LAFARGE UMIAM MINING PVT. LTD. T.N. GODAVARMAN THIRUMULPADversusUNION OF INDIA & ORS.

                       (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
    identification of forest - The natives and indigenous people
8
    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
    natural vegetation cover with sizeable number of tall trees.
0
    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.
    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
H
          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.
                                                             G
     Disposing of the IAs, the Court
     HELD:
(a) Legal Position
                                                             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] (1010-
  B-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 intergen-
G 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 well-
  recognized principles of judicial review. The court should
H review the decision-making process to ensure that the
         LAFARGE UMIAM MINING PRIVATE LIMITED             961
          T.N. GODAVARMAN THIRUMULPAD v. U.0.1

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]
                                                              B
     R v. Chester City Council (2011) 1 All ER 476 - referred
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) [1018-
  D-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]
                                                             D
     3.5. The word "development" is a relative term. One
cannot assume that the tribals are not aware of principles
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
  tribals about the Local Act is an important input in the
0
  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
  1997 and 2007. [para 25) [1020-G-H; 1021-C-H; 1022-A]
G
      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            967
          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. 2225- B
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] [1022-
C-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 F
project proponent and despite issuance of certificates.by
various authorities, MoEF sought fprther clarifications/
information by raising. necessary requisitions. A number
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
                                                                H
                   -
   968     SUPREME COURT REPORTS               [2011] 7 S.C.R.


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           969
          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
                                                               F
Guidelines to be followed in future cases

    5.1. The words "environment" and "sustainable
development" have various facets. At times in respect of
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.
                                                               H
. 970      SUPREME COURT REPORTS               [2011] 7 S.C.R.


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:

        (i) Time has come for this Court to declare and it is
c       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 .
D       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)
E       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.

F       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
G
        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
H       impose penalties on polluters.
      LAFARGE UMIAM MINING PRIVATE LIMITED            971
      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
                     '
    . 972      SUPREME COURT REPORTS                [2011] 7 S.C.R.


A           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
B           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
c           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
D           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
E         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
F
          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
G       ·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
H
     LAFARGE UMIAM MINING PRIVATE LIMITED        973
      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      8
31.03.2011.
(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          E
website even before the final approval/decision of
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     F
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.
                                                        G
(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"
                                                        H
    974      SUPREME COURT REPORTS               [2011) 7 S.C.R.


A         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
B         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.
c         (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,
D         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
E         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.
F         (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
G         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             975
          TN. GODAVARMAN THIRUMULPAD v. U.0.1

the Environment (Protection) Act, 1986, and implemented A
in all future cases of environmental and forest clearances ·
till a regulatory mechanism is put in place. These
guidelines have been issued in the light of this Court's
experience in the last couple of years. On the
implementation of these Guidelines, MoEF will file its B
compliance report within six months. [para 33) [1036-0-
 F]
                     Case Law Reference:
    2000 (4) Suppl. SCR 94         referred to       para 19    c
    2005 (3) Suppl. SCR 552 referred to              para 27
    (2011) 1 All ER 476            referred to       para 30
    CIVIL ORIGINAL JURISDICTION : I.A. Nos. 1868, 2091,         D
2225-2227, 2380, 2568 & 2937

    IN
                                    \
    Writ Petition (Civil) No. 202 of 1995 etc.
                                                                E
    Under Article 32 of the Constitution of India.

                            WITH

Transfer Petition (C) No. 277 of 2010.
                                                                F
     Goolam E. Vahanvati, AG, Parag P. Tripathi, ASG, Harish
N. Salve, U.U. Lalit, Shyam Divan, F.S. Nariman, Dr. A.M.
Singhvi, Jayant Bhushan, Krishnan Venugoplan, Siddhartha
Chowdhury, A.D.N. Rao, P.K. Manohar, Somiran Sharma,
Nishanth Patil, Haris Beeran, Devdatt Kamat, S.N. Terdal, G
Subhash Sharma,. Sanjeev K. Kapoor, Rajat Jariwal Kumar
Mihir (for Khaitan & Co.), AnujBhandari, Ranjan Mukherjee, S.
Bhowmick, S.C. Ghosh, H.S. Thangkhiew, Manish Kumar
Bishnoi, P. Nongbri for the appearing parties.

    The Judgment of the Court was delivered by                  H
    976      SUPREME COURT REPORTS                  [2011] 7 S.C.R.


A         S. H. KAPADIA, CJI.

    Facts

          1. Lafarge Surma Cement Ltd. ('LSCL' for short) is a
    company incorporated under the laws of Bangladesh. It has set
B   up a cross-border cement manufacturing project at Chhatak in
    Bangladesh, which inter-alia has a captive limestone mine of
    1OOHa located at Phlangkaruh, Nongtrai, East Khasi Hills
    District in the State of Meghalaya. The mine is leased out in
    favour of Lafarge Umium Mining Pvt. Ltd. ('LUMPL' for short),
C   which is an incorporated company under the Indian Companies
    Act, 1956 and which is a wholly owned subsidiary of LSCL. The
    entire produce of the said mine is used for production of
    cement at the manufacturing plant at Chhatak, Bangladesh
    under the agreement/arrangement between Government of
o   India and Government of Bangladesh. There is no other source
    of limestone for LSCL except for the captive limestone mine
    situated at Nongtrai, East Khasi Hills District in the State of
    Meghalaya. The limestone as mined by LUMPL is conveyed
    from the mine situated at Nongtrai after crushing in a crusher
E   plant. The limestone mined is conveyed by a conveyor belt to
    LSCL plant in Bangladesh.

         2. The National Forest Policy, 1988 stood enunciated
    pursuant to Resolution No. 13/52-F, dated 12th May 1952 of
    GOI to be followed in the management of State Forests in India.
F   The said Policy stood enunciated because over the years
    forests in India had suffered serious depletion due to relentless
    pressures arising from ever increasing demand for fuel wood,
    fodder and timber; inadequacy of protection measures;
    diversion of forest lands to non-forest uses without ensuring
G   compensatory afforestation and essential environmental
    safeguards; and the tendency to look upon forests as revenue
    earning resource. Thus, there was a need to review the situation
    and to evolve, for the future, a strategy of forest conservation
    including preservation, maintenance, sustainable utilisation,
H
             LAFARGE UMIAM MINING PRIVATE LIMITED                     977
    T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

     restoration and enhancement of the natural environment. It is this        A
     need which led to the enunciation of National Forest Policy
     dated 7th December, 1988. .The principal aim of the Policy was
     to ensure environmental stability and maintenance of ecological
     balance. The derivation of direct econo_mic benefit was to be
     subordinate to the principal aim of the Policy (See para 2.2).            B
     Under essentials of forest management it is stipulated that
     existing forests and forest lands should be fully protected and
     their productivity improved. It is further stipulated that forest cover
     should be increased rapidly on hill slopes, in catchment areas
     and ocean shores. It is further stipulated that diversion of good         c
     and productive agricultural lands to forestry should be
     discouraged in view of the need for increased food production
     (See para 3.2). Under the Policy a strategy was prescribed vide
      para 4. The goal is to have a minimum of one-third of the total
      land area under forest or tree cover. In the hills and in mountains      0
     the aim is to maintain two-third of the area under forest or tree
  . cover in order to prevent erosion and land degradation and to
     ensµre the stability of the fragile eco-system. Under para 4.2.3,
     village and community lands, which is the common feature in
      north-east regions, not required for other productive uses,              E
     should be taker. up for development of tree crop and fodder
      resources and the revenue generated through such programmes
      should belong to the panchayats where lands are vested in them
      and in other cases such revenues should be shared with local
      communities to provide an .incentive to them and accordingly
      land laws should be so modified wherever necessary so as to              F
     facilitate and motivate individuals and institutions to undertake
      tree farming. Vide para 4.3.1, the Policy lays down that schemes
      and projects which interfere with forests that cover steep slopes,
      catchment of rivers, lakes and reservoirs, geologically unstable
      terrain and such other ecologically sensitive areas should be            G
  . severely restricted. Tropical rain/moist forests, particularly in
· .· areas like Arunachal Pradesh; Kerala, Andaman & Nicobar
      lslands:should be totally safeguarded. Noforest should be
     permitted to be worked without the government having
     approved the management plan in a prescribed form and in                  H
    978      SUPREME COURT REPORTS                   [2011) 7 S.C.R.


A keeping with the National Forest Policy (See para 4.3.2).
  Under para 4.3.4.2 the rights and concessions from forests
  should primarily be for the bonafide use of the communities
  living within and around forest areas, specially the tribals. The
  Policy recognizes the fact that the life of tribals and other poor
B people living within and near forests revolves around forests and
  therefore the Policy stipulates vide para 4.3.4.3 that the rights
  and concessions enjoyed by such persons should be fully
  protected and that their domestic requirements of fuel wood,
  fodder, minor forest produce and construction timber should be
c the first charge on the forest produce. Para 4.4 deals with
  diversion of forest lands for non-forest purposes. Under the said
  para it is stipulated that forest land or land with tree cover should
  not be treated merely as a resource readily available to be
  utilised for various projects, but as a national asset which
  requires to be properly safeguarded for providing sustained
0
  benefits to the community. Diversion of forest land for non-forest
  purpose therefore should b~ subject to most careful
  examination by experts from the stand point of social and
  environmental costs and benefits. Construction of dams and
  reservoirs, mining and industrial development should be
E consistent with the need for conservation of trees and forests.
  Projects which involve such diversion should at least provide
  in their investment budget, funds for regeneration/compensatory
  afforestation. Beneficiaries who are allowed mining and
  quarrying in forest lands and in lands covered by trees should
F be required to re-vegetate the area in accordance with forestry
  practices and, therefore, by para 4.4.2 it is stipulated that no
  mining lease shall be granted without a proper mine
  management plan. Under para 4.5 it is stipulated that forest
  management should take special care for wildlife conserv.ation
G and consequently forest management plans should include
  prescriptions for that purpose. Under para 4.6 of the Policy it
  is stipulated that a primary task of all agencies responsible for
  forest management shall be to associate the tribals and
  communities living in such areas in the protection, regeneration
H and re-development of forests as wells as to provide gainful
           LAFARGE UMIAM MINING PRIVATE LIMITED                  979
  T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

 employment to people living in and around the forest.                   A
        3. On 27.1.1994, in exercise of the powers conferred by
  Section 3(1) read with clause (v) of sub-Section (2) of Section
  3 of the Environment (Protection) Act, 1986 (for short "the 1986
  Act") read with Rule 5(3)(d) of Environment (Protection) Rules,        8
  1986 the Central Government issued Environmental Impact
  Assessment Notification whereby it directs that on and from the
  date of publication of the said Notification in the official gazette
  expansion or modernization of any activity or a new project
  listed in Schedule-I shall not be undertaken in India unless it has    C
- been accorded environmental clearance by the Central
  Government in accordance with the procedure specified in the
  Notification. Under clause (2)(1) any person who desires to
  undertake any new project listed in Schedule-I shall submit an
  application to MoEF, New Delhi in the proforma specified in
  Schedule-II to be accompanied by a project report which shall          D
  include EIA report/environment management plan prepared in
  accordance witli the guidelines issued by MoEF. Under clause
  2(11) in case of mining as a site specific project the project
  authority (project proponent) will intimate the location of the
  project site to the MoEF while initiating any investigation and        E
  survey. The MoEF will convey its decision regarding suitability
  of the proposed site within a specified period. Thus, site
  clearance will be granted for a sanctioned capacity and shall
  be valid for five years for commencing construction, operation
  or mining. The EIA Report submitted with the application by the        F
  project proponent shall be evaluated and assessed by the
  Impact Assessment Agency, and if deemed necessary, it may
  consult a Committee of Experts having a composition as
  specified in Schedule-Ill. The Impact Assessment Agency (IAA)
  is ryloEF. The Committee of Experts shall have full right of entry     G
  and inspection of the site. The IAA shall prepare a set of
  recommendations based on technical assessment of
  documents and data; furnished by the project authorities
  (project proponent), supplemented by data collected during
  visits to sites which would include interaction with the affected      H
    980     SUPREME COURT REPORTS                  [2011] 7 S.C.R.


