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

- **Citation:** [2011] 7 S.C.R. 954
- **Court:** Supreme Court of India
- **Decided:** 2011-07-06
- **Bench:** S.H. Kapadia, Aftab Alam, K.S. C Radhakrishnan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lafarge-umiam-mining-pvt-ltd-t-n-godavarman-thirumulpad-v-union-of-india-ors-27878
- **Pages:** 83

## Headnote

Environmental Law:
Environment and utilization of natural resources -
0 Balancing of equities - HELD: Time has come to apply the
constitutional "doctrine of proportionalitt' to the matters
concerning environment as a part of the process of judicial
review in contradistinction to merit review - Utilization of the
environment and its natural resources has to be in a way that
E is consistent with principles of sustainable development and .
intemenerational equity, but balancing of these equities may
entail policy choices -
In the circumstances, barring
exceptions, decisions relating to utilization of natural
resources have to be tested on the anvil of the well-recognized
principles of judicial review - The court should review the
F 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 - Judicial Review -
G Doctrine of proportionality- Doctrine of margin of appreciation
- Polluter pays principle - Intergenerational equity.
Mines and minerals - Limestone mining project in East
Khasi Hills District, Meghalaya - Environmental clearance
H
954
LAFARGE UMIAM MINING PRIVATE LIMITED
955
TN. GODAVARMAN THIRUMULPAD v. U.0.1
and forest clearance - Mining lease agreement signed with .A
Village Durbar - In the application for environmental
clearance it was mentioned that the land in question fell under
Karst topography - No objection granted by KHADC -Site
clearance granted by MoEF - DFO concerned certified that
mining site was not a forest area - Environmental public B
hearing held - Finally, EIA clearance given by MoEF on
9.8.200 - Subsequently, when it was pointed out that non
broken area in the leased mine was forest within the meaning
of Forest (Conservation) Act, 1980, ex post facto ·
environmental clearance and forest clearance granted on c
19.4.2010 and 22.4.2010, respectively - Validity of - HELD:
The word "environment" has different facets - That the land
in question faffs under Kast topography is borne out by the
certificate dated 27. 8. 1999 issued by KHADC - According to
the NEHU Report, the site is located in the area on the 0 ·
outskirts of forest.- Requirement·of submitting the proposal
for forest diversion is exclusively the obligation of the State
Government - While granting environmental clearance dated
9.8.2001, there was an express finding that "no diversion of
forest land was involved" - Since the area of mining lease did E
not fall in forest, State Government did not submit any
proposal to Central Government u/s 2 of the 1980 Ac_t - It is
in view of the existence of 195.8 Act that the native people as
also the DFO understood the area in the light of the said Act
- On facts of the case, it cannot be held that the decision to
grant ex post facto clearances stood vitiated on account of F
non-application of mind or on account of suppressiOn of
material facts by the applicant - Similarly, it cannot be held
that ex post facto clearances have been granted by MoEF in
ignorance of the existence of forests due to mis-declaration
- The ex post facto clearance is based on the revised EIA -
G
In the circumstances, EIA Notification of 2006 would not apply
- The order of the Court is confined to the instant case only -
United Khasi-Jaintia Hills Autonomous District (Management
and Control of Forests) Act, 1958 -
s. 2(6) -
Forest
(Conservation) Act, 1980 -
s. 2 -
Mines and Minerals H
956
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A (Regulation and Development) Act, 1957 - s.5(1).
Environment and development - Limstone mining in
tribal area - Role of triabals and rural public - HELD: Public
participation provides a valuable input in the process of
8
identification of forest - The natives and indigenous people
are fully aware and they have knowledge as to what constitutes
conseNation of forests and development - They equ

## Text

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(2011] 7 S.C.R. 954
A
LAFARGE UMIAM MINING PVT. LTD.
T.N. GODAVARMAN THIRUMULPAD
v.
UNION OF INDIA & ORS.
(I.A. NOS. 1868, 2091, 2225-2227, 2380, 25.68 and 2937)
B
IN
WRIT PETITION (C) No. 202 OF 1995
JULY 6, 2011 .
[S.H. KAPADIA, CJI, AFTAB ALAM AND K.S.
C
RADHAKRISHNAN, JJ.]
