IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 3659/2009 alongwith CWPs No. 843/2010, 1564/2010, 1567/2010, 1571/2010 and 2292/2010 Reserved on: 29.09.2010 Decided on: 13.12.2010. 1. CWP No. 3659/2009 Harish Chander and another. ...Petitioners. Versus State of Himachal Pradesh and others. ... Respondents. 2. CWP No. 843/2010 Dharam Singh Prasher and others. ...Petitioners. Versus State of Himachal Pradesh and others. ... Respondents. 3. CWP No. 1564/2010 Upender Sen. ...Petitioner. Versus State of Himachal Pradesh and others. ... Respondents. 4. CWP No. 1567/2010 Harish Chander. ...Petitioner. Versus State of Himachal Pradesh and others. ... Respondents. 5. CWP No. 1571/2010 Trahru and another. ...Petitioners. Versus State of Himachal Pradesh and others. ... Respondents. 2 6. CWP No. 2292/2010 Man Singh and others. ...Petitioners. Versus State of Himachal Pradesh and others. ... Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. CWP No. 3659/2009 For the petitioners Mr. Anand Sharma, Advocate. For the Respondents: Mr. Sandeep Sharma, Asstt. Solicitor General of India for respondent No.1. Mr. Vivek Singh Thakur, Additional Advocate General for respondents No.2 to 6. Mr. Y.W. Chauhan, Advocate vice counsel for respondent No.7. Mr. Ashok Aggarwal, Senior Advocate with Mr. Atul Jhingan, Advocate for respondent No.8. CWP No. 843/2010 For the Petitioners: Mr. Ashok Sharma, Advocate. For the respondents: Mr. Vivek Singh Thakur, Addl. Advocate General for respondent No.1. Mr. Ravinder Thakur, Central Government Counsel for respondent No.2. Mr. Y.W. Chauhan, Advocate vice counsel for respondent No.3. Mr. Ashok Aggarwal, Senior Advocate with Mr. Atul Jhingan, Advocate for respondent No.4. CWPs No. 1564 and 1571 of 2010: For the petitioners Mr. Anand Sharma, Advocate. For the respondents Mr. Vivek Singh Thakur, Addl. A.G. for respondents No. 1 to 3. Mr. Ashok Aggarwal, Senior Advocate with Mr. Atul Jhingan, Advocate for respondent No.4. Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 3 CWP No. 1567/2010 For the petitioners Mr. Anand Sharma, Advocate. For the respondents Mr. Vivek Singh Thakur, Addl. A.G. for respondents No.1 to 4. Mr. Ashok Aggarwal, Senior Advocate with Mr. Atul Jhingan, Advocate for respondent No.5. CWP No. 2292/2010 For the petitioners Mr. J.S. Bhogal, Sr. Advocate with Mr. Nand Lal Chauhan, Advocate. For the respondents Mr. Vivek Singh Thakur, Addl. A.G. for respondents No. 1 and 2. Mr. Ashok Aggarwal, Senior Advocate with Mr. Atul Jhingan, Advocate for respondent No.3. Mr. Sandeep Sharma, Asstt. Solicitor General of India for respondent No.4. Mr. Y.W. Chauhan, Advocate vice counsel for respondent No.5. Per Justice Rajiv Sharma Since common questions of law and facts are involved in all these petitions, the same were taken up together for hearing and are being disposed of by a common judgment. CWPs No. 3659/2009, 1564/2010, 1567/2010 and 1571/2010 2. The facts of above mentioned writ petitions are common. However, in order to maintain clarity in the facts, we have taken the facts of CWP No. 3659/2009, which has been filed prior in time. 3. According to the petitioners, Bandli Wild Life Sanctuary and Tarambri DPF were declared as Wild Life Sanctuary under sections 18 and 26 of the Wild Life (Protection) Act, 1972. The total area of these sanctuaries is 451 kilometers. 4 Memorandum of understanding was executed by Harish Cement Limited on 28.7.1995. Government of India rejected the proposal for setting up of the cement plant between Chhajjwar and Lag villages on 8.6.1999. Harish Cement Limited submitted application seeking environment clearance in the month of January, 2002. The proposal was returned by the Government of India on 6.7.2004 (Annexure P-15) vide letter dated 17.6.2004 and Harish Cement Limited was directed to prepare EIA and EMP report and it was also ordered that fresh public hearing shall be conducted as per the provisions of EIA notification 1994 as amended subsequently. Thereafter the-then Chief Minister requested the Government of India to waive off the condition of public hearing vide D.O. letter dated 29.3.2005 (Annexure P-17). The Government of India on the basis of Annexure P-17 waived off the condition of fresh public hearing vide letter dated 28.7.2005 (Annexure P-18). Thereafter ‘no objection certificate’ was issued by the Government of India on 11.11.2005 (Annexure P-19). The Government of India also granted permission for diversion of forest land measuring 173.00 hectares as per letter dated 18.11.2005. The Ministry of Environment and Forests also reduced the distance from 800 meters to 200 meters vide letter dated 20.2.2009 by imposing certain conditions, including the condition that the environment clearance was subject to the final orders of the Hon’ble Supreme Court in the matter of “Goa Foundation versus Union of India” and it was also subject to clearance under the Wild Life (Protection) Act, 1972 from the Chief Wild Life Warden, Government of Himachal Pradesh. 