WP (Civil) No. 9340/2009 Page 1 of 36 IN THE HIGH COURT OF DELHI AT NEW DELHI WRIT PETITION (Civil) No. 9340/2009 & CM APPL Nos. 7127/09, 12496/2009 UTKARSH MANDAL ..... PETITIONER Through: Mr. Sanjay Parikh with Mr. Ritwick Dutta and Mr. Rahul Choudhary, Advocates versus UNION OF INDIA ..... RESPONDENTS Through: Mr.A.S. Chandhiok, Addl. Solicitor General with Mr. Atul Nanda, Mr. Bhagat Singh and Mr. Nakul Sachdeva, Advocate for R-1/UOI. Mr. Bhavanishankar V. Gadnis, Advocate for R-2. Mr. Joaquim Reis with Mr. Santosh Paul, Ms. Sabina Paul and Mr. H.K. Bhat, Advocates for R-3. CORAM: HON’BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S.MURALIDHAR 1. Whether reporters of the local news papers be allowed to see the order? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the order should be reported in the Digest? Yes JUDGMENT 26.11.2009 S. Muralidhar J.(open court) 1. The challenge in this writ petition is to an order dated 14th October 2008 passed by the National Environmental Appellate Authority („NEAA‟), New Delhi dismissing the Appeal No. 12 of 2007 filed by the Appellant. The petitioners also seek the quashing of an order dated 26th July 2007 issued by the Ministry of Environment and Forests („MoEF‟), Government of India granting Environment Clearance to WP (Civil) No. 9340/2009 Page 2 of 36 M/s. Panduranga Timblo Industries, Margao, Goa, Respondent No.3 herein for renewal of the mining lease in respect of the Borga Iron Ore Mine (ML-II). The NEAA has in the impugned order affirmed the said order dated 26th July 2007 of the MoEF granting environmental clearance. Background facts 2. The background facts leading to the petition are that the Respondent No.3 is the lessee of Borga Dongrachem Fall Mine [71.1980 hectares, TC No. 29/52] and Sociedade Timblo Irmaos Ltd is the lessee of Oiteiro Borga Do Bairro Queri Mine [89.5 hectares, TC No. 34/50]. The said mines produce 0.20 MTPA iron ore and are located at Village Rivona, Tehsil Sanguem in District South Goa in Goa. In the 1980s the leases were operated by Respondent No.3 for iron, manganese and ferro manganese. The mines are stated to have been worked till 1994. With the increase in the demand for iron ore from countries like China, South Korea and Japan, there was renewed interest in re-starting the mining operations. It is stated that on 13th January 2006 a Combined Mining Scheme along with a Progressive Mine Closure Plan was approved by the Government of Goa. On 17th April 2006 the Respondent No.2 applied for renewal of the lease which was due on 22nd November 2007. WP (Civil) No. 9340/2009 Page 3 of 36 The EIA Notification 3. On 14th September 2006 the MoEF issued the Environment Impact Assessment („EIA‟) notification under Section 3 (1) and Section 3 (2) (v) of the Environment (Protection) Act 1986 („EPA‟) read with Rule 5 (3) (d) of the Environment (Protection) Rules 1986 („EP Rules‟). The projects or activities falling under Category „A‟ of the Schedule to the EIA notification were to mandatorily obtain “prior environmental clearance” from the MoEF. Category „A‟ of the Schedule includes mining. In terms of the said notification, environmental clearance was to be obtained not only for new projects but for expansion and modernization of an existing project as well. In particular where mining was to take place in the area beyond 50 hectares, prior EIA clearance of the MoEF was mandatory. For mines over a smaller area and which fell in category „B‟ of Schedule, approval was to be obtained from the State Environment Impact Assessment Authority. 4. In terms of the EIA Notification, the procedure for grant of EIA clearance involved: (i) Preparation by the project proponent (in this case, Respondent No.3) of an Environment Impact Assessment (EIA) Report and Environment Management Plan (EMP). (ii) For anyone wishing to raise any objection to the project, access to the Executive Summary and Environment Impact WP (Civil) No. 9340/2009 Page 4 of 36 Assessment Report at a designated place. (iii) Notice by the State Pollution Control Board for a mandatory public hearing to be published in at least two local newspapers at least 30 days prior to the public hearing. (iv) Evaluation of the EIA and EMP by the MoEF through its delegate, the specially constituted Expert Appraisal Committee (Mines) [„EAC (Mines)‟]. (v) grant of approval or rejection of the permission by MoEF. 5. On 6th October 2006 the Office of the Controller of Mines in exercise of the powers under Section 5(2) (b) of the Mines and Minerals Development and Regulation Act 1957 read with the order dated 28th April 1987 of the Government of India, approved the progressive Mine Closure Plan in respect of Borga Iron Ore Mine (TC No. 34/50). It is stated that on 17th October 2006 the Controller of Mines also approved the mining plan. On 14th November 2006 the Executive Summary of the mining project prepared by the Respondent No.3 both in English and in Konkani along with annexures, drawings and forms were submitted for the purposes of public hearing held in terms of EIA notification. 