Environmental Law:
Environment and utilization of natural resources -
0 Balancing of equities - HELD: Time has come to apply the
constitutional "doctrine of proportionalitt' to the matters
concerning environment as a part of the process of judicial
review in contradistinction to merit review - Utilization of the
environment and its natural resources has to be in a way that
E is consistent with principles of sustainable development and .
intemenerational equity, but balancing of these equities may
entail policy choices -
In the circumstances, barring
exceptions, decisions relating to utilization of natural
resources have to be tested on the anvil of the well-recognized
principles of judicial review - The court should review the
F 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 - Judicial Review -
G Doctrine of proportionality- Doctrine of margin of appreciation
- Polluter pays principle - Intergenerational equity.
Mines and minerals - Limestone mining project in East
Khasi Hills District, Meghalaya - Environmental clearance
H
954
LAFARGE UMIAM MINING PRIVATE LIMITED
955
TN. GODAVARMAN THIRUMULPAD v. U.0.1
and forest clearance - Mining lease agreement signed with .A
Village Durbar - In the application for environmental
clearance it was mentioned that the land in question fell under
Karst topography - No objection granted by KHADC -Site
clearance granted by MoEF - DFO concerned certified that
mining site was not a forest area - Environmental public B
hearing held - Finally, EIA clearance given by MoEF on
9.8.200 - Subsequently, when it was pointed out that non
broken area in the leased mine was forest within the meaning
of Forest (Conservation) Act, 1980, ex post facto ·
environmental clearance and forest clearance granted on c
19.4.2010 and 22.4.2010, respectively - Validity of - HELD:
The word "environment" has different facets - That the land
in question faffs under Kast topography is borne out by the
certificate dated 27. 8. 1999 issued by KHADC - According to
the NEHU Report, the site is located in the area on the 0 ·
outskirts of forest.- Requirement·of submitting the proposal
for forest diversion is exclusively the obligation of the State
Government - While granting environmental clearance dated
9.8.2001, there was an express finding that "no diversion of
forest land was involved" - Since the area of mining lease did E
not fall in forest, State Government did not submit any
proposal to Central Government u/s 2 of the 1980 Ac_t - It is
in view of the existence of 195.8 Act that the native people as
also the DFO understood the area in the light of the said Act
- On facts of the case, it cannot be held that the decision to
grant ex post facto clearances stood vitiated on account of F
non-application of mind or on account of suppressiOn of
material facts by the applicant - Similarly, it cannot be held
that ex post facto clearances have been granted by MoEF in
ignorance of the existence of forests due to mis-declaration
- The ex post facto clearance is based on the revised EIA -
G
In the circumstances, EIA Notification of 2006 would not apply
- The order of the Court is confined to the instant case only -
United Khasi-Jaintia Hills Autonomous District (Management
and Control of Forests) Act, 1958 -
s. 2(6) -
Forest
(Conservation) Act, 1980 -
s. 2 -
Mines and Minerals H
956
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A (Regulation and Development) Act, 1957 - s.5(1).
Environment and development - Limstone mining in
tribal area - Role of triabals and rural public - HELD: Public
participation provides a valuable input in the process of
8
identification of forest - The natives and indigenous people
are fully aware and they have knowledge as to what constitutes
conseNation of forests and development - They equally know
the concept of forest degradation - They are equally aware
of systematic scientific exploitation of limestone mining
without causing of "environment degradation" - However, they
C do not have the requisite wherewithal to exploit limestone
mining in a scientific manner - The word "development" is a
relative term - One cannot assume that the triabals are not
aware of principles of conseNation of forest - In the instant
case, limestone mining has been going on for centuries in
D
the area and it is an activity which is intertwined with the culture
and the unique land holding and tenure system of the area -
On the facts of the case, the MoEF exercised due diligence
in the matter of forest diversion.