5 According to the petitioners, the distance between the boundary of Cement Plant site and Bandli Wild Life Sanctuary is only 500 meters and not 4 kilometers. Petitioners have prayed for quashing of Annexures P-18, P-19, P-22 and P-25. 4. According to the reply filed by respondents No.4 and 6, notification under section 4 of the Act was issued on 29.2.2008 and 9.7.2008. Notifications under sections 6 and 7 were issued on 31.1.2009 and 7.7.2009. 5. According to the reply filed by respondent No.7, public hearing was held on 19.8.2002 at Maloh and Chambi and the proceedings were sent to the State Government on 12.9.2002. The State Government referred the matter to the Ministry of Environment and Forests, Government of India on 18.12.2002 and conditional consent was granted by respondent No.7 on 10.1.2003. 6. Respondent No.8 has also filed detailed reply. According to this reply a memorandum of understanding was executed between the company and the State on 28.7.1995 and thereafter the application was submitted on 23.9.1995 to the Site Appraisal Committee. The mining lease was granted in favour of the company on 16.1.1999 and the new site was selected on 6.6.2002. Public hearing was conducted on 19.8.2002. The Union of India agreed to the proposal of the respondents to waive off the condition of public hearing and thereafter environment clearance was accorded on 11.11.2005. Case for development of forest land measuring 173 hectares was approved and supplementary memorandum of understanding was entered 6 between the State and company on 13.3.2007. Distance was also reduced from 800 meters to 200 meters by the Government of India. Notification under section 4 was issued on 29.2.2008 and the same was modified on 19.9.2008. Respondent No. 1 has granted permission for mining operation. 7. Respondents No.3 and 5 have also filed separate reply. According to the contents of reply filed by respondents No. 3 and 5, the distance between proposed site and Bandli Wild Life Sanctuary is 5-6 kilometers and 2-3 kilometers from Tarambri DPF. The total area of DPF Tarambri is 204.98 hectares and the permission for mining was granted on 15.9.2005. CWP No. 843/2010: 8. Material facts necessary for the adjudication of this petition are that the land of the petitioners is proposed to be acquired for establishing the cement plant of respondent No.4, i.e. M/s Harish Cement Limited. Process for setting up the plant and acquiring the land was initiated in the year 1993 when M/s Harish Chandera (India) Private Limited (Harish Cement Limited) (predecessor-in-interest of respondent No.4) had approached the State of Himachal Pradesh to set up a cement plant in Nalini Maloh area in Tehsil Sunderngar, District Mandi. Memorandum of Understanding was entered into between respondent No.1 and respondent No.4 on 28.7.1995. According to the petitioners, respondent No.4 has not supplied correct data in the application while seeking permission from the Government of India. According to the petitioners column Nos. 3.3 and 3.8 did not reflect true facts. According to the petitioners, respondent No.4 7 was granted permission by the Government of India on 11.11.2005 though the area of cement plant and mining is in close proximity to Bandla Wild Life Sanctuary as well as Tarambri DPF. It is further averred in the petition that acquisition of the land for setting up the plant is in contravention of the Land Acquisition (Companies) Rules, 1963 (hereinafter referred to as ‘the Rules’ for brevity sake). According to the petitioners, no inquiry, as visualized under rule 4 of the Rules was conducted. They have prayed for quashing of Annexure P-5 dated 11.11.2005 with a further prayer that their land may not be acquired for setting up of cement plant by respondent No.4. 9. Respondent No.1 has filed reply to the petition. According to the contents of the reply, the State Level Site Appraisal Committee had initially rejected the Nalini Maloh area and thereafter it had approved the site of Chhajjwar and Lag. However, this site was also rejected by the Government of India vide decision dated 8.6.1999. Thereafter the permission was accorded by the Government of India and notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’ for brevity sake) was issued on 29.2.2008 for acquiring 1004-03-01 bighas of land and thereafter notifications were issued under sections 6 and 7 of the Act on 31.1.2009 and 7.7.2009. 10. Respondent No.3 has also filed separate reply. According to the contents of the reply of respondent No.3, public hearing was conducted on 19.8.2002 for mining site and plant site and the proceedings were sent to the State Government on 8 12.9.2002. The State Level Environment Impact and Assessment and Monitoring Committee was constituted on 9.9.2002 and it referred the matter to the Government of India vide letter dated 18.12.2002. The conditional consent was granted on 10.1.2003, which was renewed on 6.3.2010. Respondent No.3 has also highlighted the precautions which are required to be taken into consideration by respondent No.4 while granting conditional consent on 10.1.2003. 