Disposed

M/S.Ashapura Minechem Pvt.Ltd v. the Ministry of Environment and Forests

Kerala HC9 Jun 2017WP(C)/5639/2017

Case brief

AI extract

What is this about?

Petitioner challenged non-conduct of public consultation for its mining lease. Court held adjournment due to protests illegal. Directed SPoCB to hold consultation by notifying within one month, ensuring smooth conduct by District Collector based on draft EIA.

What did the court decide?

Directed State Pollution Control Board to hold public consultation by notifying within one month and District Collector to ensure smooth conduct. No costs.

M/S.Ashapura Minechem Pvt.Ltd Vs the Ministry of… — Environment and Pollution | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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FRIDAY, THE 9TH DAY OF JUNE 2017/19TH JYAISHTA, 1939

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WP(C).No. 5639 of 2017 (D)

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PETITIONER :

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M/S.ASHAPURA MINECHEM PVT. LTD, JEEVAN UDYOG BUILDING, 3RD FLOOOR, 278, D.N.ROAD, FORT, MUMBAI -400 001, REPRESENTED BY ITS WTO & CEO, MR. RAJINIKANT B PAJWANI, AGED 67 YEARS, S/O. BHAGWANDAS PAJWANI.

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BY ADVS.SRI.JOBI JOSE KONDODY SRI.P.DEEPAK SMT.K.MOYA KURIAKOSE

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RESPONDENT(S):

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1. THE MINISTRY OF ENVIRONMENT AND FORESTS, REPRESENTED BY ITS DIRECTOR, INDIRA PARYAVARAN BHAVAN, JORBAGH ROAD, NEW DELHI-110 003

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2. STATE OF KERALA,

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REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001

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3. THE SECRETARY,

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INDUSTRIES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001

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4. THE SECRETARY,

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REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001

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5. THE SECRETARY, ENVIRONMENT AND CLIMATE CHANGE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001

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2/-

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WP(C).No. 5639 of 2017 (D)

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6. THE DISTRICT COLLECTOR, COLLECTORATE, VIDYA NAGAR (P.O), KASARAGOD, PIN-671 121

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7. THE KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS MEMBER SECRETARY, PATTOM (P.O), THIRUVANANTHAPURAM, PIN-695 004

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R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.GIRISH KUMAR.V., CGC R2 TO R6 BY ADDL.ADVOCATE GENERAL SRI.RANJITH THAMPAN BY GOVERNMENT PLEADER SRI.RAVI KRISHNAN R7 BY SRI. T.NAVEEN SC,

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).No. 5639 of 2017 (D)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1: A TRUE COPY OF THE REQUEST LETTER DATED 13.01.2006 BEARING REFERENCE NO.2497/A3/04/ID ISSUED BY THE THIRD RESPONDENT

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TO THE SECRETARY, MINISTRY OF MINES, GOVERNMENT OF INDIA

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EXHIBIT P2: A TRUE COPY OF THE PRIOR APPROVAL ISSUED BY THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF MINES TO THE THIRD RESPONDENT DATED 12.01.2007

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EXHIBIT P3: A TRUE COPY OF THE G.O(MS) NO.54/07/ID DATED 25.04.2007 ISSUED BY THE THIRD RESPONDENT GRANTING MINING LEASE TO THE PETITIONER COMPANY

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EXHIBIT P4: A TRUE COPY OF THE TERMS OF REFERENCE ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF ENVIRONMENT AND FOREST DATED 09.10.2007 TO THE PETITIONER

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EXHIBIT P5: A TRUE COPY OF THE RAPID ENVIRONMENT IMPACT ASSESSMENT REPORT PREPARED BY THE ACCREDITED CONSULTANT FOR AND ON BEHALF OF THE PETITIONER COMPANY SUBMITTED BEFORE THE SIXTH RESPONDENT

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EXHIBIT P6: A TRUE COPY OF THE REPORT DATED FEBRUARY 2010 OF THE COMMITTEE CONSTITUTED BY THE GOVERNMENT VIDE G.O(MS) NO.170/2008/ID DATED 05.11.2008

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EXHIBIT P7: A TRUE COPY OF THE ADDENDUM TO EXHIBIT P5 PREPARED BY THE PETITIONER IN APRIL 2009