E
Environment and sustainable development - Utilization
of natural resources - Guidelines to be followed in future
cases -
The words "environment" and "sustainable
development" have various facets - Care for environment is
an ongoing process - Identification of an area as forest area
F
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 - The MoEFI State Government acts on the
report (Rapid EIA) undertaken by the Institutions who though
accredited submit answers according to the Terms of
G
Reference propounded by the project proponent - At times
the court is faced with conflicting reports - Similarly, the
government is also faced with a fait accompli kind situation
which in the ultimate analysis leads to grant of ex post facto
clearance - Therefore, guidelines are required to be given so
H
LAFARGE UMIAM MINING PRIVATE LIMITED
957
TN. GODAVARMAN THIRUMULPAD v. U.0.1
that fait accompli situations do not recur - Time has come
A
for this Court to declare and it is hereby declared that the
National Forest Policy, 1988 which lays down far-reaching
principles must necessarily govern the grant of permissions
uls 2 of the Forest (Conservation) Act, 1980 as the same
provides the road map to ecological protection and
B
improvement ·Under the Environment (Protection) Act, 1986
- The principles/ guidelines mentioned in the National Forest
Policy, 1988 should be read as part of the provisions of the
Environment (Protection) Act, 1986 read together with the
Forest (ConseNation) Act, 1980 - This direction is required c
to be given because there is no machinery even today for
implementation of the National Forest Policy, 1988 read with
the Forest (Conservation) Act, 1980 - Further guidelines
enumerated - National Forest Policy, 1988 - Environment
(Protection) Act, 1986 Forest (Conservation) Act, 1980 -
0
Environment (Protection) Rules, 1986 - r.5(3)(d).
The predecessor-in-interest of the applicant Lafarge
Umiam Mining Pvt. Ltd. (LUMPL), namely, LMMPL, made
an application on 1.9.1997 under Environment Impact
Assessment (EIA) Notification, 1994 .for granting
E
environmental clearance for limestone mining project at
Nongtrai, East Khasi hills District, Meghalaya. By
application dated 23.9.1998 LMMPL applied for Site
Clearance. The application stated that the site was not a
habitat/corridor for endangered/rare/endemic species; an
F
area of 100 hectares stood acquired by LMMPL on lease
basis for mining for which an agreement was signed with
Village Durbar; and that the limestone bearing area fell
under the Karst topography. LMMPL, obtained "no
objection" certificate dated 27.8.1997 issued by the Khasi
G
Hills Autonomous District Council (KHADC), Shillong, a
constitutional authority under the Sixth Schedule to 'the
Constitution of India, site clearance was given by MoEF
by letter dated 18.6.1999, .certificate dated 13.6.2000 of the
DFO concerned was issued certifying that the mining site
H
958
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A was not a forest area as per Supreme Court's order dated
12.12.1996 nor did it fall under any of the notified
reserved, and the environmental public hearing took
place on 3.6.1998. Ultimately, EIA Clearance was given to
LMMPL by MoEF on 9.8.2001. Under a transfer deed
B executed on 28.2.2002, the mining lease was transferred
and assigned in favour of the applicant LUMPL and,
accordingly, on 30.7.2002, the environmental clearance
granted to LMMPL stood transferred to LUMPL (the
applicant) by MoEF.
c
Subsequently, by letter dated 1.6.2006 from the Chief
Conservator of Forests (C) addressed to MoEF, it was
pointed out that the mining lease area around the
developed mine benches stood surrounded by thick
0
natural vegetation cover with sizeable number of tall trees.
The said vegetation included trees being cleared for
developing the mining benches and for such clearance
no permission under the Forest (Conservation) Act, 1980
was taken. LUMPL, irrespective of its claim to NOC issued
by the DFO, submitted its application dated 3.5.2007 for
E forest clearance under the 1980 Act. By letter dated
11.5.2007 the Principal Chief Conservator of Forests,
Meghalaya wrote to the State government that the project
proponent had broken up an area of about 21.44 Ha; that
the topography in the leased mine around the broken up
F areas was Karst topography; that non-broken up area in
the leased mine was forest land falling within the purview
of the1980 Act; that the project proponent be allowed to
remove the already broken limestone from the site and it
may be directed to apply for forest clearance under
G the1980 Act for the non-broken up part of the leased area.
H
LUMPL filed the instant IA No. 1868 of 2007 seeking
directions to MoEF to expeditiously process its
application u/s 2 of the 1980 Act.
On 6.9.2007 CEC submitted its report to the Supreme
LAFARGE UMIAM MINING PRIVATE LIMITED
959
T.N. GODAVARMAN THIRUMULPAD v. U.0.1
Court stating that the project proponent should have
A
taken permission under the1980 Act before starting
operations in the area and as ex post facto approval was
sought and since fait accompli situation had arisen, there
was no option but to recommend the case for grant of
permission for the use of forest land for mining lease
B
subject to certain conditions mentioned therein. By
interim order dated 5.3.2010 the project proponent was
directed to stop all mining activities. On 5.4.2010 a report
was submitted by the Regional Chief Conservator of
Forests [also known as High Powered Committee (tiPC)],
C
stating, inter alia, that although the area supported rich
flora, the same could be re-forested as a part of
reclamation plan prepared and executed in a ti~e bound
manner; that the project was positive and beneficial to
the residents of the village due to huge amount of cash
D
going to the Village Durbar, reaching the individual
household and improving the financial health of the
population of the villages concerned. Accordingly, on
. 19.4.2010 the MoEF granted environmental clearance
(with certain additional conditions) which was followed
E
by forest clearance dated 22.4.2010 (ex-post facto
clearance) granted by MoEF stipulating further conditions
to be complied with by the project proponent.