11. Respondent No.4 has also filed a detailed reply. Respondent No.4 has submitted an application before the State Level Environment Impact and Assessment and Monitoring Committee on 23.9.1995. It was considered and rejected on 9.11.1995. Fresh application was submitted on 2.3.1996 for areas falling between Chhajjwar and Lag. The consent was granted by respondent No.3 on 14.3.1996. The mining lease was granted by the State on 16.1.1999. According to the contents of the reply, the distance between Bandli Wildlife Sanctuary and the present site is 5.65 KMs. Respondent No.4 had prayed for conversion of forest land to the extent of 467.32 hectares. However, the permission was granted for diversion of 173 hectares on 18.11.2005. The mining lease was executed on 19.12.2006 and the same was registered on 31.1.2007. Supplementary memorandum of understanding was signed with the State on 13.3.2007. Respondent No.4 moved application seeking reduction of distance from 800 meters to 200 from Tarambri DPF. The permission was accorded on 20.2.2009. According to the reply, 61% land owners have executed the agreement and the 9 respondent No.4 has undertaken to abide by notification dated 11.6.2009. Respondents have undertaken that the plant will use “Bag filter house technology” and it has already incurred expenditure of Rs. 90 crore and is supposed to invest a sum of Rs. 300 crore. 12. Respondent No.4 has also moved application bearing CMP No.5670/2010 to bring to the notice of the Court that petitioner No.1 has given consent on 18.10.2007 and petitioner No.3 has given consent on 13.10.2007. Petitioners have filed reply to CMP No. 5670/2010. According to the reply filed by the petitioners, the consent was conditional as far as petitioner No.3 is concerned and petitioner No.1 has never given the consent. CWP No. 2292/2010: 13. The case of the petitioners, in a nut-shell, is that respondent-State has not complied with the mandatory rule 4 of the Land Acquisition (Companies) Rules, 1963 as well as sections 40 and 41 of the Land Acquisition Act, 1894. According to the petitioners they have submitted objections on 26.7.2008 and 27.7.2008. Notification under section 5-A of the Act was issued on 27.9.2008 and 28.9.2008. Respondent No.2 has submitted the report to the State Government on 9.2.2009. Thereafter notifications under sections 6 and 7 were issued on 31.1.2009 and 7.7.2009. According to the petitioners, neither any enquiry has been held nor the notices were issued to them under rule 4 of the Land Acquisition (Companies) Rules, 1963. According to them, report Annexure P-3 dated 9.2.2009 is bad in law and no notifications could be issued under sections 6 and 7 of 10 the Act without complying with the mandatory provisions of rule 4 of the Land Acquisition (Companies) Rules, 1963. 14. Respondent No.1 has filed separate reply. According to the contents of this reply, notification under Section 4 of the Act was issued on 9.7.2008 and thereafter notifications were issued under sections 6 and 7 of the Act and the agreement was entered into State Government and Harish Cement Limited on 30.6.2009 under section 41 of the Act. 15. According to the reply filed by respondent No.3, notification under Section 4 of the Act was issued on 9.7.2008 and the agreement was entered into under section 41 of the Act on 16.1.2009 and thereafter notifications under sections 6 and 7 were issued on 31.1.2009 and 7.7.2008. Respondent No. 1 issued notification under Section 4 on 9.7.2008 for acquiring the land for mining purpose and the agreement was executed under section 41 on 30.6.2009 and thereafter notifications under sections 6 and 7 were issued on 31.1.2009 and 7.7.2009. Respondent No.4 has accorded permission to reduce the distance from 800 meters to 200 meters. According to respondent No.3, land has been acquired strictly as per the provisions of law. It is further averred that joint inspection was carried before various notifications were issued under the Land Acquisition Act, 1894 on 13.04.2007 and thereafter the Deputy Commissioner has issued inescapability certificate on 01.06.2007 and the land acquisition committee was reconstituted on 7.6.2009. 11 16. According to respondent No.2, land has been acquired strictly as per the provisions of the Land Acquisition Act, 1894 and Land Acquisition (Companies) Rules, 1963. 