A population and environmental groups, if necessary. The
  summary of the reports, the recommendations and the
  conditions, subject to which environmental clearance is given,
  shall be made available subject to public interest to the
  concerned parties or environmental groups on request.
B Comments of the public may be solicited within the specified
  period by IAA in public hearings arranged for that purpose. The
  pubic shall be provided access, subject to public interest, to
  the summary of the EIA report/environment management plan.
  The clearance granted shall be valid for five years for
c commencement of the construction or operation of the plant.
  The monitoring of the implementation of the recommendations
  and conditions of IAA is also provided for in the said notification
  vide clause IV.

       4. The said notification dated 27 .1.1994 stood slightly
D amended by notification dated 10.4.1997. By the said
  notification detailed procedure for public hearing has been
  prescribed. It also prescribes composition of public hearing
  panels.

E      5. On 1.9.1997 LMMPL made an application for granting
  environmental clearance for limestone mining project at
  Nongtrai, East Khasi Hills District, Meghalaya. The application
  was made under EIA Notification, 1994. It was made in the form
  prescribed by the Notification, 1994. 20 copies of Rapid EIA
F Report (NEHU Report) were also annexed therewith. However,
  the said proposal dated 1.9.1997 was returned by MoEF vide
  letter dated 24.10.1997. The reason being that on 10.4.1997,
  as stated hereinabove, the MoEF had amended the EIA
  Notification of 1994 making public hearing mandatory for the
G development projects listed in Schedule-I of the Notification. By
  reason of the said Notification dated 10.4.1997 the then project
  proponent (M/s. LMMPL) was asked to seek Site Clearance
  as well as Project Clearance separately. The Site Clearance
  proposal was called for through the State level agency dealing
  with the mines. Accordingly, by application dated 23.9.1998 M/
H
        . LAFARGE UMIAM MINING PRIVATE LIMITED               981
 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.)

s. LMMPL applied for Site Clearance for Limestone Mining A
Project at Nongtrai village, East Khasi Hills District, Meghalaya.
This application was made in the prescribed form. The
application indicates that there exists an approach/access road
to the site that is described as Shillong-Mawsynram-Nongtrai
or Shillong-Cherrapunjee-Shella-Nongtrai. The application B
further states that all villages represent tribal population. The
application further indicates that there exists many private
limestone quarries in the area. It is further stated in the
application that the topography of the area is hilly. Against the
column 'Forest Land Involved in the Project' the answer given c·
by the project proponent was "Nil". According to the application
the site is not a habitat/corridor for endangered/rare/endemic
species. The.source of this information was the NEHU Report.
According to the said Report, mining of limestone in Khasi Hills
was a source of revenue right from 1858. The limestone deposit D
in Meghalaya is estimated to be 2165 million tonnes.
Exploitation of Nongtrai limestone dates back to 1885. Even
today, a number of privat~ parties quarry limestone in this area.
An area of 100 hectares stood acquired by LMMPL on lease
basis for mining. For that an agreement was signed with Village
Durbar. The limestone bearing area around Nongtrai and ·E
Shella falls under the Karst topography. This area falls on the
 southern fringe of the Meghalaya plateau. [See Land Use/ Land
 Cover Map (March 1997) submitted by Mr. F.S. Nariman,
 Source: IRS-1C LISS-3 MX DATA, Path & Row: 111-054,
                                                                   F .
 Date: March 1997] Karst topography is a landscape formed by
 the dissolution of a layer(s) of soluble bedrock, usually
 carbonate rock such as limestone. Karst topography. is
 characterized by limestone caverns carved by groundwater.
 Karst landscapes are formed by the removal of bedrock
 (composed in most cases of limestone, gypsum or salt). [See G
 Article from Encyclopedia Britannica by William 8. White]
Alongwith the application, a certificate dated 27.8.1997 was
annexed. It was issued by Khasi Hills Autonomous District
Council, Shillong which council is the constitutional authority
under Sixth Schedule of the Constitution. By the said certificate H
    982     SUPREME COl)RT REPORTS                 [2011) 1 S.C.R.


A the council specifically stated that it had no objection for mining
  operation in the area at Nongtrai village since the area does
  not fall within a forest land. This application for site clearance
  was allowed by MoEF vide letter dated 18.6.1999 addressed
  to the Project Proponent. Site clearance was, thus, granted
B under the 1994 Notification as amended on 4.5.1994 and
  10.4.1997 subject to strict compliance of terms and conditions
  mentioned therein. One of the conditions was that the Project
  Proponent shall obtain environmental clearance for the
  proposed limestone mine as per the procedure laid down in
c the 1994 Notification before taking up developmental work at
  the site. The said clearance was not to be construed as grant
  of mining permission. No developmental activity relating to the
  project was to start prior to environmental clearance.
  Accordingly, on 17.4.2000, LMMPL made an application for
D environmental clearance to MoEF in the prescribed form to
  excavate 2.0 million tonnes per annum of limestone and to
  transport the same to Chhatak in Bangladesh through belt
  conveyor (7.2 km long within Indian territory). The mining lease
  area was indicated to be 100 hectare~The description of land
E was shown as "barren". In the application, it was further stated
  that there is no notified forest land within 25 kms. from the
  proposed mine. Along with the application vide Annexure A,
  copy of No Objection Certificate (NOC) for mining operations
  at the proposed site dated 27.8.1997 stood annexed. That
  certificate was issued by Khasi Hills Autonomous District
F Council, Shillong, which, as stated above, inter alia states that
  the Council has no objection for mining operations at Nongtrai
  Village since the area of 100 hectare does not fall within forest
  land. Similarly, vide letter dated 6.7.1997 issued by Village
  Durbar, NOC was granted for withdrawal of water for the
G project. Vide Anr:iexure G to the application, consent to
  establish the project stood issued by Meghalaya Pollution
  Control Board. By Annexure H to the application, minutes of
  Environmental Public Hearing of the project has been annexed.
  These minutes indicates the presence of Addi. Deputy
H Commissioner, East Khasi Hills District, various government
          LAFARGE UMIAM MINING PRIVATE LIMITED                983
 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

officials including nominees of Forest Conservators and               A
Member Secretary of the Pollution Control Board. According
to the Headman of Nongtrai Village, limestone is abundantly
available in the area; the same has not been utilized by local
villagers due to lack of infrastructure; for economic development,
the Village Durbar had decided to lease the area; the                 B
environmental implications of the project stood discussed;
complaint received from Meghalaya Adventures Association
was read out which complaint mainly dealt with destruction of
caves which stood rebutted by the Headman and, thus, the
meeting stood concluded. All this indicates even public               c
participation and grant of NOCs by various competent
authorities. Vide Annexure J to the application for
environmental clearance, we find approval being granted under
Section 5(1) of the Mines and Minerals (Regulation and
Development) Act, 1957. Along with the application for                0
environmental clearance M/s. LMMPL also forwarded to MoEF
Rapid EIA of Limestone Mine prepared by Environmental
Resources Management India Pvt. Ltd. This report describes
in detail the topography of the mining site. According to the said
report the leased area lies on the western side of Umium river        E
valley. It is approachable from Shillong via Mawsynram and
Nongtrai villages by motorable road. It is also accessible from
Shillong by road via Cherrapunji. According to the report the
site is at the Phalngkaruh which originates from the foot hills of
the proposed mine site. According to the said report the site
is on uneven terrain with a rugged topography. There are              F
heaps of fractured rocks all over the place. It is a rocky region.
The site rejects any possibility of natural growth of forest. It is
an area of low botanical and floral diversity. It is an area
covered with rocks. The area can be termed as a wasteland.
                                                                      G
     6. On receipt of the application for environmental
clearance, certain queries were raised by MoEF with regard
to the scope of the site clearance (the original site clearance
was for 0.8 million tonnes whereas subsequently that capacity
was revised to 2 million tonnes); that, as per this Court's order     H
    984      SUPREME COURT REPORTS                   [2011] 7 S.C.R.


A   dated 12.12.1996, "forests" has to be understood in terms of
    the dictionary meaning and, accordingly, a certificate was
    asked for in that regard from local DFO; the effect due to
    disposal of waste water through soak pit and whether the
    existing road width was sufficient to carry on heavy equipments
B   for mining purposes. These were some of the queries/
    objections on the basis of which clarification was sought vide
    letter dated 1.5.2000 by MoEF with regard to environmental
    clearance under the 1994 notification. As requested by MoEF,
    the project proponent vide letter dated 11.5.2000 requested the
c   local DFO to issue necessary certificate as called for by MoEF
    in terms of the order of this Court dated 12.12.1996.
    Accordingly, on 13.6.2000, the DFO forwarded the certificate
    to the project proponent in respect of Limestone Mining Project
    at Nongtrai, East Khasi Hills District, Meghalaya by which it was
    certified that the mining site was not a forest area as per this
0
    Court's Order dated 12.12.1996 and nor did it fall under any
    of the notified reserved or protected forests. Moreover, the
    certificate once again reiterated that the site area stood
    covered with Karst topography which supported only a sporadic
    growth of a few tree shrubs. Despite such certificate of DFO,
E   MoEF in continuation of their letter dated 1.5.2000 called for
    additional information inter alia including list of flora and fauna
    in compliance of Wildlife (Protection) Act, 1972, list of species
    under the 1972 Act, consent from the State Pollution Control
    Board for 3000 TPD of limestone, information on ground water
F   potential, information regarding water requirement, etc.
    Clarifications sought by MoEF vide letters dated 1.5.2000 and
    16.6.2000 for environmental clearance were answered by
    LMMPL vide letter dated 17.8.2000. As per the said reply, the
    environmental public hearing notice was published in three
G   newspapers; that, earlier" the project proposal was for 0.8
    million tonnes per annum but later on based on the increased
    cement plant production capacity in Bangladesh, it stood
    increased to 2.0 MTPA; that, earlier the lease period was
    proposed to be 35 years which stood reduced to 30 years; that,
H   the mine site was on Karst topography which neither MoEF nor
     #    LAFARGE UMIAM MINING PRIVATE LIMITED                985
 T.N. GODAVARMAN THl.RUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.] .
                      ~
the Shella Action Committee ("SAC" for short) denies; that, the A
equipment to the mine site would be brought through Guwahati
-·Shillong - Mawsynram route which contains an established
route whose width was 7.5 m wide; that, there was no proposal
to cut any trees for the purpose; that, no sanctuary/ national park ~
is located within 2!) kms. radius from the proposed mine B
location; that, the mine site is situated in the southern slopes
of the Central Plateau of Meghalaya; that, the core area
comprising of the mining site consisted of uneven terrain with
a rugged Karst topography (see page 484 of Volume Ill); the
minutes of the environmental public hearing dated 3.6.1998 c
were also annexed; site clearance dated 18.6.1999 granted by
MoEF was also annexed; that, a report regarding impact of
limestone mining on Nongtrai, Meghalaya on Siltation Process
prepared by Center for Study of Man and/Environment dated
April, 2000 also stood annexed to the clarifications given by D
LMMPL We need to comment on that report. Firstly, it indicates
that the mining site is located on the southern fringe of the
Meghalaya Plateau adjoining the plains ~f Bangladesh having
a rich endowment of high grade limestone. Secondly, it
highlights that the site is approachable from Shillong (109 km.) E
by motorable road via Mawsynram and Nongtrai. Thirdly, it
 states that on account of dissolution of the limestone, Karst
 tppography has resulted which topography is characterized by
 caverns and caves which are so prominent that even in
 1:50,000 toposheet, they could be plotted. In other words, the
 karst features are intimately tied up with hydrological situation. F
 Certain recommendations have been made in the report with
 regard to possible impact of limestone mining on the
 Phalangkaruh river system. Despite clarification, MoEF once
 again examined the matter through Expert Committee which
 held its meeting on 19th and 20th October, 2000 in New Delhi G
 under the aegis of MoEF. In the meeting, the project proponent
 made a presentation on their proposal for production of
limestone at the rate of 30,000 tonnes per annum for five years.
Certain queries were raised by the Expert Committee on the
basis of which once again further clarification was sought by H
    986      SUPREME COURT REPORTS                (2011] 7 S.C.R.