The contentions of the parties boiled down to the
issues: (i) nature of land and (ii) whether ex post facto
F
environmental and forest clearances dated 19.4.2010 and
22.4.1010 respectively stood vitiated by alleged
suppression by the appellant regarding the nature of the
land.
Disposing of the IAs, the Court
HELD:
(a) Legal Position
G
H
960
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
1.1. Universal human dependence on the use of
environmental resources for the most basic needs gave
rise to the concept of "sustainable development". Care
of the environment is an on-going process. It would
depend on the facts of each case whether diversion in a
B given case should be permitted or not, barring "No Go"
areas (whose identification would again depend on
undertaking of due diligence exercise). In such cases, the
margin of appreciation doctrine would apply. [para 19]
[1009-E-H; 1110-A-B]
c
Narmada Bachao Ando/an v. Union of India and Others
2000 (4) Suppl. SCR 94 = (2000) 10 SCC 664 - referred
to
1.2. Since the nature and degree of environmental
D risk posed by different activities vary, 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
E environmental protection involves mediating conflicting
visions of what is of value in human life. [para 20] (1010B-C]
1.3. Time has come to apply the constitutional
"doctrine of proportionality'' to the matters concerning
F 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 intergenG erational 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 wellrecognized principles of judicial review. The court should
H review the decision-making process to ensure that the
LAFARGE UMIAM MINING PRIVATE LIMITED
T.N. GODAVARMAN THIRUMULPAD v. U.0.1
961
decision of MoEF is fair and fully informed, based on the
A
correct principles, and free from any bias or restraint.
Once this is e·nsured, then the doctrine of "margin of
appreciation" in favour of the decision-maker would come .
into play. [para 30) [1028-C-H]
R v. Chester City Council (2011) 1 All ER 476 - referred
B
to.
1.4. Accordingly, the matter is disposed of keeping
in mind various facets of the word "environment", the
inputs provided by the Village Durbar of Nongtrai C
(including their understanding of the word "forest" and
the balance between environment and economic
sustainability), their participation in the decision-making
process, the topography and connectivity of the site to
Shillong, the letter dated 11.5.2007 of the Principal Chief D
Conservator of Forests and the report dated 5.4.2010
given by 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
E
prevalent social and customary rights of the natives and
tribals. [para 31) [1029-A-D]
(b) Nature of the land
2.1. According to the State of Forest Report, 2001,
F
the North Eastern Hill State of Meghalaya is
predominantly tribal with 86% tribal population. The area
in question falls under Karst topography; and this fact is
also borne out by the certificate dated 27.8.1997 issued
by KHADC, Shillong which is a constitutional authority G
under the Sixth Schedule to the Constitution. According
to the NEHU Report of 1997, the site selected for mining
has commercially viable limestone deposit. The site was
selected after thorough consultation with the village
Durbar concerned which is the custodian of the land.
H
962
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A The village Durbar also felt that in the area unscientific
limestone quarrying was going on resulting in loss of
revenue both to the State as well as the inhabitants of the
village, particularly, because the said mining was
undertaken by unorganized sectors and, thus, it was
B decided to enter into the lease with the project proponent
so that mining could be done on scientific basis. The site
was also selected because of easy accessibility by road
and less vegetation clearance stood involved. According
to the NEHU Report, the site is located in the area on the
c outskirts of the forest. [para 21] [1011-B-H; 1012-A-C]
{c) Validity of ex-post facto clearance:
3.1. By an order dated 12.12.1996, a Division Bench
of this Court, in T.N. Godavarman Thirumu/pad*, directed
D each State Government to constitute within a specific
period an Expert Committee to identify areas which are
forests irrespecti"ve of whether they are so notified,
recognized or classified under any law and also identify
areas which were earlier forests but stand degraded,
E denuded or cleared. This order dated 12.12.1996, thus,
clarified that every State Government seeking prior
. . approval u/s 2 of the Forest (Conservation) Act, 1980 Act
shall first examine the question relating to existence of
forests before sending its proposal to the Central
F Government in terms of the form prescribed under the
Forest (Conservation) Rules, 1981 (Rule 4). Thus, the
requirement of submitting the proposal for forest
diversion under the 1980 Act is exclusively the obligation
of the State Government. In the instant case, the project
proponent had obtained EIA clearance given by MoEF
G dated 9.8.2001 which clearance stood transferred to the
applicant only on 30.7.2002. While granting environmental
clearance dated 9.8.2001 there was an express finding to
the effect that "no diversion of forest land was involved".
