LAFARGE UMIAM MINING PVT. LTD. T.N. GODAVARMAN THIRUMULPAD v. UNION OF INDIA & ORS.

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1 A 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 B 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- e 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 0 of Environmental Clearance dated 9.8.2001 existence of the forest land was not established. If it had been so established / then the project proponent had to obtair forest clearance under the 1980 Act also.

13Copy pinpoint13. At the outset, Shri F.S. Nariman, learned senior counsel appearing on behalf of Mis. 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 F 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 G 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. H There is no agricultural activity in the area as thin soil cover is

LAFARGE UMIAM MINING PRIVATE LIMITED 1003 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

unable to sustain crops. That, even according to the NEHU A 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 B 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 _ c "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 0 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 every State Government seeking prior approval under Section 2 of the 1980 Act shall send its proposal to the Central E ' 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 H

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A concerned Nodal Officer along with the requisite information before undertaking any non-forest activity on the forest land; after receiving the 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 B 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 c 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 0 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 E Meghalaya vide notification dated 8.1.1997 with the Principal Chief Conservator of Forests as its Chairman. On 10.2.1997, the State of Meghalaya, on the subject of "Order of the Supreme Court dated 12.12.1996" wrote to the Khasi Hills Autonomous District Council that the land in question was reckoned by the F 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, G 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

LAFARGE UMIAM MINING PRIVATE LIMITED 1005 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

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 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.

14Copy pinpoint14. According to the learned counsel, what has happened in the present case is that almost after 9 years there was a C change of view on the part of MoEF, i.e., between 1997 and

2007. Under this change of view of MoEF, the report of t~e 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 D · 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 E 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 India Pvt. Ltd.) submitted by the project proponent describes the land as waste land which was not a fact. Thus, according to the Chief F 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 G 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 Mis. Lafarge had failed to take forest clearance, they were not at H

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A 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 B on 3.5.2007 forest clearance may be considered. Thus, according to the learned counsel, there was no collusion between M/s. Lafarge and the DFO as alleged to get the certificate dated 13.6.2000.

15Copy pinpoint15. 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 D 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 E ·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 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 Mo,EF in September, 1997. To the same effect one finds reference in the Executive Summary of the EIA

LAFARGE UMIAM MINING PRIVATE LIMITED 1007 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

of proposed Limestone Mining of 9.4.1998 by ERM. According A 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 B 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 c submitted by the project 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 0 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 E 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 proceediRgs of the public hearing conducted for proposed limestone mining project of M/s. LMMPL, Nongtrai. Thus, according to the learned counsel there is no merit in the submission advanced on behalf of SAC that public hearing as per EIA Notification of 1997 did not take place.

16Copy pinpoint16. Shri Nariman, learned counsel appearing on behalf of .M/s. Lafarge further submitted that on facts and circumstances H

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A 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". s In this connection our attention was invited to the application dated 23.9.1998 made by Mis. 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 c 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 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 0 located on forest land.

17Copy pinpoint17. 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 E Act, an application was filed by Mis. 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 F CCF (C) to the effect that Mis. 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 Mis. Lafarge for not seeking Forest Clearance·earlier. Accordingly, on 19.6.2007 a formal proposal was made by G 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 Mis. Lafarge in Khasi Hills Division under Section 2 of the 1980 Act. Thus, all necessary steps were taken, as indicated hereinabove, by M/s. Lafarge which ultimately culminated in the Environmental Clearance by MoEF

i LAFARGE UMIAM MINING PRIVATE LIMITED .1009 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

dated 19.4.2010 and Forest Clearance dated 22.4.2010. In the circumstances, learned counsel submitted that I.A. 1868/2007 preferred by Mis. Lafarge be allowed.

Issues

18(i) Nature of land; 8

(ii) Whether ex post facto environmental and forest clearances dated 19.4.201 O and 22.4.201 O respectively stood vitiated by alleged suppression by M/s. Lafarge regarding the nature of the land. In C 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 o basis of "absence of forest" with full knowledge that the project site was located on forest land.

Findings

(a) Legai Position. E

19Copy pinpoint19. 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 F 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 developmenf'. It is equally well-settled by the decision of this Court in the case of G Narmada Bachao Andolan v. Union of India and Others [(2000) 10 sec 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 H

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A identification would again depend on undertaking of due diligence exercise). In such cases, the Margin of Appreciation Doctrine would apply.

20Copy pinpoint20. 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.

