent MoEF to proceed afresh, issue a notice of

hearing to the appellant, the second respondent, as well as, hold the

consultative process with the State Level Authorities and call for the

required reports from the concerned experts of its choice and after due

hearing,  pass  appropriate  orders,  in  accordance  with  law.  Such

exercise  shall  be  carried  out  by  the  first  respondent  MoEF

expeditiously, preferably, within a period of three months from the date

of production of a copy of this order.  It is needless to state that any

order that may be passed pursuant to this judgment will  always be

subject to the decisions in Goa Foundation cases reported in (2014)

6 SCC 590 and (2014) 6 SCC 738 respectively. We make it clear that

we have not gone into the merits of the respective contentions of the

appellant or the respondents. The appeals stand disposed of with the

above directions. No costs. 13. Transfer  Petition(C)  No.1843/2013  has  been  filed  by

Respondent-Shankar Raghunath Jog in the above appeals.  He has

approached  the  National  Green  Tribunal  in  O.A.  No.22/2012  as

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against the MoEF State Pollution Control Board and the Department of

Mines and Geology with the following prayer:   

“1. Order or direction ordering the Respondent to close

down the mines in the State of Goa which do not have

valid EC following the Judgment in Shankar Jog versus

M/s Talaulicar and Sons Private Limited, with immediate

effect.

2.  Order  or  direction ordering  the Respondent  to pay

compensation under section 15 of the National  Green

Tribunal Act 2010 to the Environmental Relief Fund for

its  failure  to  take  timely  action  closing  the  violating

mines  in  the  State  of  Goa  which  has  lead  to

environmental degradation.

3. Costs.”

14. In  the  body  of  the  application,  the  Respondent-Shankar

Raghunath Jog has made reference to the environmental clearance

relating to the mining project of the appellant dated 25.11.2005 and

the subsequent order dated 18.10.2007 by which the conditional grant

of EC for two years came to be deleted. He also made reference to

the expiry of the EC itself and the grant which occurred on 25.11.2010

while praying for the above directions.

15. It is relevant to note that the appellant was not impleaded as a

party  in  the  said  O.A.  No.22/2012.  In  the  grounds  of  the  said

application  there  was  a  general  allegation  against  the  official

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respondents including MoEF that inspite of the judgment impugned in

the civil appeal (viz) Public Interest Litigation Writ Petition No.6/2011

dated 12.08.2011 the official respondents failed to take any steps for

closing down the mines which violated the statutory provisions. In the

light of the present judgment and the directions which we have issued,

we are of the view that the O.A. No.22/2012 pending on the file of the

Green  Tribunal  will  not  survive  inasmuch  as  Respondent-Shankar

Raghunath  Jog  mainly  placed  his  prayer  based  on  the  impugned

judgment when he filed the O.A. before the Green Tribunal.  Since we

have set aside the impugned judgment in these Appeals, the whole

basis of Respondent-Shankar Raghunath Jog’s grievance in the O.A.

filed before the Tribunal  does not survive.  Therefore,  while allowing

the Transfer Petition and direct the O.A. No.22/2012 to be transferred

to  this  Court,  the  O.A.  shall  stand  dismissed  as  having  become

infructuous.

.….………………………………………..C.J.I [T.S. Thakur]

…..….………………………………………...J. [Fakkir Mohamed Ibrahim Kalifulla]

…..….………………………………………...J. [Uday Umesh Lalit]

New Delhi; July 12, 2016

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