T.N. Godavarman Thirumulpad vs Union Of India & Ors

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

2

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

3

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

4

(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

5

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,

6

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

7

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

8

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

9

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.

10 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

11

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

12

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

13

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

14

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

15

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

16

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.

17 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,

18

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

19

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

20

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

21

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.

22 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

23

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.

24 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.

25 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

26

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

27

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.

28 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

29

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,

30

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

31

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

32

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

33

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

34

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,

35

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

36

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

37

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

38

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

39

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

40

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

41

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

42

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

43

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

44

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

45

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

46

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

47

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

48

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

49

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

50

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

51

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

52

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

53

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

54

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

55

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

56

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

57

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

58

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

59

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

60

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.

61 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

62

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

63

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

64

(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.

65 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

66

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

67

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

68

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

69

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

70

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

71

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

72

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.

73 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

74

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)?

75 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,

76

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-

77 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

78

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

79

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

80

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

81

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.

82 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

83

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

84

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

85

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

86

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

87

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

88

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-

89 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

90

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

91

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

92

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

93

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

94

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

95

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

96

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

97

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?

98 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

99

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

100

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

101

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.

102 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

103

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

104

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.

105 (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.

106 (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.

107 (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.

108 (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.

109 (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"

110 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

111

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

112

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