6. It is not in dispute that the Executive Summary was received by the Gram Panchayat of Village Rivona only on 22nd January 2007 i.e. WP (Civil) No. 9340/2009 Page 5 of 36 only nine days prior to the date of public hearing which was scheduled on 31st January 2007. It requires to be mentioned here that a notice dated 15th December 2006 was issued by the Goa State Pollution Control Board (GSPCB), Patto Panaji Goa in the Indian Express dated 18th December 2006 stating that public hearing was proposed to be conducted by the GSPCB in respect of as many as 14 projects. The Borga Iron Ore Mine project was mentioned at Sl. No.9 in the list of 14 projects in respect of which public hearings were to take place at the same venue i.e. Vithal Niketan, Vithal Devasthan, Sangauem, Goa. Public hearings in respect of five mines (including the Respondent No.3) were also to be held at the same date and time i.e. 31st January 2007 at 11.00 am. The notice mentioned that “the copies of the Executive Summary containing the salient features of the project in Konkani/English, and Rapid EIA/BMP report submitted by the project proponent”, i.e. Respondent No.3, would be made available for reference at six different offices including the Office of the Village Panchayat. Public Hearing and objections 7. At the public hearing on 31st January 2007, 67 persons submitted objections to the restarting of the Borga mine. The minutes of the proceeding dated 31st January 2007 signed by the Member Secretary GSPCB as well as the Additional Collector noticed that 237 members of the public were present at the hearing. It further recorded the WP (Civil) No. 9340/2009 Page 6 of 36 individual objections of several persons. It noticed as under: “67 nos. of applications have been received from the public objecting restarting of the mine. Not a single application nor a single member of the public was in favour of restarting of the mine due to grave environmental and social damage.” 8. On 2nd February 2007 GSPCB wrote to the MoEF forwarding a copy of the attendance sheet and minutes of the public hearing reflecting the concerns expressed by those present. A copy of the said letter was marked to Respondent No.3. A letter dated 1st March 2007 was written by the GSPCB to the Respondent No.3 giving copies of 79 letters/objections received from the public regarding the operation of the Borga mine. The Respondent No.3 was asked to note the objections and furnish its clarification to the concerned Regulatory Authority. 9. In the meanwhile on 9th March 2007 representation was made by 57 residents of Village Rivona and nearby villages to the Collector, South Goa purportedly supporting the renewal of the lease of the Borga mine. These persons protested that “they did not get the opportunity to put forth their views due to large noisy crowd brought by interested persons to oppose the mining project in the area of Rivona, Colomb and other parts, who did not allow others to speak.” WP (Civil) No. 9340/2009 Page 7 of 36 10. It needs to be noticed at this stage that the Goa State Agricultural Marketing Federation, a private association of agriculturists, was also apparently opposed to the grant of environmental clearance for the Borga mining project. In a letter dated 29th/31st July 2007 addressed to the Member Secretary of the GSPCB it inter alia stated: “We are also aware that the mining activity in Goa has brought down the production of horticulture and agriculture commodities. Employment generation due to mining is of temporary nature and destroys infrastructure of Agri-Horticulture Industry. Natural resources are destroyed in due course of time. Mining activity leaves behind huge quantity of rejection spreading debris in forest areas pasture lands and nullahs. Bicholim Sanguem and part of Quepem talukas are the live examples of this pollution, besides people are affected on health grounds. To avoid the above mentioned natural hazards, we, the Goa State Agricultural Marketing Board having more than ten thousand producer members (nearly 75% small and marginal farmers) hereby object the proposed mining activity which was totally idle for the last 25 years. It is therefore, requested not to grant the environmental clearance/renewal of lease to the activities of projects notified in the notice.” 