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EXHIBIT P8: A TRUE COPY OF THE TERMS OF REFERENCE DATED 12.11.2013 ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF ENVIRONMENT AND FOREST TO THE PETITIONER

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EXHIBIT P9: A TRUE COPY OF THE DRAFT ENVIRONMENTAL IMPACT ASSESSMENT PLAN PREPARED BY THE PETITIONER IN OCTOBER, 2014 THROUGH ACCREDITED CONSULTANT

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EXHIBIT P10: A TRUE COPY OF THE NOTICE PUBLISHED BY THE SEVENTH RESPONDENT DATED 17.11.2014 REGARDING THE PUBLIC HEARING PROPOSED TO BE CONDUCTED ON 18.12.2014 AT KARINTHALAM GRAMA PANCHAYATH COMMUNITY HALL

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EXHIBIT P11: A TRUE COPY OF THE LETTER DATED 17.01.2015 ISSUED BY THE SEVENTH RESPONDENT TO THE PETITIONER COMPANY CANCELLING THE PROPOSED PUBLIC HEARING ON 20.01.2015

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EXHIBIT P12: A TRUE COPY OF THE LETTER DATED 17.01.2015 ISSUED BY THE SEVENTH RESPONDENT TO THE PETITIONER

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2/-

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WP(C).No. 5639 of 2017 (D)

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EXHIBIT P13: A TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER COMPANY AND CSIR DATED 29.01.2016

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EXHIBIT P14: A TRUE COPY OF THE LETTER DATED 25.02.2016 ISSUED BY THE SENIOR PRINCIPAL SCIENTIST, NIIST CSIR TO THE SIXTH RESPONDENT

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RESPONDENT(S)' EXHIBITS AND ANNEXURES:

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ANNEXURE R6(A) COPY OF THE MINUTES OF THE MEETING DATED 13/01/2015 ANNEXURE R6(B) COPY OF THE LETTER DATED 15/01/2015

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ANNEXURE R6(C) COPY OF THE LETTER DATED 23/01/2015.

/TRUE COPY/

P.A.TO JUDGE

sts

K. VINOD CHANDRAN, J.

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W.P.(C) No. 5639 of 2017 (D)

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Dated: 09^th June, 2017

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J U D G M E N T

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The petitioner is aggrieved by the fact that the public consultation, as provided in Stage (3) of the Environmental Impact Assessment Notification, 2006 ('EIA notification' for short) (S.O.1533 dated 14^th September, 2006) has not been carried out.

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The petitioner was granted a mining lease by Ext.P3 in the year 2007. The petitioner has been taking steps to start the mining operations, but, however, the Environmental Clearance required, as per the EIA notification, is not obtained and it is still in the process. The stages prior to Environmental Clearance for new projects is detailed in paragraph 7 of the EIA notification. Stage (1) - Screening is applicable to Category 'B' projects only. The petitioner's project of

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W.P.(C) No. 5639/2017

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mining Bauxite and Aluminous Laterite falls under Category 'A', as is seen from the Schedule of the EIA notification. The various stages applicable to Category 'A' projects are Scoping, Public Consultation and Appraisal. Scoping has been done by the Ministry of Environment and Forests, Government of India and a Terms of Reference (TOR) is brought out as per Ext.P8 dated 12.11.2013, extended up to November, 2017. The petitioner has, by an accredited agency, conducted an Environment Impact Assessment (EIA), as is evidenced from Ext.P9. The earlier assessment conducted by the very same agency is Ext.P5. After Ext.P5 report, by the independent agency, the Government had appointed a Committee to look into it, which had filed Ext.P6 report; wherein certain additional requirements were addressed by the Government.

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An addendum was made to Ext.P5 report by Ext.P7. By that time, the period of TOR was over and

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the petitioner had to again revert back to the first stage, namely Scoping. A second TOR was obtained as Ext.P8, which is valid up to November, 2017. It is pursuant to Ext.P8 TOR that Ext.P9 further report was made. The State Pollution Control Board has to now conduct a Public Consultation, being the second stage for Category 'A' projects, as is seen from the EIA notification. The State Pollution Control Board has dragged its feet in conducting a Public Consultation, is the contention taken and the District Collector was instrumental in the same not being conducted, argues learned Counsel.