A MoEF from LMMPL vide letter dated 6.11.2000. According to
  the query, the area in question supports diversity of plants and
  animals. It also represents the remnants of the rapidly vanishing
  humid rainforest. That, the area is a home of endemic
  insectivorous plants, butterflies; All this, according to MoEF,
B would require a detailed survey of plants and animals to be
  carried out with the help of BSI and ZSI offices located in
  Shillong. Accordingly, the project proponent submitted report
  on Ecological Status Survey prepared by Centre for
  Environment and Development; report on Afforestation
c Reclamation Plan, report on Physiography and Hydrogeology
  of Fugro Milieu Consult B.V. and report on Catchment Area
  Treatment Plan, vide letter dated 9.2.2001 addressed to MoEF.
  One more aspect may be noted. These reports were placed
  before the Expert Committee once again on 7.3.2001. Even
D Wild Life Division also gave its report on 1.6.2001. After
  placement of all these reports, at the end of the day, EIA
  Clearance was given by MoEF on 9.8.2001 which again
  contained further conditions which were to operate once the
  developmental work started. According to the environmental
  clearance dated 9.8.2001, the total lease area of the mine is
E 100 hectares; that no diversion of forest land was involved; that
  the targeted annual production capacity of the mine had to be
  2.0 million tonnes and, lastly, certain general conditions were
  stipulated with regard to steps to be taken during the
  developmental work. On EIA Clearance being granted by
F MoEF, LMMPL became desirous of transferring and assigning
  the lease in favour of LUMPL having its registered office at
  Shillong on which the State Government granted permission to
  transfer the mining lease vide order dated 29.8.2001.
  Accordingly, a transfer deed stood executed on 28.2.2002 in
G the prescribed form under Rule 37-A of Mineral Concession
  Rules, 1960. Accordingly, on 30.7.2002, environmental
  clearance which was earlier granted to LMMPL stood
  transferred to LUMPL by MoEF.

H         7. However, vide letter dated 1.6.2006, from Chief
          LAFARGE UMIAM MINING PRIVATE LIMITED               987
 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [SH KAPADIA, CJI.]

Conservator of Forests (C), Shri Khazan Singh, addressed to A
MoEF it was pointed out that he had visited Limestone Mining
Project of M/s. Lafarge when it was found that project had
completed developmental works and opening of mine benches
had also been accomplished for ?Ha of the mining lease land.
According to the said letter the mining lease area around the B
developed mine benches stood. surrounded by thick natural
vegetation cover with sizeable number of tall trees. The said
vegetation included trees being cleared for developing the
mining benches. That the wood obtained from felling of trees
wa$ collected by the lessor who were from Nongtrai Village. c
According to the said letter, for such clearance no permission
was taken under Forest (Conservation) Act, 1980 (for short the
'1980 Act'). Further, even the Rapip EIA report submitted by
the project proponent described the land as.wasteland though
the visit of the Chief Conservator found it to be otherwise. D
Consequently, by the said letter the Chief Conservator of
Forests (C)·informed the MoEF that the project proponent may
be directed to obtain forest clearance under the 1980 Act and
not to.proceed with the mining activities till such clearance. A
copy of the said letter was also sent to the project proponent.
                                                                     E
By letter dated 11.8.2006, the project proponent replied to the
Chief Conservator of Forests (C) stating that it had proceeded
with the developmental work on the basis of the certificate given
by DFO dated 13.6.2000 under which it was certified that the
project area was not a forest area and it did not fall in any of
the notified reserved or protected forests. It was further clarified F
that in the core area there were only a few trees, shrubs
growing in some soil trapped in the crevices and only those
shrubs and trees which are growing in the area demarcated
on the excavation plan have been cut. According to the said
letter the 1980 Act was not applicable as there was no diversion G
of forest land for non-forestry purposes. Accordingly, a letter
was addressed by MoEF on 15.11.2006 to Mis. LMMPL. The
complaint made by the Chief Conservator of Forests (C) was
conveyed to the project proponent. In terms of the said
complaint, MoEF directed Mis. LMMPL to obtain forest H
   988      SUPREME COURT REPORTS                [2011] 7 S.C.R.


A clearance under the 1980 Act before taking steps to clear
  vegetation including trees for developing mining benches. On
  14.9.2006, MoEF issued EIA Notification 2006 whereunder
  concerns of local affected persons were required to be taken
  into account through public consultation. By letter dated
B 29.1.2007, Mis. Lafarge took the stand that there is some
  natural growing vegetation; that only those shrubs which are
  growing in the excavation plan have been cleared and since
  there was no diversion of forest land for non-forestry purposes
  the 1980 Act was not applicable. Vide letter dated 9.4.2007
c addressed by the Chief Conservator of Forests (C) to the
  Secretary, Department of Forest and Environment, Government
  of Meghalaya as well as to the Khasi Hills Autonomous District
  Council, it was pointed out that the mining project was
  undertaken in the virgin and natural forest; that the forest is
D standing all around the periphery of the broken area; that the
  mine was operating on forest land without clearance under the
  1980 Act; that the area is a natural/virgin forest; that the land
  belonged to village Durbar of Nongtrai and in the circumstances
  forest clearance was required to be obtained under the
  provisions of 1980 Act in terms of the order of the Supreme
E Court dated 12.12.1996. According to the said letter, there was
  a clear violation of the 1980 Act. Accordingly, the Chief
  Conservator of Forests(C) Shri B.N. Jha requested the
  Government of Meghalaya to stop fresh clearance of
  vegetation, breaking of land, extension of mining area, removal
F of felled trees and stoppage of non-forestry activities with
  immediate effect. A copy of the said letter was also forwarded
  to MoEF. By letter dated 17.4.2007 addressed by MoEF to
  Government of Meghalaya a report was asked for indicating
  justification for continuance of mining by the project·proponent
G within a week failing which MoEF had no option but to direct
  mine closure. Thereafter response was given by Mis. Lafarge
  vide letter dated 25.4.2007. However, MoEF, vide letter dated
  30.4.2007, directed complete closure of all on going non-
  forestry activities by M/s. Lafarge in compliance of the
H directions of the Supreme Court dated 12.12.1996. Suffice it
           LAFARGE UMIAM MINING PRIVATE LIMITED               989
  T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

to state without going into further correspondence that M/s.         A
Lafarge submitted its application for forest clearance under the
1980 Act vide application dated 3.5.2007. The application
makes it clear that permission is sought for forest clearance
without prejudice to the rights and contentions of the project
proponent. After reciting the above facts, M/s. Lafarge              B
submitted that the project was a cross-border project; that it had
put in ten years of efforts for obtaining approvals; that had the
 reservation on the legal status of the land and the use of the
 mine site as forest land been made clear by Chief Conservator
 of Forests (C) and had such reservation been conveyed to Ml         c
s. Lafarge earlier or even at the time of consideration of the
 proposal for environmental clearance, they (project proponent)
would have sought approval under the 1980 Act before
implementing the mining project. It was pointed out that the
mining lease area was 100 Ha. At the time of making the              0
application for forest clearance the broken up area was 21.44
Ha. In the said application M/s. Lafarge undertook to bear the
cost of raising and maintenance bf compensatory afforestation.
They also undertook to fulfill all other conditions leviable under
the law. By letter dated 11.5.2007 addressed by the Principal        E
Chief Conservator of Forests, Meghalaya to the Government
of Meghalaya, it was pointed out that the project proponent had
 broken up area of about 21.44Ha; that the topography in the
 leased mine around the broken up areas was Karst topography
 consisting of limestone surface having natural fissures and
 crevices; that a sizeable quantity of limestone was lying in and    F
 around the broken up area; that the non-broken up area in the
 leased mine was forest land falling within the purview of the
 1980 Act. By the said letter, the Principal Chief Conservator
of Forests submitted that the project proponent be allowed to
remove the already broken limestone from the site and that the       G
 project proponent may be directed to apply for forest clearance
under the 1980 Act for the non-broken up part of the leased
area. It is at this ·stage that M/s. Lafarge moved this Court by
way of I.A. No. 1868 of 2007 inter alia seeking orders directing
MoEF to expeditiously process its application· under Section         H
    990      SUPREME COURT REPORTS                    [2011] 7 S.C.R.


A   2 of the 1980 Act within a time bound programme preferably
    within 60 days. By letter dated 3. 7 .2007 addressed by M/s.
    Lafarge to the MoEF (North-East Region), the regional office
    of the MoEF, was informed that the project proponent had
    already applied for forest clearance to the MoEF, New Delhi.
B
          8. On 6.9.2007 CEC submitted its report to this Court
    saying that the project proponent should have taken permission
     under the 1980 Act before starting operations in the area.
    According to CEC this was a typical case where ex-post facto
    approval under the 1980 Act is sought after the mine has been
C   allowed to operate illegally. Since fait accompli situation arose
    according to CEC there was no option but to recommend the
    case for grant of permission for the use of forest land for mining
    lease, conveyor belt system and associated activities subject
    to certain conditions mentioned therein. By interim order dated
D   5.2.2010 M/s. Lafarge was directed to stop all mining activities.
    On 5.4.2010 a report was submitted by Shri B.N. Jha, Regional
    Chief Conservator of Forests (C) [also known as High Powered
    Committee (HPC)]. The report was submitted pursuant to the
    site inspection carried out by a High Level Committee which
E   also had interaction with local population and institutions in the
    first week of April, 2010. Briefly, it may be stated that the report
    indicates assessment of the impact of the mining done by the
    project proponent up to April 2010 on forest, wildlife and
    surroundings. The report indicates details of the area already
F   broken up. On the impact aspect the report states that the total
    clearing involves felling of 9345 trees out of which 1200 trees
    have already been felled. That, although the area supports rich
    flora, the same can be re-forested as a part of reclamation
    plan. According to the report, the said impact can be minimized
G   after a thorough study of Bio-Diversity Management Plan as
    well as Catchment Area Treatment Plan is prepared and
    executed in a time bound manner. At the same time the report
    states that the project is positive and beneficial to the residents
    of Nongtrai village due to huge amount of cash going to village
H   Durbar and reaching the individual household improving the
          LAFARGE UMIAM MINING PRIVATE LIMITED                 991 .
 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [SH KAPADIA, CJI]

financial health of the population of two villages, i.e., Nongtrai     A
and Shella. According to the report, interaction took place
between the High Powered Committee constituted by MoEF
and the locals. That villagers of Shella are not having any
problems from M/s. Lafarge and that the people are very
satisfied with the mining company which has provided health            B
care facilities, drinking water facilities, employment, schools etc.
According to the report, Mis. Lafarge has been contributing for
 the benefits of the village as well as for all the villagers by way
 of payment of rent for the use of the community land as well as
 towards the price of limestone exported to Bangladesh. The            c
 figures of such payments are also indicated in the report.
 Further, the report states that mining is not having any adverse
 effect on the human life. When the matter came before the
 Supreme Court on 12.4.2010, the learned Attorney General
 stated that MoEF will take a final decision under the 1980 Act        0
 for the revised environmental clearance for diversion of 116 Ha
 of forest land subject to certain conditions. Accordingly, on
 19.4.2010 the MoEF granted environmental clearance with
certain additional conditions. The environmental clearance
dated 19.4.2010 was followed by forest clearance dated
                                                                       E
 22.4.2010 (ex-post facto clearance) granted by MoEF. This
 letter refers to letter of the State Government dated 19.7.2007
 forwarding its proposal for diversion of 116.589 Ha of forest
 land for Lime Stone Mining in favour of M/s. Lafarge wherein
 prior approval of Central Government was sought. The said
 proposal of the State Government was examined by FAC                  F
 constituted by Central Government under Section 3 of the 1980
 Act. Thus, forest clearance was granted by MoEF vide letter
 dated 22.4.2010 which again stipulated further conditions to be
 complied with by the project proponent. Accordingly on
 26.4.2010 learned AGI submitted before this Court that M/s.           G
 Lafarge may be permitted to resume the!' mining operations
 subject to compliance of conditions enumerated in the order
lpassed by MoEF on 22.4.2010. However, this Court ordered
 that before it grants permission to resume the mining
 operations it was imperative that plans should be drawn up and        H
    992      SUPREME COURT REPORTS                   [2011] 7 S.CR