In terms of the order of this Court dated 12.12.1996, an
H
LAFARGE UMIAM MINING PRIVATE LIMITED
963
TN. GODAVARMAN THIRUMULPAD v. U.0.1
Expert Committee was in fact formed by the State of A
Meghalaya by notification dated 8.1.1997 with the
Principal Chief Con~ervator of Forests as its Chairman.
On 10.2.1997, the State of Meghalaya had addressed a
specific letter to the Khasi Hills Autonomous District
Council, stating that the land in question was reckoned
B
as non-forest land and the Council was asked to clarify
whether the area in question under the mining lease fell
in the forest as per the records of the Council. The
Council by its letter dated 28.4.1997 had informed the
State Government that the area in question did not fall in
C
the forest. Apart from the said letter, the Chairperson of
the Expert Committee appointed by the State of
Meghalaya being the Principal Chief Conservator of
Forests also submitted his report in which it was
expressly stated that the mining lease granted by the
D
State Government did not fall in the forest. Si'nce the
mining lease granted by the State did not fall in the forest,
the State Government did not submit any proposal to the
Central Government u/s 2 ·of the 1980 Act as it treated the
site in question as falling on the outskirts of the forests.
E
[para 25] [1015-H; 1016-A-H; 1017-A-F]
*T.N. Godavarman Thirumu/pad v. Union of India 2005
(3) Suppl. SCR 552 = (2006) 1 SCC 1 - referred to.
3.2. It is almost after nine years that there was a
F
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.
Be~een 1997 and 2007, the view which prevailed was
that the project site stood located on the outskirts of the
G
forests. In this connection, it needs to be stated that on
1.6.2006 for the first time the Chief Conservator of
Forests (C), came out with the change of view which was
ultimately accepted in 2007 by MoEF. The most important
fact is that subsequent to the letter dated 1.6.2006,
H
964
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A addressed by the Chief Conservator of Forests (C), the
Principal Chief Conservator of Forests agreed with the
opinion of the Chief Conservator of Forests (C). This was
by letter d~ted 11.5.2007. However, even according to the
Principal Chief Conservator of Forests, who was the
B Chairperson of the Expert Committee appointed by the
State Government, the applicant was not at fault because
the certificate indicating absence of forest was given by
Khasi Hills Autonomous District Council. In fact the letter
dated 11.5.2007 further goes to state that the activities of
c the applicant will provide employment to a large number
of local tribals and rural people and consequently the
application for forest clearance made by the applicant
without prejudice to their rights and contentions dated
3.5.2007 be considered by MoEF. [para 25) [1017-F-H;
D 1018-A-D]
3.3. ·Besides, on 22.4.1998, a notification was issued
by the State Pollution Controi Board constituting an
Environmental Public Hearing Panel to evaluate and
assess the documents submitted by Mis. LMMPL. On
E 3.6.1998, a public hearing did take place. The Headman
of Nongtrai was also present. The village Durbar had
agreed to the proposed project, for the reason that the
limestone was abundantly available in the area but the
same remained unutilized by local villagers themselves
F due to lack of infrastructure. For economic development
of the local population, the village Durbar had decided to
lease the area to the project proponent. [para 25) [1018D-H; 1019-A]
3.4. Public participation provides a valuable input in
G the process of identification of forest. The natives and
indigenous people are fully aware and they have
knowledge as to what constitutes conservation of forests
and development. They equally know the concept of
forest degradation. They are equally aware of systematic •-
H scientific exploitation of limestone mining without
LAFARGE UMIAM MINING PRIVATE LIMITED
965
TN. GODAVARMAN THIRUMULPAD v. U.0.1
causing of "environment degradation". However, they do A
not have the requisite wherewithal to exploit limestone
mining in a scientific manner. These natives and
indigenous people know how to keep the balance
between economic and environment sustainability. In the
instant case, this fact is brought out by the Minutes of the
B
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 have specifically averred that the
Nongtrai village has about 1300 hectares of community
land out of which 900 hectares are limestone bearing c
land. The manner and method of allocation, use and
occupation of the community lands are decided by the
Village Durbar. The Village Durbar has granted lease of
100 hectares of community Ian~ which is limestone
bearing land. [para 25] [1019-C~H; 1020-A-D]
3.5. The word "development" is a relative term. One
cannot assume that the tribals are not aware of principles
D
of conservation of forest. Limestone mining has been
going on for centuries in the area and it is an activity
which is intertwined with the culture and the unique land
E
holding and tenure system of the Nongtrai Village. [para
31] [1029-D-i::J
3.6. Further, a detail written submission has been
filed on 13.5.2011 by the Nongtrai Village Durbar fully
F
supporting the impugned project. Thus, this is a unique
case from North East. This Court is 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 G
fact of their awareness of ecological concerns which has
been taken into account by MoEF. [para 25] [1020-D-F]