17. What emerges from the layers and layers of the facts projected before this Court is that Harish Cement Limited had decided to set up a cement plant in Tehsil Sundernagar, initially, at village Nalini Maloh and its surrounding areas. However, this proposal was turned down by the State Government. Thereafter the State Government accorded permission to set up the cement plant between Chhajwar and Lag villages. However, the Government of India rejected this proposal on 08.06.1999. Memorandum of understanding was also entered between the State and the company on 28.7.1995. Harish Cement Limited submitted application for environment clearance to the Government of India. The Government of India informed the company that it should prepare EIA and there shall also be fresh public hearing. Case of the respondent-company, in a nutshell, is that since public hearing had already taken place, there was no need for fresh public hearing. The condition of fresh public hearing was waived off by the Government of India on 28.7.2005 and thereafter environmental clearance was granted on 11.11.2005. Permission was also granted for mining on 15.9.2005 and the distance of 800 meters was reduced to 200 meters on 20.2.2009. 18. State Government has entered into supplementary memorandum of understanding with the company on 13.3.2007. Notifications were issued under sections 4 and 5 of the Act for 12 acquiring the land. According to the petitioners, there was violation of the Land Acquisition (Companies) Rules, 1963. According to them rule 4 is mandatory and since no inquiry has been held under rule 4, notifications under sections 6 and 7 of the Act could not be issued. According to the respondents, since inquiry was held under section 5 (A) of the Act, no further inquiry was required under rule 4 of the Land Acquisition (Companies) Rules, 1963. 19. Learned counsel appearing on behalf of the petitioners have strenuously argued that the environmental clearance granted to Harish Cement Limited is in violation of the notification issued on 27.1.1994 as amended from time to time. According to them, fresh public hearing was required to be held and this condition could not be waived off by the Government of India. They have further argued that the authority concerned has abdicated its statutory duties by waiving off the condition of public hearing at the instance of the-then Chief Minister. They also argued that there is non-application of mind by the concerned authority while coming to conclusion that fresh public hearing was not required. They have also argued that the distance could not be reduced from 800 meters to 200 meters vide letter dated 20.2.2009. According to them, the distance between Bandli Wild Life Sanctuary and Tarambri DPF has not been correctly taken into consideration. It is also argued by them that the data taken into consideration at the time of public hearing was of 1991 and not 2001. According to them, the notifications under sections 6 13 and 7 are bad in law since mandatory rule 4 of the Land Acquisition (Companies) Rules, 1963 has not been followed. 20. According to the respondents, since the public hearing had already taken place at villages Chambi and Maloh on 19.8.2002, no further hearing was required. According to them, the distance has been reduced from 800 meters to 200 meters on the basis of the recommendations made by the State Government and on the basis of the representation made by the Company. According to the respondents, land in question has been acquired in accordance with law and since the inquiry has already been held under Section 5 (A), there was no necessity to hold inquiry under rule 4 of the Land Acquisition (Companies) Rules, 1963. 21. We have heard the learned Advocates for the parties and have gone through the pleadings carefully. 22. We had also directed the Union of India to produce the record and subsequently, the records were made available after the conclusion of the hearing by Mr. Sandeep Sharma, learned Assistant Solicitor General of India. 23. In order to appreciate the entire gamut as far as public hearing is concerned; it will be apt at this stage to refer to environment impact notification issued by the Government of India on 27.1.1994. It is stipulated in the notification that any person, who desires to undertake any new project in any part of India or the expansion or modernization of any existing industry or project listed in the Schedule-1 shall submit an application to the Secretary, Ministry of Environment and Forest, New Delhi. The application is required to be made in proforma specified in 14 Schedule-II and is required to be accompanied by a project report, including an Environmental Impact Assessment Report, an Environment Management Plan and details of Public hearing as specified in Schedule-IV prepared in accordance with the guidelines issued by the Central Government in the Ministry of Environment and Forests from time to time. So far as site specific projects are concerned, including mining projects, authorities are required to intimate the location of the project site to the Central Government in the Ministry of Environment and Forests while initiating any investigation and surveys. The Central Government in the Ministry of Environment and Forests is required to convey the decision regarding suitability or otherwise of the proposed site within a maximum period of 30 