A relevant reports be placed before this Court based on a
  comprehensive engineering and biological study including
  assessment of flora and fauna. A study report was submitted
  by NEHU on June, 2010 in which it has been stated that the
  forests in the said area can be categorized into tropical moist-
B deciduous forest, tropical semi-evergreen forest, savanna,
  subtropical broadleaved forest, forest gardens, orchards etc.
  Regarding the core area, the report states that the broken up
  area (already mined) was 38.089 Ha; that the said area was
  devoid of any vegetation and could be characterized by
c limestone floor and benches. However, the vegetation in the
  test of the core area (i.e. proposed mining area) had tropical-
  moist deciduous type of vegetation with variable canopy cover
  and mostly sparse: It further states that the density of plants is
  very low due to rocky terrain and low soil content. It further states
  that only a few trees described in that paragraph are present
0
  in the undisturbed core zone. On compliance of various
  conditions imposed by MoEF including payment of
  compensatory afforestation, penal compensatory afforestation
  and NPV with interest as well as the reports submitted by
E various authorities were placed before the Expert Appraisal
  Committee on 29.6.2010 and 21. 7.2010 pursuant to the
  directions of the Supreme Court vide order dated 26.4.2010.
  According to the minutes of Expert Appraisal Committee, the
  conditions and environmental safeguards stipulated by MoEF
  while according environmental clearance on 9.8.2001 and
F 19.4.2010 were comprehensive enough to mitigate any
  adverse impacts of the project and to protect the environment
  if implemented effectively. The minutes of the meeting of the
  Expert Appraisal Committee dated 21.7.2010 also recites that
  various reports were considered by the Committee. It also
G recites the fact that the Government of Meghalaya had
  addressed a letter to MoEF on 12.7.2010 conveying their
  recommendations for the grant of formal approval under Section
  2 of the 1980 Act for diversion of 116. 589 Ha of forest land for
  Lime Stone Mining. On 21.10.2010 M/s. Lafarge submitted a
H compliance chart of 31 conditions.
            LAFARGE UMIAM MINING PRIVATE LIMITED               993
    TN. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

  Submissions                                                        A

       9. According to the learned Amicus Curiae, it is obvious
1 from all the documents that have come on record including
  those filed by M/s. Lafarge that permissions under EIA
  Notification, 1994 (as amended) under Section 3 of the 1986 8
  Act have been obtained without a candid disclosure of the facts.
  That, even if it is held that in cases of bona fide mis-
  interpretation of statutory provisions and Rules the project stood
  commenced without obtaining prior permission as mandated
  under Section 2 of the 1980 Act, save and except in cases of C
  absolute candor and where the want of such permission is
  solely and entirely on account of bona fide doubt as to the nature
   and character of the land and /or statutory regime applicable
  to such projects, no permission should be granted specially to
  private projects established only for pro.fit where the project
  presents a 'fait accompli'. The learned Amicus submitted that 0
  over the years we find commencement of projects without
  obtaining prior permission as mandated under Section 2 of the
  1980 Act and, when detected, the project proponent(s) falls back
  on the plea of 'fait accompli'. According to the learned Amicus,
  time has, therefore, come for this Court not to regularize such E
  projects which are commenced without obtaining prior
  permission under the 1980 Act except in cases of absolute
   candor and where the want of permission is solely and entirely
   based on account of bona fide doubt as to the nature and
   character of the land and/ or the statutory regime applicable to F
  such projects. According to the learned Amicus, barring the
  above exceptions, this Court should direct removal of the
  project and restoration of the environment wherever it is
  possible or to take over the project to ensure that all gains from
  such projects are allowed to be used only for those whose rights G
  have been violated. In support of his above submissions,
  learned Amicus placed reliance on the report of Chief
  Conservator of Forests (C) dated 1.6.2006 addressed to the
  MoEF in which it was stated that the mining lease area around
  the developed benches has been found surrounded by thick H
    994      SUPREME COURT REPORTS                    [2011] 7 S.C.R. ·


A   natural vegetation cover with sizeable number of tall trees; that,
    the said vegetation including the trees was being cleared for
    developing the mine benches; that, the wood obtained from
    felling of trees was being collected by Nongtrai Village Durbar;
    and that, the said report of the Chief Conservator of Forests
B   (C) dated 1.6.2006 contradicts the Rapid EIA report submitted
    by the project proponent which describes the land in question
    as waste land. The learned Amicus also relied upon the second
    report dated 9.4.2007 again by the Chief Conservator of
    Forests (C) based on his site visit on 7.4.2007 in which report
c   it has been stated that the mining lease lies in the midst of virgin
    and natural forest. According to the said report, the said mine
    in question is operating on forest land without clearance under
    the 1980 Act. According to the said report, calling the area I
    site by any other name than a forest would be travesty which
0   could only be assigned to an ulterior motive of obtaining
    exemption or avoiding taking prior approval of Government of
    India under the 1980 Act. The learned Amicus also placed
    reliance on the report dated 11.5.2007 of the Principal Chief
    Conservator of Forests. In the said report dated 11.5.2007, the
E   Principal Chief Conservator of Forests also agreed with the
    view of the Chief Conservator of Forests (C) stating that the
    project proponent should have taken permission under the
    1980 Act to start the operation in the area. According to the
    learned Amicus, though the mine commenced commercial
    production w.e.f. October, 2006, the said commencement was
F   based on approvals granted by statutory authorities on the
    assumption that the mining lease area is a non-forest land. In
    this connection, learned Amicus pointed out that the entire case
    of the project proponent is based on only one certificate issued
    by DFO, Khasi Hills Division dated 13.6.2000 in which it has
G   been certified that the minlng site for limestone mining project
    at Nongtrai, East Knasi Hills District, Meghalaya is not a forest
    area in terms of the order of this Court dated 12.12.1996 and
    that it does not fall under any notified reserved or protected
    forests. In the said certificate, it has been further stated that the
H   project site is on Karst topography which supports only a
         LAFARGE UMIAM MINING PRIVATE LIMITED                995
 TN. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

sporadic growth of a few trees shrubs and creepers. Besides A
the said certificate dated 13.6.2000, the project proponent also
seeks to place reliance on letters dated 28.4.1997 and
27.8.1997 addressed by Khasi Hills Autonomous District
Council which took the view that the area is a non-forest land.
According to the learned Amicus, it is not open to the project .B
proponent to rely upon the certificate of DFO dated 13.6.2000
as the said certificate was given without any intimation to the
higher authorities and that an inquiry has been instituted to
determine the circumstances in which the certificate was issued
by DFO. Learned Amicus further pointed out that the c
prospecting licence held by the project proponent was allowed
to be converted into a mining licence in 1997 which was after
the order of the Supreme Court dated 12.12.1996. That apart,
there is a special law in the State of Meghalaya, i.e. The United
Khasi-Jaintia Hills Autonomous District (Management and D
Control of Forests) Act, 1985 under which forest has been
defined to mean an area in which there are twenty five trees
per acre. Thus, according to the learned Amicus by all these
definitions the area in question is a forest. Thus, according to
the learned Amicus even if the project proponent ultimately E
succeeded in getting forest clearance under Section 2 of the
1980 Act on 22.4.2010 since the said project stood established
originally in the forest area in a brazen violation of the 1980 Act
such a project cannot be allowed to be regularized by grant of
permission ex-post facto dated 22.4.201 O.
                                                                    F
     10. Shri Shyam Divan, learned senior counsel appearing
on behalf of Shella Action Committee (SAC) while adopting the
submissions of the learned Amicus Curiae with regard to the
project being illegal, submitted that having regard to para 4.3.1
of the National Forest Policy, 1988, tropical rain/moist forest     G
are required to be totally safeguarded. According to SAC the
forest in the region is a tropical moist forest and no forest
clearance ought to have been granted because of the
ecological significance recognized by the 1988 Policy.
According to SAC this fact was known to M/s. Lafarge at all         H
    996      SUPREME COURT REPORTS                 [2011] 7 S.C.R.

A material times as can be seen from the Rapid EIA Report
  prepared by NEHU which specifically states that the vegetation
  at the study site is a mixed moist deciduous forest. Reliance
  is also placed by the learned counsel ori the assessment of
  floral diversity prepared by NEHU in June, 2010 which indicates
B that the forest in the study area can be categorized into tropical
  moist-deciduous forest, tropical semi evergreen forest,
  savanna, sub-tropical broad leaves forest, forest garden,
  orchards and riparian forest. According to the said assessment
  of 2010, the vegetation in the core area is tropical moist-
C deciduous types whereas the vegetation in the proper zone can
  be categorized into tropical and sub-tropical types. Thus,
  according to the learned counsel having regard to the
  undisputed position emerging from the record the subject area
  is covered by a tropical moist forest deserving highest degree
  of ecological protection and therefore this Court should set
0
  aside the environmental clearance dated 9.8.2001 given under
  Section 3 of the 1986 Act by MoEF. In this connection it may
  be mentioned that SAC has also moved this Court by way of
  I.A. No. 2937 of 2010 seeking revocation of the environmental
  clearance dated 9.8.2001. They have also challenged the
E revised environmental clearance dated 19.04.2010 granted by
  MoEF as also Stage-I forest clearance dated 22.04.2010
  issued by MoEF.

          11. According to the learned counsel, M/s. Lafarge was
F duty bound to make an honest disclosure of all facts when
  seeking environmental and forest clearances as it is an
  express requirement under Clause 4 of the EIA notification
  1994. That, where a false information, false data, engineered
  reports are submitted or factual data is concealed, the
G application is liable to be rejected, and where granted, it is
  liable to be revoked. According to SAC, M/s. Lafarge had given
  an express undertaking in its application for environmental
  clearance dated 17.4.2000 that if any part of the information
  submitted was found to be false or misleading the project
H clearance could be revoked at M/s Lafarge's risk and cost.
           LAFARGE UMIAM MINING PRIVATE LIMITED                997
  T.N. GO.DAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

 According to SAC, the region where the mining is taking place        A
 and with regard to which permissions were obtained is
 governed by a specific local Act and Rules framed thereunder,
 namely, United Khasi Jaintia Hills Autonomous District
 (Management and Control of Forests) Act, 1958 which Act was
 enacted by the District Council of the United Khasi Jaintia Hills    B
 Autonomous District in exercise of its powers under the Sixth
 Schedule to the Constitution of India. According to the learned
 counsel, the 1958 Act classifies forests and regulates forest
 resource management and use and applying the definition of
 "forest" under Section 2(f), the region where the mining is taking   c
  place is a forest as the said area has not less than 25 trees
 per acre. Thus, according to the learned counsel for SAC, it
 ought to be assumed that the officials of M/s. Lafarge had full
 knowledge of the local law as well as the forest cover and the
 lay out of the land. From every perspective, Mis. Lafarge could      D
  not have commenced the project without. a detailed survey of
 the physical topography of the land and the forest cover. Thus,
  M/s. Lafarge had knowledge of the forest cover in the region
 and yet it falsely withheld this information from the concerned
 authorities including the MoEF. In this connection, learned          E
 counsel placed reliance on the NEHU Report of 1997, letter
  dated 1.6.2006 from the Chief Conservator of Forests (C) to
  the MoEF, letter dated 9.4.2007 from the Chief Conservator of
·Forests (C) to the Government of Meghalaya and assessment
  of floral diversity prepared by NEHU in June, 2010. According
, to the learned counsel, despite knowledge of the definition of      F
  "forest" and the provisions of the 1958 Act, the government
  officials issued letters containing incorrect information in
  relation to the forest cover. These letters are the letter dated
  28.4.1997 from Khasi Hills Autonomous District Council, letter
  from the Deputy Commissioner, East Khasi Hills District dated       G
  10. 7.1997 enclosing a spot inquiry report which stated that
 there was no forest on the land proposed to be leased out, letter
 dated 27 .8.1997 from Khasi Hills Autonomous District Council
 granting NOC on the basis that there was no forest and
 certificate dated 13.6.2000 issued by DFO, Khasi Hills Division      H
    998      SUPREME COURT REPORTS                  [2011] 7 S.C.R.