3.7. The word "environment" has different facets.
Section 2(f) of the United Khasi -
Jaintia Hills H
966
SUPREME COURT REPORTS
[2011) 7 S.C.R.
A Autonomous District (Management and Control of
Forests) Act, 1958 defines the expression "forest". 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
B 2007, a survey of the unbroken area was conducted by
the Forest Department of the State of Meghalaya wherein
an inventory of the existing trees was prepared based on
their nature and girth. The said record confirms that the
unbroken area has less than 25 trees per acre having
c girth of more than 120 ems. It is in view of the existence
of the 1958 Act, which is a local legislation, that the native
people as also the State officials like the DFO understood
the area in the light of the said Act. It is important to note
once again that this understanding of the natives and
0
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
E 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 ~nderstanding
also existed in the mind of KHADC when it gave
certificates on 28.4.1997, 10.7.1997 and 27.8.1997. In fact
F this has been the understanding of the Council as is
apparent even from its letter dated 18.1.2011 (page 126
of the affidavit dated 9.3.2011 filed by the State of
Meghalaya). This view prevailed with the MoEF between
G
1997 and 2007. [para 25) [1020-G-H; 1021-C-H; 1022-A]
3.8. On facts of the case, it cannot be held that the
decision to grant ex post facto clearances stood vitiated
on account of non-application of mind or on account of
suppression of material facts by the applicant as alleged
H by SAC. [para 25] [1022-A-B]
LAFARGE UMIAM MINING PRIVATE LIMITED
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T.N. GODAVARMAN THIRUMULPAD v. U.0.1
4.1. Similarly, it cannot be held that ex post facto
A
clearances have been granted by MoEF in ignorance of '
the existence of forests due to mis-declaration. 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. 2225B
2227/08 was preferred only in March, 2008. Thus, during
the relevant period of almost a decade, SAC did not
object to the said project. I.A. No. 3063 of 2011 preferred
by CEC, which has acted only after receiving inputs from
respondent No. 5, prima facie throws doubt on the c
credibility of objections raised by SAC. [para 26] [1022C-G]
4.2. On the ex post facto clearance, suffice it to state
that after Chief Conservator of Forests (C) submitted his
report on 1.6.2006, MoEF directed the project proponent D
to apply for necessary clearances on the basis that there
existed a forest in terms of the order of·.this Court dated
12.12.1996 and the ex post facto clearance has now been
granted on that basis permitting diversion of forest by
granting Stage-I forest clearance subject to compliance
E
of certain conditions imposed by MoEF and by this
Court. [para 26] [1022-G-H; 1023-A-B]
4.3. On the question of non-application of mind by
the MoEF, at various stages despite compliances by the
project proponent and despite issuance of certificates.by
various authorities, MoEF sought fprther clarifications/
information by raising. necessary requisitions. A number
F
of queries have been raised from time to time by the
MoEF as indicated from the facts. There were four terms
G
of references given to the HPC. According to the report,
all conditions imposed with regard to environmental
clearance had been substantially complied with by the ·
applicant. The most important aspect is the HPC Report
regarding the topography of the area. It states that
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A though the area can be treated as forest, still it is a hilly
uneven undulating area largely covered by "Karstified"
limestone. The Report further s.tates that the area can be
reforested as a part of the reclamation plan.· It further
states that the indigenous and native people are satisfied
8 with the credentials of the applicant 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
c 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 the applicant to
continue mining. [para 26) [1023-A-B; 1024-A-F]
4.4. Keeping in view the steps taken by MoEF, this
D Court is satisfied that the parameters of intergenerational
equity are satisfied and no reasonable person can say
that the impugned decision to grant Stage-I forest
clearance and revised environmental clearance stood
vitiated on account of non-application of mind by MoEF.