D (b) Nature of the land

21Copy pinpoint21. 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 E 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 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 cf 'imestone 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

LAFARGE UMIAM MINING PRIVATE LIMITED 1011 TN. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

export it to counterparts in Bangladesh, often illegally. These A 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 B with 86% population being tribal. According to the NEHU Report of 1997, approximately 60 settlements consisting of 50-200 inhabitants each with a total estimate population of 16500 persons exist within 10 km radius of the proposed mining site. Under an agreement dated 29.9.1993 (lease agreement), the c village Durbar represented by a Special Committee headed by the Headman as lessor granted lease of the limestone quarry in Nongtrai to Mis. 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 0 Nongtrai. Coming to the topography of the area, one finds that the limestone bearing area around Nongtrai and Shella villages falls under Karst topography. Thi.s 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 E 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 around Nongtrai and Shella falls on the southern fringe of F 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 G 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 H

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A. 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 s 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 unorganized sectors and, thus, it was decided to enter into the lease with c 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)

D (c) Validity of ex post facto clearance

22Copy pinpoint22. An important argument 11as 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 E 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 Mis. Lafarge and as a sequel the subsequent revised environmental clearance dated 19.4.2010 and forest clearance (Stage - I) F 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 forest and no forest clearance ought to have been granted by MoEF because of the special ecological G 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 Mis. 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 H

LAFARGE UMIAM MINING PRIVATE LIMITED 1013 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

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 c . cover mostly sparse. Thus, according to SAC and CEC, the undisputed position emerging from the record that 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 0 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 E 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: F (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 G perspective. The scope of enquiry is limited to pollution impacts. Obtaining such consents and permits are essential but they are not a substitute for compliance with other environmental laws. H

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A (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 B 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 c 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 · D 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.

23Copy pinpoint23. 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 H

LAFARGE UMIAM MINING PRIVATE LIMITED 1015 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJ!.]

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 co\msel, 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 c requirement for payment of NPV does not automatically mean that environmental clearance is to be granted.

24Copy pinpoint24. 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 D 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 Mis. 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 E the decision of MoEF based solely on the declarations made by the project proponent(s)?

25Copy pinpoint25. At the outset, one needs to take note of Section 2 of the 1980 Act which stipulates prior approval. That Section refers F 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 G 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 Govemment comes into picture. Thus, prior determination of what constitutes "forest land" is required to be done. By an H

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A 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 TN. 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 s irrespective of whether they are so notified, recognized or classified under any law and also identify areas which were earlier forests but stand degraded, denuded or cleared. The Committee was to be headed by the Principal Chief Conservator of Forests. This order dated 12.12.1996, thus, c 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 0 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 E 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 F Officer along with the requisite information before undertaking any non-forest activity on the forest land and after receiving the said proposal and if the State Government is satisfied that the proposal required prior approval under Section 2, the State Government had to send the said proposal to the Central G 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 Mis. LMMPL. That project proponent had obtained EIA clearance given by MoEF dated H 9.8.2001 which clearance stood transferred to M/s. Lafarge only

LAFARGE UMIAM MINING PRIVATE LIMITED 1017 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

on 30.7.2002. While granting environmental clearance dated A 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 B 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 reckoned as non- forest land and the Council was asked to clarify whether the c 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 0 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 E 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 F 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 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 G 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 H

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A 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 B 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, Mis. c Lafarge was not at fault because the certificate indicating absence of forests was given by Khasi Hills Autonomous District Council. In fact the letter dated 11.5.2007 further goes to state that the activities of Mis. Lafarge will provide employment to a large number of local tribals and rural people and consequently the application.for forest clearance made by 0 Mis. 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 notifica1ion was issued by the State Pollution Control Board constituting an Environmental Public Hearing Panel to evaluate and assess the documents E submitted by Mis. 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. F 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 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 Mis.

LAFARGE UMIAM MINING PRIVATELIMITED 1019 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

Lafarge . .In the meeting, the economic benefits of the local A · people from the project prpponent 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. According to Environmental Law and Policy in India by Shyam. Divan and Armin Rosencranz, ''many native .and indigenous 0 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 E 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. F 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 G people know how to keep the balance between economic and environmen~ 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. H

1020 SUPREME COURT REPORTS [2011] 7 S.C.R.

A 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 8 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 C 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 attended by the 0 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 "foresr and the tree count emerging from the High Powered H Committee {HPC) Report which establishes that the area

LAFARGE UMIAM MINING PRIVATE LIMITED 1021 TN. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

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 c 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 0 of the State of Megha'laya wherein an inventory of the existing . I trees was prepared based on their nature and girth.The said record confirms that the unbroken area has less than 25 trees per acre having girth of more than ·120 ems 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 E 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 G also existed in the mind of KHADC when it gave certi_ficates 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 H

1022 SUPREME COURT REPORTS [2011) 7 S.C.R.

A view prevailed with the MoEF between 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 B account of non-application of mind or on account of suppression of material facts by Mis. Lafarge as alleged by SAC.