A   stating that there was no forest on the land proposed to be
    leased out. According to the learned counsel, the environmental
    clearance dated 9.8.2001 issued by MoEF was premised on
    "No diversion of forest land or displacement of people is
    involved". According to the learned counsel, the said premise
B   is per se incorrect as there is a tropical moist - deciduous
    forest in the area being mined. According to the le.arned counsel,
    the environmental clearance dated 9.8.2001 was clearly
    granted on the basis of false representations made by M/s.
    Lafarge regarding absence of forests; engineered reports
c   projecting the site as "a near wasteland"; and the concealment
    of factual data available with M/s. Lafarge including the 1997
    NEHU Report which showed the subject land as forest land.
    Thus, according to the learned counsel, the MoEF ought to
    revoke the environmental clearance dated 9.8.2001 having
    regard to Para 4 of the EIA Notification 1994 and inasmuch as
0
    the MoEF has failed and neglected to revoke the clearance
    dated 9.8.2001, this Court may quash the said clearance.
    According to the learned counsel, the environmental clearance
    dated 9.8.2001 is the parent clearance and, consequently, the
    revised environmental clear~nce dated 19.10.2010 (the correct
E   date is 19.4.2010) must automatically fall if the parent clearance
    is quashed. In any event, the learned counsel submitted that the
    revised clearance is liable to be set aside since the mandatory
    procedure of conducting a public consultation had not taken
    place. According to the learned counsel, a public consultation
F   is mandatory in terms of para 7 of the EIA Notification dated
    14.9.2006. Such consultation has not taken place. The public
    hearing held on 3.6.1998 was without a disclosure of the forest
    and, hence, there has been no public consultation in
    accordance with para 7 of the EIA Notification dated 14.9.2006.
G   Thus, according to the learned counsel, the revised
    environmental clearance dated 19.4.2010 is liable to be
    quashed on the ground of non-compliance of the mandatory
    provisions of the EIA Notification of 2006. According to the
    learned counsel, consequently, the stage-I forest clearance
H   dated 22.4.2010 is also liable to be rejected. It may be noted
           LAFARGE UMIAM MINING PRIVATE LIMITED                999
   TN. GODAVARMAN THIRUMULPAD v. U.O.l[S.H. KAPADIA, CJI.]

 that the stage-I forest clearance dated 22.4.2010 has been            A
 granted by FAC of MoEF. The learned counsel submits that
 under National Forest Policy, 1988 tropical rain/ moist forest
 is required to be totally safeguarded. That, it is a no-go area.
 According to the learned counsel, since the region where mining
 is taking place falls within tropical rain/ moist forest, FAC ought   B
 not to have given the clearance on 22.4.2010. For the afore-
 stated reasons, it is the case of SAC that both on account of
 the nature of the land in question and the conduct of M/s.
 Lafarge, this Court should dismiss the IA No. 1868 of 2007 filed
 by Mis. Lafarge and that the IA No. 2937 of 2010 filed by SAC         c
 se~king revocation of the parent environmental clearance dated
 9.8.2001 and revised environmental clearance dated 19.4.2010
 and forest clearance dated 22.4.2010 be allowed.

       12. On the nature of the land in question, learned Attorney
  General submitted that in the EIA Report (NEHU Report),              D
  annexed along with the application dated 1.9.1997 for grant of
  environmental clearance, a description of the vegetation area
  at the proposed mining site which is distributed in three distinct
  layers indicated that the third and the lower layer consisted of
  shrubs and herbs and their poor growth was due to lack of soil.      E
  It was also mentioned that the majority of valuable timber trees
  had already been extracted from the mining site in the past in
· Meghalaya by the tribals who lived on timber. In para 4.9 of the
  Report the site was described to be mostly covered with pole
  sized trees, shrubs and herbs. This EIA Report did not make          F
  reference to the Certificate dated 28.4.1997 of the Khasi Hills
  Autonomous District Council, the Spot Inspection Report dated
  10.7.1997 nor the Certificate dated 27.8.1997 issued by the
  Council all of which referred to absence of forest. According to
  the learned Attorney General at each stage MoEF had raised           G
  queries and requisitions and after a thorough probe MoEF gave
  ultimately Environment Clearance on 19.4.2010 and 22.4.2010
  being the Forest Clearance. In this regard it was pointed out
  by MoEF vide letter dated 24.10.1997 that the EIA Notification
  1994 was amended on 10.4.1997 making public hearing                  H
    1000    SUPREME COURT REPORTS                   [2011) 7 S.C.R.


A. mandatory for the development projects listed in Schedule-I of
   the Notification. Consequently, the proposal required two stage
   clearance, namely, site as well as project clearance. This is the
   reason why the project proponent made Site Clearance·
   application on 23.9.1998. Before that the project proponent
B approached the Meghalaya State Pollution Control Board for
   consent to establish limestone mining project. Similarly, a
   public hearing' notice was given on 27.4.1998. The public
   hearing was conducted on 3.6.1998. This was followed by Site
   Clearance Application dated 23.9.1998. All these steps were
c taken by Mis. LMMPL, the predecessor of Mis. Lafarge. Even
   before granting of the Site Clearance on 18.6.1999, a letter
   dated 8.4.1999 was received from M/s._LMMPL sending a
   certificate dated 20.3.1999 from DFO, Khasi Hills Division,
   Shillong indicating absence of forest. Thus, at the stage of Site
   Clearance MoEF had two certificates before it, one dated
D 27.8.1997 issued by the Executive Committee, Khasi Hills
   Autonomous District Council and the other being the certificate
   dated 20.3.1999 issued by DFO, both indicating absence of
   forest. To the same effect is the main application for
   Environmental Clearance dated 17.4.2000. One more fact
E needs to be mentioned. Along with the application for
   Environmental Clearance dated 17.4.2000, an EIA Report
   prepared by Environmental Resources Management India Pvt.
   Ltd. giving a detailed description of the topography of the area
   was forwarded to MoEF. It was called as Karst Topography. In
F that Report it was categorically stated that the project area did
   not fall in the designated forest land; that the terrain at the site
   was described as Karst Topography which did not allow normal
   plant growth. Despite clarification, MoEF wrote a letter dated
   1.5.2000 to the project proponent seeking further clarification
G as to whether there existed forest in terms of the Supreme Court
   order dated 12.12.1996 and if so a certificate to that extent
   should be obtained from the local DFO. In reply, M/s. LMMPL
   forwarded a certificate of DFO dated 13.6.2000 which stated
   that the proposed mining site for limestone mining project at
H Phalangkaruh, Nongtrai, East Khasi Hills District, Meghalaya
         LAFARGE UMIAM MINING PRIVATE LIMITED             1001
 TN. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.)

leased out by M/s. LMMPL is not a forest area as per Supreme A
Court judgment and it does not fall under any of the notified
reserves or protected forests. The area is covered with Karst
topography and supports only a sporadic growth of a few trees,
shrubs and creepers. The proposal of M/s. LMMPL was once
again discussed at the meeting of the Expert Committee B
(Mining) held on 19-20.10.2000. This Committee sought further
information and clarification, one of the clarifications sought was
a detailed survey of the plant and animals to be carried out with
the help of BSI and ZSI officers situated in Shillong. It also
sought a video film of the site and other areas. Accordingly, on c
9.2.2001 M/s. LMMPL gave the requisite response as desired
by MoEF as well as additional information was also provided
in respect of a comprehensive survey and Flora and Fauna
Report dated January, 2001 of Dr. AK. Ghosh (Former Director
ZSI). The said Report of January, 2001 extensively dealt with 0
tropical semi-evergreen forest at different elevations; This
Report of Dr. Ghosh (Centre for Environment and Development) · .
was 'placed before the Expert Committee on 7.3.2001. The
minutes of the meeting indicate that a video film of the site was
also shown. The Report indicates the Karst features, extensive E
flora and fauna survey carried out by the Centre for Environment
and Development in conjunction with the Botanical Survey of
India and Zoological Survey of India. After elaborate discussion,
the Expert Committee recommended Environmental Clearance
of the project once again subject to certain conditions. Even
after such recommendation, the MoEF once again wrote to the F
Chief Conservator of Forest, Meghalaya. This was on
19.4.2001 regarding Environmental Clearance. The Chief
Conservator of Forest (Wildlife Division) vide letter dated
1.6.2001 gave his comments as per the annexures which was
on the basis of Field Verification Report submitte.d by DFO, G
Khasi Hills Wildlife Division, Shillong. According to the Chief
Conservator of Forest (Wildlife Division) the project area is
sloppy, ending in the nearby plains of Bangladesh and covered
wholly by degraded forests and grassland vegetation. Further,
he stated that there is a motorable road used for traffic and the H
    1002    SUPREME COURT REPORTS                  [2011] 7 S.C.R.

1
A forest is farther away up the slope. It was concluded that there
  was no likelihood of any wildlife presence in the area. Thus,
  according to the learned Attorney General it is incorrect to say
  that the EIA clearance dated 9.8.2001 was granted without
  proper consideration. There has been a detailed consideration
B at every stage. That, at the time of the submission of the
  application for Site Clearance dated 23.9.1998 there existed
  an NOC of the Pollution Control Board, a certificate dated
  27.8.1997 issued by East Khasi Hills Autonomous Council and
  thus it cannot be said that the EIA clearance indicated non-
e application of mind or that it was liable to be set aside on the
  ground that the EIA Division of the MoEF did not properly
  consider the matter. In the circumstances, according to the
  learned Attorney General, it cannot be said that the
  Environmental Clearance dated 9.8.2001 came to be issued
  by MoEF arbitrarily, capriciously or whimsically. At that stage
0
  of Environmental Clearance dated 9.8.2001 existence of the
  forest land was not established. If it had been so established /
  then the project proponent had to obtair forest clearance under
  the 1980 Act also.

E      13. At the outset, Shri F.S. Nariman, learned senior counsel
  appearing on behalf of Mis. Lafarge adopted the submissions
  made on behalf of MoEF by the learned Attorney General. As
  regards the nature of the land, the learned counsel invited our
  attention to the approved mining plan which was submitted by
F LMMPL to the Regional Controller of Mines, IBM, Calcutta for
  limestone extraction which plan was duly approved in February,
  1998. In this approved mining plan, the project area was
  described as having Karst topography with the presence of
  deep caverns, caves and cracks which permit surface water
G to percolate downwards and circulate underground only to
  reappear as hills side springs at certain outlets. According to
  the mining plan, the terrain over the entire area is rocky with
  very little soil and devoid of hard overburden rocks. The
  vegetation of the area is seen to be mixed deciduous type.
H There is no agricultural activity in the area as thin soil cover is
           LAFARGE UMIAM MINING PRIVATE LIMITED             1003
  T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

  unable to sustain crops. That, even according to the NEHU A
  Report of 1997, the site selected for mining has commercially
  viable limestone deposit.. According to the said report, the land
  was left unused covered with degraded forests and this was
  the reason why the Durbar preferred to lease out the site to
  LMMPL for mining. Other factors responsible for selecting the B
  proposed site were availability of water resource, away from
  human habitation, closer to the cement plant at Chhatak, easy
  accessibility by road and minimum damage to the rich
  biodiversity (see page 19 of the NEHU Report). The learned
  counsel submitted that Section 2 of the 1980 Act stipulates _ c
  "prior approval". Thus, prior determination of what constituted
  forest land is required to be done. This lacuna in the 1980 Act
  was supplied by the order of this Court dated 12.12.1996 which
  inter alia provided that every State Government shall first
  constitute an Expert Committee within one month and based
                                                                    0
  on its recommendations the State Government will identify the
  land as forest land on the criteria mentioned in the said Order.
  The learned counsel also invited our attention to Rule 4 of the
  Forest (Conservation) Rules, 1981 in which it is stipulated that
  every State Government seeking prior approval under Section
  2 of the 1980 Act shall send its proposal to the Central E
' Government in the form appended to the Rules. Thus, according
  to the learned counsel, under the 1980 Act read with the Rules,
  the requirement of submission of the proposal for forest
  diversion under the 1980 Act is exclusively the obligation of the
  State Government. This was also spelt out in the guidelines F
  issued on 25.10.1992. Later on the Government of India
  amended the said guidelines in respect of the diversion of
  forest lands for non-forest purpose under the 1980 Act by letter
  dated 25.11.1994 and in para 2.4 the concept of "User Agency"
  was introduced but that concept was made applicable only to G
  cases of renewal of mining leases. However, on 10.1.2003,
  Rule 4 of the 1981 Rules stood reframed (as Rule 6 of the 2003
  Rules) which inter alia provided that every "User Agency" who
  wants to use any forest land for non-forest purpose shall make
  its proposal in the specified form appended to the Rules to the H
    1004    SUPREME COURT REPORTS                   [2011) 7 S.C.R.