11. On 9th April 2007 the Government of Goa wrote to the Inspector WP (Civil) No. 9340/2009 Page 8 of 36 General of Forests (Forest Conservation), Government of India, MoEF stating that the proposal of Respondent No.3 was recommended for clearance under Section 2 of the Forest (Conservation) Act 1980. Response of Respondent No.3 to the objections 12. On 15th April 2007 Respondent No.3 submitted to the MoEF the entire set of documents along with its application for environmental clearance. In Column 48 of this application Respondent No.3 responded to the objections raised at the public hearing. One of the objections pertained to a civil litigation involving Respondent No.3, and that the latter had not paid the compensation for the damage caused to the fields of certain villagers and also had not desilted the nallahs which had been polluted on account of the operation of the Borga mine. In response to this objection, Respondent No.3 acknowledged that there had been a dispute between it and one Premanath Damodar Prabhu Dessai, who had filed Special Civil Suit No. 28/80/A in the Court of the Civil Judge, Senior Division, Quepem. 13. From the papers enclosed with the application filed by Respondent No.3 for vacation of stay in these proceedings, it appears that the said suit was for damages and compensation on account of silting of the nallahs. In an appeal filed by the Respondent No.3 at an interlocutory WP (Civil) No. 9340/2009 Page 9 of 36 stage an order was passed by the High Court of Bombay, Panaji Bench, Goa on 24th June 1996 whereby an agreement was recorded that the Respondent No.3 would stop mining operations in such portion of the suit mine as would affect the suit properties and the first report of desilting would be filed before the Civil Judge, Senior Division, Quepem on 31st August 1996 and thereafter, every month till the desilting operation was completed. It was noted that the suit has been pending since 1980 and the trial court was directed to expedite suit and dispose of the same by June 1997. Thereafter on 21st June 1997 a compromise decree was passed in the suit whereby the Respondent No.3 agreed to pay to the Plaintiff a lump sum compensation of Rs. 8 lakhs as settlement of the damages in respect of the properties and also pay in addition Rs.4.50 lakhs for the work of desilting the nallahs. 14. In response to the objection raised at the public hearing that the High Court‟s directions had been ignored and that no compensation has been paid, Respondent No.3 stated in its application that all the claims had been settled with the legal representatives of the original plaintiff that payment had been made for desilting the nallahs and since then the mine was not under operation. It was undertaken that “any damages attributed to this mine working, if certified by revenue authorities/agricultural experts, adequate compensation will be paid and necessary protective measures will be undertaken to prevent any WP (Civil) No. 9340/2009 Page 10 of 36 further damage.” It was further submitted that “presently there are other mines operating within buffer zone and this mine is not under operation since 1994.” 15. As regards the other objections of Gram Sabha, the Respondent No.3 contended that these were politically motivated and that the project proponent was “committed to take all protective measures listed in EIA/EMP.” In response to the objection that the ground water was affected; that no water existed in the nallah due to operation of the mines; that the nallah had changed its course and that the springs for which the village was famous would be further destroyed, Respondent No.3 stated that since the mine was above the ground water table, the flow of nallah and its course had not changed and that since the mine was not in operation since 1994, no destruction was likely. As regards the objection that environmental clearance should not be granted in the larger public interest, Respondent No.3 stated that “larger interests of the people and national interests will be better served by operating mines carefully without affecting the environmental adversely.” As regards the objection that eco-tourism was going to be affected and export of fruits would be banned due to the stringent phyto-sanitary norms, the Respondent No.3 replied that there were a number of mines in operation in the neighbourhood and that there was no such effect. WP (Civil) No. 9340/2009 Page 11 of 36 16. The above objections raised in the public hearing, and the response thereto of Respondent No.3, along with other documents, were placed before the EAC (Mines). It was headed by one Mr. M.L. Majumdar. The EAC met on 14th June 2007 when, according to Respondent No.3, a representation was made to the EAC by a representative of Respondent No.3 regarding the features of the project as well as the EMP submitted by it. The EAC okayed the proposal for environmental clearance. A