E On the contrary, the facts indicate that the MoEF has been
diligent; that, MoEF l:tas taken requisite care and caution
to protect the environment; and, in the circumstances,
this Court upholds the stage-I forest clearance and the
revised environmental clearance granted by MoEF. [para
F 26) [1024-H; 1025-A-B]
4.5. The order .dated 12.4.2010 recites agreed
conditions between the parties, imposed by this Court in
addition to the conditions laid down by MoEF. These
G conditions are in terms of judgment of this Court in T.N.
Godavarman Thirumulpad with regard to commercial
exp/oitabi/ity 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. This order
H
LAFARGE UMIAM MINING PRIVATE LIMITED
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T.N. GODAVARMAN THIRUMULPAD v. U.0.1
indicates the benefit which will accrue to the natives and
A
residents of the Nongtrai Village. The site covers 100
hectare required for limestone mining. The Village Durbar
seeks to exploit it. on scientific lines. The minutes of the
meeting of the Village Durbar and the submissions filed
by the Durbar indicate the exercise of the rights by the
B
tribals and the natives of Nongtrai Village seeking
economic development within the parameters of the 1980
Act and the 1986 Act. [para 27-28] [1025-C-E; 1027-G-H]
4.6. However, it is made clear that none of the C
observations made in this judgment 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. [para 29] [1028-A-B]
D
4.7. On the facts of the case, the MoEF exercised due
diligence in the matter of forest diversion. The instant
order. is confined to the facts of this case. Accordingly,
there is no reason to interfere with the decision of MoEF
granting site clearance dated 18.6.1999, EIA clearance
E
dated 9.8.2001 read with revised environmental clearance
dated 19.4.2010 and Stage-I forest clearance· dated
22.4.2010. [para 31-32] [1029-E-F; G-H]
Part II
Guidelines to be followed in future cases
5.1. The words "environment" and "sustainable
development" have various facets. At times in respect of
F
a few of these facets data is not available. Care for G
environment is an ongoing process 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.
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A The MoEF/ State Government acts on the report (Rapid
EIA) undertaken by the Institutions who though
accredited submit answers according to the Terms of
Reference propounded by the project proponent. At
times the court is faced with conflicting reports. Similarly,
B the government is also faced with a fait accompll kind
situation which in the ultimate analysis leads to grant of
ex facto clearance. Therefore, guidelines are required to
be given so that fait accompli situations do not recur:
c
D
E
F
G
H
(i) Time has come for this Court to declare and it is
hereby declare that the National Forest Policy, 1988
which lays down far-reaching principles must
necessarily govern the grant of permissions u/s 2 of
the Forest (Conservation) Act, 1980 as the same
provides the road map to ecological protection and .
improvement under the Environment (Protection)
Act, 1986. The principles/ guidelines mentioned in the
National Forest Policy, 1988 should be read as part
of the provisions of the Environwent (Protection) Act,
1986 read together with the Forest (Conservati.on)
Act, 1980. This direction is required to be given
because there is no machinery even today for
implementation of the National Forest Policy, 1988
read with the Forest (Conservation) Act, 1980.
Section 3 of the Environment (Protection) Act, 1986
confers a power coupled with duty and, thus, it is
incumbent on the Central Government 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 Court is of the view that under s.
3(3) of the Environment (Protection) Act, 1986, the
Central Government should appoint a Nation.al
Regulator for appraising projects, enforcing
environmental conditions for approvals and to
impose penalties on polluters.
LAFARGE UMIAM MINING PRIVATE LIMITED
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T.N. GODAVARMAN THIRUMULPAD v. U.0.1
A regulatory mechanism should be put in place and
A
till the time such mechanism is put in place, the MoEF
should prepare a Panel of Accredited Institutions
from which alon.e the project proponent should
obtain the Rapid EIA and that too on the Terms of
Reference to. be formulated by the MoEF.
B
(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
C .