A concerned Nodal Officer along with the requisite information
  before undertaking any non-forest activity on the forest land;
  after receiving the proposal and if the State Government is
  satisfied that the proposal required prior approval under
  Section 2, it had to send the said proposal to the Central
B Government in the appropriate form within 90 days of the
  receipt of the proposal from the "User Agency". The threshold
  limit was kept at 40 hectares. Where the proposal involved
  forest land of more than 40 hectares, it was to be sent by the
  State Government to the Government of India with the copy to
c the Regional Nodal Officer. According to the learned counsel,
  insofar as M/s. Lafarge was concerned, its predecessor
  LMMPL was already given environmental clearance on
  9.8.2001 and while granting the clearance there was an
  express finding in the environmental clearance that "no
  diversion of forest land was involved". Thus, it was never
0
  stipulated at any time as a condition to the grant of
  environmental clearance dated 9.8.2001 that permission under
  the 1980 Act should be obtained. The learned counsel further
  pointed out that pursuant to the Order of this Court dated
  12.12.1996 an Expert Committee was formed by the State of
E Meghalaya vide notification dated 8.1.1997 with the Principal
  Chief Conservator of Forests as its Chairman. On 10.2.1997,
  the State of Meghalaya, on the subject of "Order of the Supreme
  Court dated 12.12.1996" wrote to the Khasi Hills Autonomous
  District Council that the land in question was reckoned by the
F State as non-forest land. The Council was asked to inform/
  clarify whether the area in question under the mining lease fell
  on forest land as per the records of the District Council. By letter
  dated 28.4.1997, the Council informed the State Government
  that the area in question did not fall on forest lands. Moreover,
G pursuant to the Order of this Court dated 12.12.1996, the
  Chairperson of the Expert Committee appointed by the State
  of Meghalaya also filed the report of the Expert Committee in
  which it was expressly stated that the mining lease granted by
  the State Government did not fall on the forest land. Thus, it was
H under the above circumstances, having regard to the order of
           LAFARGE UMIAM MINING PRIVATE LIMITED             1005
  T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

 this Court dated 12.12.1996, that the State Government was               A
 not required to and it did not submit any proposal to the Central
 Government under Section 2 of the 1980 Act read with Rule 4
 of the 1981 Rules as it treated the site in question as a non-
 forest land. This position has not been disputed by MoEF. Thus,
 according to the learned counsel, there was no obligation on             B
 the project proponent or on the State of Meghalaya to move
 MoEF under Section 2 of the 1980 Act.

        14. According to the learned counsel, what has happened
  in the present case is that almost after 9 years there was a            C
  change of view on the part of MoEF, i.e., between 1997 and
  2007. Under this change of view of MoEF, the report of t~e
  Chairperson of the Expert Committee of the State of Meghalaya
  which report stood annexed to the affidavit dated 3.5.1997 in
  this Court to the effect that the mining lease did not fall on forest
  land was given a go-by and an entirely new stand was taken              D
· only on and from 2006-07, One more aspect has been
  highlighted by the. learned counsel for M/s. Lafarge. On
  1.6.2006, the Chief Conservator of Forests (C), ·Shri Khazan
  Singh stated that he had visited the limestone mining project
  of M/s. Lafarge on 24.5.2006 when he found that the mining              E
  lease area is surrounded by thick natural vegetation cover with
  sizeable number of tall trees. According to the Chief
  Conservator of Forests (C), the Rapid EIA Report (ERM India
   Pvt. Ltd.) submitted by the project proponent describes the land
  as waste land which was not a fact. Thus, according to the Chief        F
  Conservator of Forests (C), the project proponent should be
  directed to obtain clearance under the 1980 Act and not to
  expand mining activities till such clearance is obtained. After
  the said letter dated 1.6.2006, the then Principal Chief
  Conservator of Forests now stated vide letter dated 11.5.2007           G
  that he too agreed with the opinion of the Chief Conservator of
   Forests (C), Shri Khazan Singh. However, according to the
   learned counsel, even the Principal Chief Conservator of
   Forests stated in his letter dated 11.5.2007 that though Mis.
   Lafarge had failed to take forest clearance, they were not at          H
    1006     SUPREME COURT REPORTS                   [2011] 7 S.C.R.


A fault because of the certificate of the Council that the site fell in
  a non-forest area. The letter dated 11.5.2007 further goes on
  to state that the activities of the company will provide
  employment to large number of local tribals and rural people
  and that since the company had applied for forest clearance
B on 3.5.2007 forest clearance may be considered. Thus,
  according to the learned counsel, there was no collusion
  between M/s. Lafarge and the DFO as alleged to get the
  certificate dated 13.6.2000.

C        15. On the question of alleged suppression by M/s.
   Lafarge from MoEF of the NEHU Report 1997, learned
   counsel submitted that an application was prepared and
   submitted by M/s. LMMPL for Environmental Clearance to
   MoEF vide letter dated 1.9.1997; along with the said letter there
   were several enclosures. One of the enclosures was the NEHU
D Report, the other was NOC from Khasi Hills Autonomous
   Council for mining operation in the project area. This letter dated
   1.9.1997 was duly acknowledged by MoEF vide its letter dated
   24.10.1997. As stated above, in view of the amendment to the
   Notification of 1994, the project proponent was advised to make
E ·a new proposal in two different parts, namely, site clearance
   and project clearance. Pursuant to the said advice the project
   proponent preferred Site Clearance Application on 23.9.1998
   made to MoEF in which once again the project proponent
   enclosed maps which were verbatim reproduction of the relevant
F pages (including maps) in the NEHU Report. MoEF granted
   Site Clearance on 18.6.1999. Further even the Mining Plan
   submitted by the project proponent contained a Chapter on
   Environment Management Plan (EMP) which is a verbatim
   copy of Chapter 6 of NEHU Report. The said plan was
G approved by Bureau of Mines. Moreover, in the Sociological
   and Ecological Impact Assessment Report dated 16.2.1998
   prepared by ERM it has been expressly stated that
   Environmental Impact Assessment was carried out in 1997 and
   it was submitted to Mo,EF in September, 1997. To the same
H effect one finds reference in the Executive Summary of the EIA
          LAFARGE UMIAM MINING PRIVATE LIMITED             1007
 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

of proposed Limestone Mining of 9.4.1998 by ERM. According        A
to the learned counsel the above documents indicate that there
was no suppression by the project proponent from MoEF of
NEHU Report of 1997 as alleged. One of the points which SAC
has argued before us was absence of public hearing as
required under EIA Notification of 1994. On this aspect Shri      B
Nariman, learned counsel appearing on behalf of M/s. Lafarge
invited our attention to the requisite correspondence. On
22.4.1998 a Notification was issued by Meghalaya State
Pollution Control Board of constituting an Environmental Public
 Hearing Panel to evaluate and assess the documents               c
submitted by the project proponent and to verify the comments,
views and suggestions made by the public on the proposed
project. This Notification was issued in terms of the EIA
Notification of 1994, as amended on 10.4.1997. On 27.4.1998
a public notice was also issued by MPCB informing the general     0
public about the limestone project of M/s. LMMPL. On 5.5.1998
 MPCB informed two local newspapers in writing asking them
to publish the Khasi translation of the public notice. On
6.5.1998 MPCB wrote to Shella Confederacy asking its
 Headman to display two sets of executive summary each in
 Khasi and English. On 13.5.1998 the State PCB wrote to the       E
 Director of Information asking him to publish public notice in
 Shillong Times. On 25.5.1998 the State PCB wrote to the
 Secretary, Shella village informing him of date and time of
 public hearing. 31 members attended the public hearing on
 3.6.1998. As stated above, the entire proceedings have been      F
 recorded in the minutes of the meeting. On 4.9.1998 the Deputy
 Director, Govt. of India, MoEF forwarded a letter to the State
 PCB enclosing proceediRgs of the public hearing conducted
 for proposed limestone mining project of M/s. LMMPL,
 Nongtrai. Thus, according to the learned counsel there is no     G
 merit in the submission advanced on behalf of SAC that public
 hearing as per EIA Notification of 1997 did not take place.

     16. Shri Nariman, learned counsel appearing on behalf of
.M/s. Lafarge further submitted that on facts and circumstances   H
    1008     SUPREME COURT REPORTS                  (2011] 7 S.C.R.

A   of the present case it is clear that both the project proponent
    and the MoEF were at all relevant times under the bona fide
    impression that the project site was not forest land; in fact the
    consistent view of all authorities, including MoEF, was that the
    project site (mining lease area) was not located on "forest land".
s   In this connection our attention was invited to the application
    dated 23.9.1998 made by Mis. LMMPL to MoEF for Site
    Clearance, the NOC from KHADC dated 27.8.1997 stating that
    the project area does not fall within a forest land, grant of Site
    Clearance on 18.6.1999 by MoEF, application for
c   Environmental Clearance dated 17 .4.2000, grant of
    Environmental Clearance on 9.8.2001. All these documents and
    series of letters exchanged during the relevant time, according
    to the learned counsel, indicate that both the project proponent
    and MoEF were at all relevant times under the bona fide
    impression that the project site (mining lease area) was not
0
    located on forest land.

       17. Learned counsel further submitted that after stop mining
  order dated 30.4.2007 and the direction of CCF(C) of even
  date to obtain Forest Clearance under Section 2 of the 1980
E Act, an application was filed by Mis. Lafarge on 3.5.2010 to
  the State Government under Rule 6 of the Forest Conservation
  Rules, 2003, as amended in 2004. Accordingly, on 11.5.2007
  the Principal Chief Conservator of Forest, Meghalaya wrote to
  the Government of Meghalaya agreeing with the views of the
F CCF (C) to the effect that Mis. Lafarge should obtain
  permission under the 1980 Act. At the same time, as stated
  above, the PCCF made it clear that no fault lay on the door step
  of Mis. Lafarge for not seeking Forest Clearance·earlier.
  Accordingly, on 19.6.2007 a formal proposal was made by
G State Government on 19.6.2007 to MoEF for diversion of
  116.589 Ha of forest land for limestone and other ancillary.
  activities in favour of Mis. Lafarge in Khasi Hills Division under
  Section 2 of the 1980 Act. Thus, all necessary steps were
  taken, as indicated hereinabove, by M/s. Lafarge which
H ultimately culminated in the Environmental Clearance by MoEF
   i      LAFARGE UMIAM MINING PRIVATE LIMITED             .1009
 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

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

Issues

      18(i) Nature of land;                                         8

      (ii)   Whether ex post facto environmental and forest
             clearances dated 19.4.201 O and 22.4.201 O
             respectively stood vitiated by alleged suppression
             by M/s. Lafarge regarding the nature of the land. In C
             this connection it was contended by learned Amicus
             and by the learned counsel appearing on behalf of
             SAC that the EIA clearance under Section 3 of the
             1986 Act dated 9.8.2001 (being a parent
             clearance) was obtained by M/s. Lafarge on the o
             basis of "absence of forest" with full knowledge that
             the project site was located on forest land.