note was prepared by the Director in the MoEF on 19th July 2007 for approval of the Minister of State (MOS) for Environment and Forests. The approval was granted by the MOS, MoEF on 24th July 2007. On 26th July 2007, a letter was issued by the MoEF to Respondent No.3 granting environmental clearance subject to certain conditions. Proceedings before the NEAA 17. The grant of environmental clearance by the order dated 26th July 2007 was challenged by the Appellant before the NEAA by filing an appeal which has been dismissed by the impugned order. Before the NEAA, the Appellant challenged the grant of environmental clearance on three main grounds. The first was that the EIA report was defective/deficient. After considering the rival contentions of the parties on this aspect, the NEAA held that EIA report was not defective on the points raised by the Appellant. It was held that the EIA had largely covered “all the critical aspects of mining project.” WP (Civil) No. 9340/2009 Page 12 of 36 18. The second ground was that the public hearing conducted by the Respondent No.2 was defective. Inter alia it was contended that the Gram Panchayat received the executive summary only on 22nd January 2008 i.e. nine days prior to the date of public hearing and that this was in violation of the requirement of 30 days‟ advance notice as stipulated by the EIA notification dated 14th September 2006. This was countered by Respondent No.3 by contending that the letter dated 9th March 2007 addressed to the Collector, South Goa by 57 persons of the Village Rivona and neighbouring villages showed that they had supported the project considering the job opportunities available to the villages. It was further pointed out that “there are nine other mines operating in the area and none of them is being opposed by the Appellant and operation of this mine alone is subjected to scrutiny.” According to Respondent No.3 the objections to the mine were based on a 1984 report which had “since been made redundant by the orders of the High Court” in the civil suit referred to hereinbefore. As regards the objection of the Goa State Agricultural Marketing Federation it was stated that it had no statutory powers to have an opinion in respect of mining activities and therefore, the objections were motivated. 19. The NEAA held that in terms of para 2.4 of the Appendix IV to the EIA notification dated 14th September 2006 although there was an WP (Civil) No. 9340/2009 Page 13 of 36 obligation on the part of State Pollution Control Board to give publicity about the project within the State and make available the Summary of the Draft EIA report for inspection, there was no mandatory time frame prescribed for making the said documents available. The only time frame was that there should be minimum notice of 30 days of the public hearing which was required to be advertised in one national newspaper (daily) and one regional newspaper. It was accordingly held by making the Executive Summary available only nine days prior to the date of public hearing, there was no violation of EIA notification dated 14th September 2006 passed by the Respondent No.3. 20. The third issue dealt with by the NEAA was whether the project would have an adverse environmental impact on the neighbourhood. After weighing the arguments of the Appellant and Respondent No.3, the NEAA held that Respondent No.1 had prescribed “adequate and stringent safeguards in their EC Order with a view to protect the fragile environment of the Project Area. The contention of the Appellants therefore, fails to convince this Authority.” 21. Thereafter, the NEAA took up for consideration the submissions of learned counsel for the Appellant that the EAC (Mines) “has failed to consider the wholesale opposition of the participants of the Public Hearing to the Project as evident from the minutes of the EAC.” In WP (Civil) No. 9340/2009 Page 14 of 36 this regard the NEAA held in para 8.3 of the impugned order as under: “8.3 A perusal of these arguments reveals that the thrust of the argument of counsel for Appellant is that EAC (Mines), an instrument of Respondent 1 has not undertaken a detailed scrutiny of the wholesale opposition from the public and the concerned Gram Sabha and the reasons for overruling such opposing views should have been recorded in the Minutes of the EAC. The Authority finds that the said committee has done a detailed analysis of various technical and environmental issues it is not apparent on the face of the record that the “opposition of the Project” has passed such a rigorous test. In other words the said committee has not indicated any reasons for overruling the Public objection to the Project. As held by the Hon‟ble Supreme Court in M.J. Sivani and Others v. State