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 o
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,
E
. it would be desirable for the representative of State
Forest Depart~ent 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
F
each regional office there may be a Standing Site
Inspection Committee which will take up the work of
ascertaining the position of the land (na_mely,
whether it is forest land or not). In each Committee
there may be one non-official member who is an
G
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
H
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A
B
c
D
E
F
G
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SUPREME COURT REPORTS
[2011] 7 S.C.R.
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 iil
consultation with the State/UT Governments to
facilitate more frequent inspections and in-depth
scrutiny and appraisal of the proposals.
(vi) Constitution of Regional Empowered Committee,
under the Chairmanship of the Chief Conservator of
Forests (Central) concerned and 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-alia the district-wise details of the location ·and
boundary of: (i) each plot of land that may be defined
as forest for the purpose of the Forest (Conservation)
Act, 1980; (ii) the core, buffer and eco-sensitive zone
of the protected areas constituted as per the
provisions of the Wildlife (Protection) Act, 1972; (iii)
the important migratory corridors for wildlife; and (iv)
the forest land diverted for non-forest ourpose in the
past in the district. The Survey of India toposheets
in digital format, the forest cover maps prepared by
·the Forest Survey of India in preparation of the
successive State of Forest Reports and the
conditions stipulated in the approvals accorded
under the Forest (Conservations) Act, 1980 for each
case of diversion of forest land in the district will also
LAFARGE UMIAM MINING PRIVATE LIMITED
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TN. GODAVARMAN THIRUMULPAD v. U.0.1
be part of the proposed decision support database.
A
(viii) Orders to implement these may, after getting
necessary approvals, be issued expeditiously.
(ix) The Office Memorandum dated 26.4.2011 is in
continuation of an earlier Office Memorandum dated
31.03.2011.
8
(x) Besides, Office Memorandum dated 26.04.2011 on
Corporate Environmental Responsibility has also
been issued by the MoEF. This O.M. lays down the c
need for PSUs and other Corporate entities to evolve
a Corporate Environment Policy of their own to
ensure greater compliance with the environmental
and forestry clearance granted to them.
(xi) All minutes of proceedings before the Forest D
Advisory Committee in respect of the Forest
(Conservation) Act, 1980 as well as the minutes of
proceedings of the Expert Appraisal Committee in
respect of the Environment (Protection) Act, 1986
should be regularly uploaded on the Ministry's
website even before the final approval/decision of
E
the Ministry for Environment and Forests is obtained.
This has been done to ensure public accountability.
This also includes environmental clearances given
under the EIA Notification of 2006 issued under the
Environment (Protection) Act, 1986. Henceforth, in
addition to the above, all forest clearances given
under the Forest (Conservation) Act, 1980 may now
be uploaded on the Ministry's website.
(xii) Completion of the exercise undertaken by each
State/UT Govternment in compliance of this Court's
order dated 12.12.1996 wherein inter-alia each State/
UT Government was directed to constitute an Expert
Committee to identify the areas which are "forests"
F
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B
c
D
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SUPREME COURT REPORTS
[2011) 7 S.C.R.
irrespective of whether they are so notified,
recognized or classified under any law, and
irrespective of the land of such "forest" and the
areas which were earlier "forests" but stand
degraded, denuded and cleared, culminating in
preparation of Geo-referenced district forest-maps
containing the details of the location and boundary
of each plot of land that may be defined as "forest"
for the purpose of the Forest (Conservation) Act,
1980.
(xiii) Incorporating appropriate safeguards in the
Environment Clearance process to eliminate chance
of the grant of Environment Clearance to projects
involving diversion of forest land by considering
such forest land as non-forest, a flow chart depicting,
the tentative nature and manner of incorporating the
proposed safeguards, to be finalized after
consultation with the State/ UT Governments.
(xiv) The public consultation or public hearing as it
is commonly known, is a mandatory requirement of
the environment clearance process and provides an
effective forum for any person aggrieved by any
aspect of any project to register and seek redressal
of his/her grievances.
(xv) The· MoEF will prepare a comprehensive policy
for inspection, verification and monitoring and the
overall procedure relating to the grant of forest
clearances and identification of forests in
consultation with the States (given that forests fall
under entry 17A of the Concurrent List). [Para 32]
[1030-B-H; 1031-A; 1036-A-C)
5.2. These guidelines are to be followed by the
Central Government, State Government and the various
H authorities under the Forest (Conservation) Act, 1980 and
LAFARGE UMIAM MINING PRIVATE LIMITED
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TN. GODAVARMAN THIRUMULPAD v.