Findings

(a) Legai Position.                                                 E

     19. Universal human dependence on the use of
environmental resources for the most basic needs renders it
impossible to refrain from altering environment. As a result,
environmental conflicts are ineradicable and environmental
                                                                    F
protection is always a matter of degree, inescapably requiring
choices as to the appropriate level of environmental protection
and the risks which are to be regulated. This aspect is
recognized by the concept of "sustainable developmenf'. It is
equally well-settled by the decision of this Court in the case of   G
Narmada Bachao Andolan v. Union of India and Others [(2000)
10 sec 664] that environment has different facets and care of
the environment is an on-going process. These concepts rule
out the formulation of across-the-board principle as it would
depend on the facts of each case whether diversion in a given
case should be permitted or not, barring "No Go" areas (whose       H
    1010.    SUPREME COURT REPORTS                  [2011] 7 S.C.R


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

       20. Making these choices necessitates decisions, not only
B about how risks should be regulated, how much protection is
  enough, and whether ends served by environmental protection
  could be pursued more effectively by diverting resources to
  other uses. Since the nature and degree of environmental risk
  posed by different activities varies, the implementation of
C environmental rights and duties require proper decision making
  based on informed reasons about the ends which may
  ultimately be pursued, as much as about the means for attaining
  them. Setting the standards of environmental protection involves
  mediating conflicting visions of what is of value in human life.

D (b) Nature of the land

          21. In the NEHU Report of June, 1997 (Rapid EIA of
    Proposed Limestone Mining Project at Nongtrai, Meghalaya),
    a brief history of limestone mining in Khasi Hills of Meghalaya
E   is spelt out. It indicates that mining of limestone in Khasi Hills
    dates back to July 10, 1763 when an agreement was signed
    between East India Company and the Nawab of Bengal for
    preparation of chunam. Regular trade of limestone from Khasi
    Hills of Bengal started on and from 1858. Substantial revenue
    was earned by the British Government from these limestone
F   quarries as rentals, which was Rs. 23,000/- in 1858 and which
    subsequently stood increased to Rs. 67,000/- in 1878. The first
    historical account of exploitation of Nongtrai limestone dates
    back to 1885 when Don Rai of Shella obtained permits from
    the Wahadars (Head of Confederacy) of Shella to quarry
G   limestone in Nongtrai village. There are historical records about
    continuance cf 'imestone trade between Khasi Hills and Bengal
    up to 1947. The business declined after partition. Limestone
    mining and trade slipped into the hands of unorganized sector.
    According to the NEHU Report of 1997, today a number of
H   private parties quarry limestone using unscientific methods and
         LAFARGE UMIAM MINING PRIVATE LIMITED             1011
 TN. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

export it to counterparts in Bangladesh, often illegally. These     A
private parties sell the product at a very low price. This aspect
is also being examined by CEC which has now filed its report
in I.A. No. 3063 of 2011. One more aspect needs to be
highlighted. According to the State of Forest Report, 2001, the
North Eastern Hill State of Meghalaya is predominantly tribal       B
with 86% population being tribal. According to the NEHU Report
of 1997, approximately 60 settlements consisting of 50-200
inhabitants each with a total estimate population of 16500
persons exist within 10 km radius of the proposed mining site.
Under an agreement dated 29.9.1993 (lease agreement), the           c
village Durbar represented by a Special Committee headed by
the Headman as lessor granted lease of the limestone quarry
in Nongtrai to Mis. LMMC (the predecessor-in-interest of M/s.
LMMPL). Thus, an area of 100 hectares stood acquired on
lease basis for mining whose lessor was the village Durbar of
                                                                    0
Nongtrai. Coming to the topography of the area, one finds that
the limestone bearing area around Nongtrai and Shella villages
falls under Karst topography. Thi.s area falls on the southern
fringe of the Meghalaya plateau. Karst topography is
characterized by a" limestone caverns/ caves. The factum of
 limestone bearing area around Nongtrai and Shella falling          E
 under Karst topography is also borne out by the certificate
 dated 27.8.1997 issued by KHADC, Shillong. This Council is
 a constitutional authority under Sixth Schedule of the
 Constitution. As stated above, the limestone bearing area
 around Nongtrai and Shella falls on the southern fringe of         F
 Meghalaya plateau. The site is approachable from Shillong via
 Mawsynram and Nongtrai villages by a motorable road. The
 site is also accessible from Shillong by road via Cherrapunji.
 This road is wide enough for crushers and heavy machines to
 be brought from Shillong. The site is on the uneven terrain with   G
 a rugged topography. (See Rapid EIA Report submitted by
 ERM India Pvt. Ltd. dated 6.4.2000). According to the said
report, the Karst topography of the area supports sporadic
growth of a few tree shrubs. According to the NEHU Report of
 1997, the site selected for mining has commercially viable         H
     1012    SUPREME COURT REPORTS                 [2011] 7 S.C.R


A.   limestone deposit. The site was selected after thorough
     consultation with the concerned village Durbar who is the
     custodian of the land. The land was left unused covered with
     degraded forests and this was the reason for the Durbar to
     lease out the said land to the project proponent for mining. The
s    village Durbar also felt that in the area unscientific limestone
     quarrying was going on resulting in loss of revenue both to the
     State as well as the inhabitants of the village particularly
     because the said mining was undertaken by unorganized
     sectors and, thus, it was decided to enter into the lease with
c    the project proponent so that mining could be done on scientific
     basis. The site was also selected because of easy accessibility
     by road and less vegetation clearance stood involved. -
     According to the NEHU Report, the site is located in the area
     on the outskirts of the forest. (See page 19 of the said Report)

D    (c) Validity of ex post facto clearance

        22. An important argument 11as been advanced on behalf
  of SAC that the site clearance dated 18.6.1999 and EIA
  clearance dated 9.8.2001 were based on misrepresentation by
E M/s. Lafarge. They proceeded on the basis that there was no
  forest. That, both the said clearances stood vitiated by
  suppression of material fact of existence of forest by Mis.
  Lafarge and as a sequel the subsequent revised environmental
  clearance dated 19.4.2010 and forest clearance (Stage - I)
F dated 22.4.2010 stood vitiated. In this connection, it was
  submitted that having regard to Para 4.3.1 of the National
  Forest Policy, 1988 tropical rain/ moist forest is required to be
  totally safeguarded; that, the project is located in a tropical
  moist forest and no forest clearance ought to have been
  granted by MoEF because of the special ecological
G significance recognized by the 1988 policy. According to SAC,
  the fact that tropical moist forest existed in the area and
  continues to exist was known to Mis. Lafarge at all material
  times as can be seen from the NEHU Report of 1997 in which
  it has been categorically stated that the vegetation at the study
H
            LAFARGE UMIAM MINING PRIVATE LIMITED                 1013
   T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

  site is a mixed moist deciduous forest composed of deciduous           A
   and evergreen tree elements; that, in the same Report it has
   been further stated that the vegetation of the. area is a tropical
   semi-evergreen forest composed of deciduous and evergreen
   elements which is further corroborated by the assessment of
   Floral Diversity prepared by NEHU dated June, 2010 in which           B
   it has been stated that the forest in the study area is tropical
   moist deciduous forest, tropical semi-evergreen forest,
   savanna, sub-tropical broad leaves forest, forest garden,
   orchards and riparian forest; that, the vegetation in the unbroken
   area is tropical moist deciduous type with variable canopy            c
. cover mostly sparse. Thus, according to SAC and CEC, the
   undisputed position emerging from the record that the subject
   area is covered by a tropical moist forest deserving highest
   degree of ecological protection ought to have been taken into
   account by MoEF which was not done at the time of initial             0
   clearances dated 18;6.1999 and 9.8.2001. Shri Divan, learned
   senior counsel appearing for SAC submitted before us that the
   case in hand essentially deals with the decision making
   process in relation to the grant of environmental clearance and
   to test whether the decision making process stood up to judicial      E
   review. According to the learned counsel, the following basic
 ·points regarding the legal framework must be kept in view: -
   From the environmental perspective, in relation to a mining
   project, there are three main sets of permissions that are
  ,required to be obtained:
                                                                         F
        (i)   The first set of permissions is at the State level. This
              set of permissions primarily has to do with pollution.
              In each State or a group of States, a Pollution
              Control Board issues consent/ permit. These
              consents or permits are granted from a pollution           G
              perspective. The scope of enquiry is limited to
              pollution impacts. Obtaining such consents and
              permits are essential but they are not a substitute
              for compliance with other environmental laws.
                                                                         H
    1014        SUPREME COURT REPORTS                 [2011] 7 S.C.R.


A        (ii)    The second set of permissions, according to the
                 learned counsel, is with regard to environmental
                 clearance. The scope of environmental clearance
                 is wider than a pollution control clearance. The
                 authority granting environmental clearance will look
B                at broader impacts beyond pollution and will
                 examine the effect of the project on the community,
                 forests, wild life, ground water, etc. which are beyond
                 the scope of Pollution Control Board examination.
                 The exercise of granting environmental clearance
c                with regard to a limestone mining project of the
                 present magnitude requires MoEF clearance.

         (iii)    A clearance for diversion of forest under the 1980
                  Act which is granted by MoEF on the
                  recommendation of the FAC should logically ·
D                 precede the grant of environmental clearance as
                  the environmental clearance is broader in scope
                  and deals with all aspects, one of which may be
                  forest diversion.

E       23. Applying the said legal framework to the facts of the
  present case, the learned counsel appearing for SAC
  submitted that the MoEF, as the authority which decides on
  diversion of forests and which grants environmental clearances,
  is duty bound to examine the diversion application in the context
F of the 1988 Policy, particularly, where tropical moist forests are
  sought to be cleared by the project proponent. According to the
  learned counsel, where MoEF grants environmental clearance
  in ignorance of the existence of a forest due to mis-declaration,
  it is duty bound to take severest possible action against the
G party that made the false declaration for profit. According to the
  learned counsel, since impact assessment and EIA clearances
  are processes based on self declarations by the project
  proponent (s), the decision making by MoEF depends upon
  honest and cogent material supplied by the project proponent
  and since the said process is premised on a full and fair
H
          LAFARGE UMIAM MINING PRIVATE LIMITED             1015
 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJ!.]

disclosure of relevant facts by the project proponent, in cases        A
where material facts are not disclosed, the MoEF should
withdraw both the site as well as the environmental clearances.
According to the learned co\msel, the most important input in
this regard must be received by MoEF in the course of its
decision making from the public which is an essential check            B
for a failure to disclose correct facts or to have regard to
environmental issues that may have escaped the attention of
the project proponent. According to the learned counsel, the
requirement of public hearing is, thus, mandatory both under
the 1994 Notification and the 2006 Notification. That, the             c
requirement for payment of NPV does not automatically mean
that environmental clearance is to be granted.

     24. We are in full agreement with the legal framework
suggested by the learned counsel for SAC. There is no dispute
on that point. The question is confined to the application of the      D
legal framework to the facts of the present case. Can it be said
on the above facts that a mis-declaration was wilfully made by
Mis. Lafarge or its predecessor (project proponent) while
seeking site and environmental clearances? Was there non-
application of mind by MoEF in granting such clearances? Was           E
the decision of MoEF based solely on the declarations made
by the project proponent(s)?

     25. At the outset, one needs to take note of Section 2 of
the 1980 Act which stipulates prior approval. That Section refers      F
to restriction on the dereservation of forests or use of forest land
for non-forest purpose. It begins with non-obstante clause. It
states that "Notwithstanding anything contained in any other law
for the time being in a State, no State Government or other
authority shall make, except with the prior approval of the            G
Central Government, any order directing that any forest land or
any portion thereof may be used for any non-forest purpose".
This is how the concept of prior approval by the Central
Govemment comes into picture. Thus, prior determination of
what constitutes "forest land" is required to be done. By an
                                                                       H
    1016    SUPREME COURT REPORTS                 [2011] 7 S.C.R.