26Copy pinpoint26. Similarly, it is not possible for us to hold on the above facts that ex post facto clearances have been granted by MoEF C 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 D 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- E Cherrapunjee Road which are operating without 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-

F 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 oMhe order of this Court dated

LAFARGE UMIAM MINING PRIVATE LIMITED 1023 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.)

12.12.1996 and the ex post facto clearance has now been granted on that basis permitting diversion of forest by granting Stage-I forest clearance subject to compliance of certain conditions imposed by MoEF and by this Court. On the question of non-application of mind by the MoEF, we find that at various stages despite compliances by the project proponent and 8 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 E!A Notification, the then project proponent made an application to MoEF for grant of environmental clearance. With that C 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. D application. to the project proponentasking; 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 E additional conditions. Similarly, despite the project proponent making application for environmental clearance on 17.4.2000 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 F "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 G 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, H

1024 SUPREME COURT REPORTS [2011] 7 S.C.R.

A 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 8 Committee (HPC) was called for by MoEF which was submitted on 5.4.2010. There were four terms of references given to the HPC. According to the report, all conditions imposed with regard to environmental clearance had been substantially complied with by Mis. Lafarge. The report also refers to the C steps taken by Mis. 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 D further states that the indigenous and native people are satisfied with the credentials of Mis. 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 Mis. Lafarge to continue mining. The report further notes that most of the members of the SAC were not the residents of the locality (Shella Village) and were living in Shillong while occasionally visiting Shella. The report further states that 200 persons participated in a long interaction with the members of HPC. The report further states that in fact the villagers became very upset in the apprehension of Mis. G 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, H still it is not the fault of Mis. Lafarge. Thus, under the above

LAFARGE UMIAM MINING PRIVATE LIMITED 1025 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

circumstances, we are satisfied that the parameters of A 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 B 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 clearance granted by MoEF.

27Copy pinpoint27. Before concluding, we would like to refer to our order C 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 sec 1] with regard to commercial exploitability D ·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: E

"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 F 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. G Such payment shall be made in totality in one instalment within 4 weeks from the date of the order.

2, An SPVshall be set up under the Chairmanship H

1026 SUPREME COURT REPORTS [2011] 7 S.C.R.

A 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 B 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. c

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 Repurt before this Hon'ble Court detailing all the work done by it in relation to the welfare projects mandated upon it including the development of health, education, economy, irrigation and agriculture in the project area of 50 kms. solely for the local community and welfare of Tribals.

5. The User Agency will comply with all the conditions imposed on it earlier as well as further recommendations made by the Committee constituted by the MoEF under the order dated 30th march, 2'010, including, in particular, the following:

G (a) It shall prepare a detailed Catchment Area Treatment Plan.

(b) It shall explore the use of surface miner technology. H (c) It shall monitor ambient area quality as per

LAFARGE UMIAM MINING PRIVATE LIMITED 1027 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.)

New National Ambient Air Quality Standards. A

(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 8 disorganized and unscientific and ecologically unsustainable mining in the area.

(f) It shall prepare a comprehensive forest rehaqilitation and conservation plan covering C . 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 · 0 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. E

6. The MoEF shall take a final decision under the Forest Conservation Act, 1980 for the revised environmental 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. F list on 26.04.2010 at 2.00 p.m."

28Copy pinpoint28. 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 G seeks to exploit it on scientific lines. The minutes of the meeting of the Village Durbar and the submissions filed by the Durbar of indicate the exercise 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. H

1028 SUPREME COURT REPORTS [2011] 7 S.C.R.

29Copy pinpoint29. 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

30Copy pinpoint30. 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 principlei:; 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? 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 H

LAFARGE UMIAM MINING PRIVATE LIMITED 1029 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

in (2011) 1 All ER 476 (paras 14 to 16). A · . 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 8 "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 C and the report of Shri B.N, Jha dated 5.4.2010 (HPC) (each one of which refers to 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). D 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