days. The site clearance is to be granted for sanctioned capacity and is to be valid for a period of five years for commencing construction, operation or mining. The reports submitted with the application are to be evaluated and assessed by the Impact Assessment Agency and a committee of experts having a composition as specified in Schedule-III of the notification. The Impact Assessment Agency is the Union Ministry of Environment and Forests. The Impact Assessment Agency is required to prepare a set of recommendations based on technical assessment of documents and data, furnished by the project authorities, supplemented by data collected during visits to sites or factories if undertaken and details of public hearing. The assessment is to be completed within a period of 90 days from the receipt of the requisite documents and data from the project authorities and completion of public hearing and decision 15 conveyed within 30 days thereafter. Cement Industries find mention at Sr. No. 27 of Schedule-I of the notification. Schedule- IV of the notification prescribes procedure for public hearing. It is stipulated therein that whosoever applies for environmental clearance of projects, shall submit to the concerned State Pollution Control Board 20 sets of the following documents, namely:- (i) An executive summary containing the salient features of the project both in English as well as local language. (ii) Form XIII prescribed under Water (Prevention and Control of Pollution) Rules, 1975 where discharge of sewage, trade effluents, treatment of water in any form, is required. (iii) Form 1 prescribed under AIR (Prevention and Control of Pollution) Under Territory Rules, 1983 where discharge of emissions are involved in any process, operation or industry. (iv) Any other information or document which is necessary in the opinion of the Board for their final disposal of the application. 24. Thereafter the State Pollution Control Board is to cause a notice for environmental public hearing, which is to be published in at least two newspapers widely circulated in the region around the project, one of which is to be in the vernacular language of the locality concerned. The State Pollution Control Board is required to mention the date; time and place of public hearing and suggestions, views, comments and objections of the public are to be invited within 30 days from the date of publication of the notification. The persons, including bona fide residents, 16 environmental groups and others located at the project site/sites of displacement/sites likely to be affected can participate in the public hearing. The composition of the public hearing panel is as under: (i) Representative of State Pollution Control Board; (ii) District Collector or his nominee; (iii) Representative of State Government dealing with the subject; (iv) Representative of Department of the State Government dealing with Environment, (v) Not more than three representatives of the local bodies such as Municipalities or Panchayats; (vi) Not more than three senior citizens of the area nominated by the District Collector. 25. The concerned persons are also required to be provided access to the Executive Summary of the project at the specified places. The public hearing is to be completed within 60 days from the date of receipt of complete documents as required under paragraph 1. The Government of India has also issued notification on 7.7.2004 whereby certain amendments have been carried out in the notification dated 27.1.1994. Ministry of Environment and Forests has issued notification on 14.9.2006 whereby notification dated 27.1.1994 has been superseded. According to para 2 of the notification issued on 14.9.2006, the Central Government in the Ministry of Environment and Forests is the competent authority for matters falling in category ‘A’ in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under category ‘B’ of the Schedule. The constitution of State Level Environment Impact Assessment Authority is provided under para 3. Para 4 17 provides for categorization of projects and activities. Para 5 provides for screening, scoping and appraisal committees. Para 6 provides for application for prior environmental clearance. The stages in the prior environmental clearance process for new projects have been postulated in para 7. According to these rules, the public consultation shall ordinarily have two components comprising of:- a) a public hearing at the site or in its close proximity-district-wise, to be carried out in the manner prescribed in Appendix IV, for ascertaining concerns of local affected persons. b) obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity. 26. The public hearing at, or in close proximity to, the site(s) in all cases is to be conducted by the State Pollution Control Board. Grant or rejection of prior environmental clearance is provided under para 8. Para 12 provides that from the date of final publication of notification,