of Karnataka and Others (1995) 6 SCC 289 “Reasons are the link between the order and the mind of its maker. When rules direct to record reasons, it is a sine qua non and condition precedent for valid order. Appropriate brief reasons, though not like a judgment, are a necessary concomitant for a valid order in support of the action or decision taken by the authority or its instrumentality or the state.” Further, the Authority notes that “the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. It also excludes the chances to reach arbitrary, whimsical or WP (Civil) No. 9340/2009 Page 15 of 36 capricious decision or conclusion.” The authority also would like to record the above much desired link between the issues and decision, as far as the public opposition to the project is concerned, is conspicuously missing in the minutes of the said committee. To this extent the argument of the appellants has come force. In view of the increasing environmental awareness of the public neither Respondent 1 nor any of its instruments like EAC‟s can afford to brush aside the public opposition to the various developmental/ instrumental projects and schemes. Further having enlarged the scope of public hearing into public consultation in their revised EAI notification dated 14th September 2006, Respondent 1 (MoEF) would do well to advice its various committees to record the reasons for their recommendations in an appropriate manner, especially in respect of public opposition to the Project. The Authority however holds that the above omission does not vitiate orders of Respondent 1 in this case in any manner.” 22. Before concluding the impugned order dismissing the appeal, the NEAA observed that the MoEF and its various Advisory Committees should indicate in their minutes/proceedings/orders “the link between the issues raised and decision thereon, and wherever the public objections are involved, they should clearly indicate such public concerns have been addressed while arriving at final WP (Civil) No. 9340/2009 Page 16 of 36 recommendations/decision.” Proceedings before this Court 23. While directing notice to issue in this writ petition on 11th September 2009, this Court by a detailed order stayed the operation of the impugned order of the NEAA and restrained the Respondent No.3 from carrying out any mining activity in Village Rivona, Tehsil Sanguem in District South Goa in terms of the permission granted by MoEF in its order dated 26th July 2007. Thereafter the Respondent No.3 filed CM Application No. 12496 of 2009 for vacating the stay order. Submissions of counsel 24. On behalf of the Appellant Mr. Sanjay Parikh and Mr. Rahul Choudhary, learned counsel submitted that the holding of the public hearing by the GSPCB was reduced to a farce particularly when none of the objections raised at the public hearing were dealt with by the EAC. It was submitted that the environmental clearance had been granted thereafter by the MoEF without application of mind and ought to be set aside. It is submitted that the spirit of requirement of 30 days‟ advance notice of public hearing in terms of para 3 of the Appendix IV of the EIA notification dated 14th September 2006 mandated making available the Executive Summary as well 30 days prior to the date of public hearing. With the Executive Summary being WP (Civil) No. 9340/2009 Page 17 of 36 made available only on 22nd January 2007 i.e. nine days prior to the date of the public hearing, the objectors could not be expected to respond meaningfully to the notice. Since the procedure for granting clearance was in violation of the letter and spirit of the EIA notification, the impugned order of the MoEF granting EIA clearance stood vitiated. 25. It was next submitted by learned counsel for the petitioners that Mr.Majumdar, the Chairperson of the EAC (Mines) which had cleared the proposal for grant of EIA clearance was at the relevant time himself a Director of four mining companies, viz., Uranium Corporation of India Limited, R.B.G. Minerals Industries Limited, Hindustan Dorr-Oliver Limited and Adhunik Metaliks Limited. This was confirmed by a letter dated 7th August 2009 sent by the MoEF in response to an application under Right to Information Act 2005 („RTI Act‟). A copy of the said letter has been placed on record. This letter additionally informed that the Additional EAC on mining had cleared 410 mining projects till June 2009 and that four site visits were undertaken by the Additional EAC Committee on mining till date. The fairness of the procedure adopted was doubted on the above ground as well. 26. On behalf of the Respondent No.1 Union of India, Mr. A.S. Chandhiok, learned Additional Solicitor General (ASG) submitted WP (Civil) No. 9340/2009 Page 18 of 36 that although