32Copy pinpoint32. Accordingly, we see no reason to interfere with the decision of MoEF granting site clearance dated· 18.6.1999, ElA G 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 H

1030 SUPREME COURT REPORTS . [2011] 7 S.C.R

A 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

B 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 c 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 Policy, 1988 which lays down far- reaching principles must necessarily govern the D · grant of permissions under Section 2 of the Forest (Conservation) Act, 1980as 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 E 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 F Forest Policy, 1988 read with the Forest (Conservation) Act, 1980. Section 3 of the Environment (Protection) Act, 1986 confers a power coupled with duty and, thus, it is incumbent . on the Central Government, as hereinafter indicated, to appoint an Appropriate Authority, preferably in the form of Regulator, at the State and at the Centre level for ensuring implementation of the National Forest Policy, 1988. The difference between a regulator and a court must be kept in mind. The court I tribunal is basically an authority

LAFARGE UMIAMMINING PRIVATE LIMITED. 1031 T.N, GODAVARMAN.THIRUMULPAD v. U.0.1 {S.H KAPADIA, CJI.] . ·. . . . -. . -: . . . .

which reacts to a given situation brought to its notice A· 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. B 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 c disturbed by serious depletion of forest, conservation of natural heritage of the country by preserving the remaining natural forests with the vast variety offlora and fauna, checking soil erosion •. and denudation in the catchment areas, checking the ext~nsion of sand-dunes; increasing the forest/ tree cover in the country and encouraging efficient ·. utilization oCforest produce and maximizing ·substitution of wood. Thus, we are of the view that under Section 3(3) of the Environment (Protection) Act, 1986, the Central Government E should appoint a National Regulator for appraising projects, enforcing enviro-nmental . conditions for approvals and to impose penalties on polluters. There is one more reason for having a regulatory mechanism in place. F 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 · G 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 H

1032 SUPREME COURT REPORTS [2011] 7 S.C.R.

A Institutions who though accredited submit answers according to the Terms of Reference propounded by the project proponent. We do not wish to cast any doubt on the credibility of these Institutions. However, at times the court is faced with conflicting B 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 c 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. D (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.

(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 assist the Expert Appraisal Committee.

(iv) At present, there are six regional offices in the country. This may be expanded to at least ten. At H each regional office there may be a Standing Site

LAFARGE UMIAM MINING PRIVATE LIMITED 1033 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

Inspection Committee which will take up the work of ascertaining the position of the land (namely whether it is forest land or not). In each Committee there may be one non-official member who is an expert in forestry. If it is found that forest land is involved, then forest clearance will have to be applied for first.

(v) Increase in the number. of Regional Offices of the Ministry from six presently located at Shillong, Bhubaneswar, Lucknow, Chandigarh, Bhopal and Bangalore to at least ten by opening at least four new Regional Offices at the locations to be decided in consultation with the State/UT Governments to facilitate more frequent inspections and in-depth scrutiny and appraisal of the proposals. D (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.

(vii) Creation and regular updating of a GIS based decision support database, tentatively containing inter-a/ia the district-wise details of the location and · G 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 H

1034 SUPREME COURT REPORTS [2011] 7 S.C.R.

A (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 B 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 c part of the proposed decision support database.

(viii) Orders to implement these may, after getting necessary approvals, be issued expeditiously.

(ix) The Office Memorandum dated 26.4.2011 is in D 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 E 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 F 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 G compliance with the environmental and forestry clearance granted to .them.

(xi) All minutes of proceedings before the Forest Advisory Committee in respect of the Forest H (Conservation) Act, 1980 as well as the minutes of

LAFARGE UMIAM MINING PRIVATE LIMITED 1035 TN. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.)

proceedings of the Expert Appraisal Committee in A 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. B 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 c 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 D Committee to identify the areas which are "forests" 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 E 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, F 1980.

(xiii) Incorporating appropriate safeguards in the Environment Clearance process to eliminate chance of the grant of Environment Clearance to projects involving d.iversion of forest land by G 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. H

1036 SUPREME COURT REPORTS [2011] 7 S.C.R.

A (xiv) The public consultation or public hearing as it is commonly known, is a mandatory requirement of the environment clearance process and provides an effective forum for any person aggrieved by any aspect of any project to register and seek redressal B 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 c consultation with the States (given that forests fall under entry 17A of the Concurrent List).

33Copy pinpoint33. 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 implementation of these Guidelines, MoEF will file its compliance report within six months. F R.P. lnteralocutary applications disposed of.