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The learned Standing Counsel appearing for the Kerala State Pollution Control Board, however, submits that the Board was specifically asked not to

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carry on with the Public Consultation for reason of wide-spread public protest. The District Collector was, hence, asked to place his explanation on record. A statement dated 05.06.2017 has been filed on behalf of the District Collector.

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Annexure R6(a) is the minutes of an All Party Meeting said to have been convened on 13.01.2015, at the Chamber of the District Collector. For the purpose of carrying on the Public Consultation, the Pollution Control Board had brought out public notice with the hearing date fixed on 20.01.2015. It was seven days prior to that; an All Party Meeting was convened by the District Collector on the ground of protest having been raised from various corners. It is submitted that earlier also public notice was issued with hearing date fixed on 18.12.2014. On 18.12.2014 also the meeting was not carried out due to public protest. Prior to 20.1.2015,

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the District Collector convened a meeting of the stakeholders and directed the Pollution Control Board to adjourn the meeting. The District Collector, after the meeting, issued the communication dated 15.01.2015, produced as Annexure R6(b) and by Annexure R6(c), the Pollution Control Board has informed the Additional Director, Ministry of Environment and Forests and Climate Change (MoEF & CC), about the adjournment of the Public Consultation.

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A reading of the notification would indicate that what is intended by Public Consultation is for the concerns of the affected persons to be placed before the Pollution Control Board, which has to be addressed by the lessee to make appropriate changes in the EIA report. The EIA report, after consideration of the objections and implementation of mitigation measures; will also have to be approved by the Expert Appraisal

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Committee (EAC) of the MoEF & CC.

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A reading of Annexure R6(a) would indicate

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that the various stakeholders had expressed serious objections to the EIA report prepared at Ext.P9. However, that is not a reason for adjourning the meeting as such. These objections, in writing, has to be placed before the Pollution Control Board in the Public Consultation, which will also be considered by the EAC before the EIA report is approved. There is, hence, no purpose in merely adjourning the Public Consultation for reason of the objections aired by the different stakeholders of the locality. The Public Consultation is, in fact, to see that these objections are placed before the EAC to either approve or reject the report as prepared by the independent agency.

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It is also to be noticed that in case the State Pollution Control Board is unable to conduct the public

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hearing and convey the proceedings as per clause (iv) of paragraph 7.III.Stage(3) of the EIA notification, then, a regulatory authority can engage any other public agency, as per sub clause (v). If that public agency also is not able to conduct the public hearing, then, the appropriate authority can even decide that the stages prior to Environmental Clearance, in a particular case, need not include the public hearing. This would, in fact, result in the concerns of the local people and the stakeholders not being addressed by the regulatory authority.

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The refusal to hold Public Consultation would

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have the reverse effect and act against the interest of the local people and the other stakeholders. It could also lead to a situation where the objections against the project are not placed before and considered by the regulatory authority. This is necessarily not a happy

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situation and it is the ignorance of such provisions which result in the public consultation being adjourned without any cause. It is also pertinent that there cannot be any law and order situation where the public are given an opportunity to address their concerns with respect to the lease intended by the Government and the same being placed before the regulatory authority under the MoEF&CC.

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This Court is of the opinion that it is imperative and in the interest of the local public that such a Public Consultation is held. The Pollution Control Board shall, hence, convene a public meeting as expeditiously as possible, with due notice as provided under the EIA notification and the District Collector shall ensure the smooth conduct of such public meeting, based on Ext.P9. It is trite to observe in the nature of the controversy, that; Ext.P9 is not the final EIA report.

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This is only a draft report to assist the EAC to draw up and frame the modalities of the Environmental Clearance, which has to be independently appraised and assessed by such Committee. It is, hence, imperative that the objections of the local people are also placed before the Committee prior to such further appraisal by the Committee. The Pollution Control Board shall ensure that the public notification is made within a period of one month from the date of receipt of the certified copy of the judgment.

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The writ petition is disposed of. No Costs.

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Sd/K.VINOD CHANDRAN, JUDGE

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jjj 9/6/17

M/S.Ashapura Minechem Pvt.Ltd v. the Ministry of Environment and Forests

Case brief

What is this about?

What did the court decide?

M/S.Ashapura Minechem Pvt.Ltd v. the Ministry of Environment and Forests

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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