A order dated 12.12.1996 by a Division Bench of this Court in
  Writ Petition (C) No. 202 of 1995 with another in case of TN.
  Godavarman Thirumulpad v. Union of India, this Court
  directed each State Government to constitute within a specific
  period an Expert Committee to identify areas which are forests
s irrespective of whether they are so notified, recognized or
  classified under any law and also identify areas which were
  earlier forests but stand degraded, denuded or cleared. The
  Committee was to be headed by the Principal Chief
  Conservator of Forests. This order dated 12.12.1996, thus,
c clarified that every State Government seeking prior approval
  under Section 2 of the 1980 Act shall first examine the question
  relating to existence of forests before sending its proposal to
  the Central Government in terms of the form prescribed under
  the Forest (Conservation) Rules, 1981 (see Rule 4). Thus, the
  requirement of submitting the proposal for forest diversion
0
  under the 1980 Act is exclusively the obligation of the State
  Government. This position was spelt out initially in the
  guidelines dated 25.10.1992. However, later on, the
  Government of India amended the guidelines in respect of
E diversion vide letter dated 25.11.1994 and by the said letter
  the concept of "User Agency" stood introduced. On 10.1.2003,
  Rule 4 of the 1981 Rules stood reframed which inter alia
  provided that every "User Agency• who wants·to use any forest
  land for non-forest purpose shall make its proposal in the
  specified form appended to the Rules to the concerned Nodal
F Officer along with the requisite information before undertaking
  any non-forest activity on the forest land and after receiving the
  said proposal and if the State Government is satisfied that the
  proposal required prior approval under Section 2, the State
  Government had to send the said proposal to the Central
G Government in the appropriate form within the specified period
  of 90 days from the receipt of the proposal from the "User
  Agency•. At this stage, it may be noted that the earlier project
  proponent in the present case was Mis. LMMPL. That project
  proponent had obtained EIA clearance given by MoEF dated
H 9.8.2001 which clearance stood transferred to M/s. Lafarge only
           LAFARGE UMIAM MINING PRIVATE LIMITED             1017
  T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

on 30.7.2002. While granting environmental clearance dated               A
9.8.2001 there was an express finding to the effect that "no
diversion of forest land was involved". In terms of the order of
this Court dated 12.12.1996, an Expert Committee was in fact
formed by the State of Meghalaya vide notification dated
8.1.1997 with the Principal Chief Conservator of Forests as its          B
Chairman. On 10.2.1997, the State of Meghalaya had
addressed a specific letter to the Khasi Hills Autonomous
District Council, which as stated above is a Constitutional
Authority, stating that the land in question was reckoned as non-
forest land and the Council was asked to clarify whether the             c
area in question under the mining lease fell in the forest as per
the records of the Council. The Council by its letter dated
28.4.1997 had informed the State Government that the area in
question did not fall in the forest. Apart from the said letter, the
Chairperson of the Expert Committee appointed by the State               0
of Meghalaya being the Principal Chief.Conservator of Forests
also submitted his report in which it was expressly stated that
the mining lease granted by the State Government did not fall
in the forest. Since the mining lease granted by the State did
not fall in the forest, the State Government did not submit any          E
proposal to the Central Government under Section 2 of the 1980
Act as it treated the site in question as falling on the outskirts
of the forests. It is almost after nine years that there was a
change of view on the part of MoEF under which the report of
the Expert Committee headed by the Principal Chief
 Conservator of Forests was given a go-by. Between 1997 and              F
2007, the view which prevailed was that the project site stood
 located on the outskirts of the forests. In this connection, it needs
 to be stated that on 1.6.2006 for the first time the Chief
Conservator of Forests (C), Shri Khazan Singh came out with
the change of view which was ultimately accepted in 2007 by              G
 MoEF. According to the Chief Conservator of Forests (C), he
 had visited the limestone mining project of M/s. Lafarge on
24.5.2006 when he found that the mining lease area stood
surrounded by thick natural vegetation covered with sizeable
number of tall trees and in the circumstances he recommended             H
    1018    SUPREME COURT REPORTS                  [2011] 7 S.C.R.

A that the project proponent should be directed to obtain
  clearance under the 1980 Act and not to carry on the mining
  activities till such clearance is obtained. The most important fact
  is that subsequent to· the letter dated 1.6.2006, addressed by
  the Chief Conservator of Forests (C), Shri Khazan Singh, the
B Principal Chief Conservator of Forests agreed with the opinion
  of the Chief Conservator of Forests (C). This was by letter
  dated 11.5.2007. However, even according to the Principal
  Chief Conservator of Forests, who was the Chairperson of the
  Expert Committee appointed by the State Government, Mis.
c Lafarge was not at fault because the certificate indicating
  absence of forests was given by Khasi Hills Autonomous
  District Council. In fact the letter dated 11.5.2007 further goes
  to state that the activities of Mis. Lafarge will provide
  employment to a large number of local tribals and rural people
  and consequently the application.for forest clearance made by
0
  Mis. Lafarge without prejudice to their rights and contentions
  dated 3.5.2007 be considered by MoEF. Apart from the above
  circumstances, on 22.4.1998, a notifica1ion was issued by the
  State Pollution Control Board constituting an Environmental
  Public Hearing Panel to evaluate and assess the documents
E submitted by Mis. LMMPL. A public notice was also issued in
  local newspapers on 25.5.1998. The State Pollution Control
  Board also sent a letter to the Secretary, Shella Village
  informing him of the date and time of public hearing and
  accordingly on 3.6.1998, a public hearing did take place.
F According to the minutes of the meeting, 31 citizens of Shella
  Nongtrai, Pyrkan attended the hearing. In the hearing, the
  purpose, objective, composition and procedure of
  environmental public hearing was discussed. The Headman of
  Nongtrai was also present. He gave reasons as to why the
G village Durbar had agreed to the proposed project. The main
  reason being that the limestone was abundantly available in the
  area but the same remained unutilized by local villagers
  themselves due to lack of infrastructure. That, for economic
  development of the local population, the village Durbar had
H decided to lease the area required for the project to Mis.
            LAFARGE UMIAM MINING PRIVATELIMITED              1019
   T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

  Lafarge . .In the meeting, the economic benefits of the local A
· people from the project prpponent were also discussed. The
  environmental implications were also discussed. The mitigating .
  measures to be adopted by the project proponent were also
  discussed to maintain the ecology and environmental balance
  of the area. The objections of certain persons were also noted B
  and discussed. The Durbar came to the conclusion that there
  was no destruction of any caves. The complainant was not even
  present during the hearing. Thus, a public hearing did take
  place on 3.6.1998. One more aspect at this stage needs to be
  mentioned. Public participation provides a valuable input in the C
  process of identification of forest. Today, amongst the tribals
  of the North East, there is a growing awareness of the close
  relationship between poverty and environmental pollution.
  According to Environmental Law and Policy in India by Shyam.
  Divan and Armin Rosencranz, ''many native .and indigenous
                                                                     0
  people are fully aware of what constitutes preservation and
  conservation of biodiversity. Many native and indigenous
  people have many a times opposed government policies that
  permit exploitation on traditional lands because such
  exploitation threatens to undermine the economic and spiritual
  fabric of their culture, and often results in forced migration and E
  resettlement, the struggle to protect the environment is often a
  part of the struggle to protect the culture of the native and
  indigenous people" (see page 591 ). In our view, the natives and
  indigenous people are fully aware and they have knowledge as
  to what constitutes conservation of forests and development. F
  They equally know the concept of forest degradation. They are
  equally aware of systematic scientific exploitation of limestone
  mining without causing of "environment degradation". However,
  they do not have the requisite wherewithal to exploit limestone ·
  mining in a scientific manner. These natives and indigenous G
  people know how to keep the balance between economic and
  environmen~ sustainability. In the present case, the above is
  brought out by the Minutes of the meeting held on 3.6.1998. In
  fact the written submissions filed by the Nongtrai Village Durbar
  (respondent No. 5) in I.A. No. 1868 of 2007 preferred by M/s. H
    1020     SUPREME COURT REPORTS                   [2011] 7 S.C.R.

A   Lafarge have specifically averred that the total area of the land
    that falls within the jurisdiction of Nongtrai Village is about 2200
    hectares; that, the said lands fall in two categories, namely,
    individual ownership lands, and community lands. The
    management and control of community lands is completely
8   within the jurisdiction of the community. Such community lands
    in highlands of Khasi Hills are termed as Ri Raid whereas
    community lands in low-lying areas are termed as Ri Seng.
    Nongtrai village has about 1300 hectares of community land
    out of which 900 hectares are limestone bearing land. The
C   manner and method of allocation, use and occupation of the
    community lands are decided by the Village Durbar. The
    Village Durbar has granted lease of 100 hectares of community
    land out of 900 hectares which as stated above is limestone
    bearing land. It is important to note that apart from the minutes
    of the meeting held on 3.6.1998 which was attended by the
0   Headman of the Nongtrai Village, a detail written submission
    has been filed on 13.5.2011 by the Nongtrai Village Durbar fully
    supporting the impugned project. Thus, this is a unique case
    from North East. We are fully satisfied that the natives and the
    indigenous people of Nongtrai Village are fully conscious of
E   their rights and obligations towards clean environment and
    economic development. There is ample material on record
    which bears testimony to the fact of their awareness of
    ecological concerns which has been taken into account by
    MoEF. In the circumstances, it cannot be said that the
F   impugned project should be discarded and that the decision
    of MoEF granting ex post facto clearances stands vitiated for
    non-application of mind as alleged by SAC. At this stage one
    more argument advanced on behalf of SAC needs to be
    addressed. According to SAC, in this case a decisive factor
G   which clearly shows that there is "forest" on the core area is
    the statutory definition of forest contained in the United Khasi
    - Jaintia Hills Autonomous District (Management and Control
    of Forests) Act, 1958. Section 2{f) defines the expression
    "foresr and the tree count emerging from the High Powered
H   Committee {HPC) Report which establishes that the area
           LAFARGE UMIAM MINING PRIVATE LIMITED             1021
   TN. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

  answers the statutory definition. According to SAC, in terms of A
  the said definition of forest, if there exists more than 25 trees
  per acre then it is a forest. This argument has no merit.
  According to Shri Krishnan Venugopal, learned senior counsel
  appearing on behalf of the Village Durbar of Nongtrai Village
  (respondent No. 5), SAC has not stated the full facts in this B
  regard. We find merit in this contention. Section 5 of the 1958
  Act inter alia provides that no timber or forest produce shall be
  removed for the purpose of sale, trade and business without
  prior permission. Section 7 of the said Act deals with
· restrictions on felling of trees and further provides that no tree c
  below 1.37 metre in girth at the breast level shall be felled. Thus,
  it is the trees of a particular girth and breast height and not every
  tree should be counted while computing whether a particular
  area is a forest area or not In fact in the year 2007, a survey
  of the unbroken area was conducted by the Forest Department 0
  of the State of Megha'laya wherein an inventory of the existing . I
  trees was prepared based on their nature and girth.The said
  record confirms that the unbroken area has less than 25 trees
  per acre having girth of more than ·120 ems per acre. It is in
  view of the existence of the 1958 Act, which is. a local
  legislation, that the native people as also the State officials like E
  the DFO understood the area in the light of the said Act. It is
   important to note- once again that this understanding of the
   natives and tribals about the Local Act is an important input in
   the decision making process of granting environmental
   clearance. It is deeply engrained in the local customary law and
   usage .. It is so understood by the Expert Committee headed
   by the then Principal Chief Conservator of Forests on the basis
   of which the State granted the mining lease saying that there
   was no forest. This certificate was granted by the State in terms
   of the order of this Court dated 12.12.1996.This understanding G
   also existed in the mind of KHADC when it gave certi_ficates
   on 28.4.1997, 10.7.1997 and 27.8.1997. In fact this has been
   the understanding of the Council as is apparent even from its
   letter dated 18.1.2011 (see page 126 of the affidavit dated
   9.3.2011 filed by the State of Meghalaya). As stated above, this H
    1022     SUPREME COURT REPORTS                  [2011) 7 S.C.R.


A view prevailed with the MoEF between 1997 and 2007. The
  word "environment" has different facets [see para 127 of the
  judgment of this Court in Narmada Bachao Andolan (supra)].
  On the above facts, it is not possible for us to hold that the
  decision to grant ex post facto clearances stood vitiated on
B account of non-application of mind or on account of
  suppression of material facts by Mis. Lafarge as alleged by
  SAC.

         26. Similarly, it is not possible for us to hold on the above
    facts that ex post facto clearances have been granted by MoEF
C   in ignorance of the existence of forests due to mis-declaration.
    Two points are required to be highlighted at the outset. Firstly,
    the ex post facto clearance is based on the revised EIA. In the
    circumstances, EIA Notification of 2006 would not apply.
    Secondly, IA preferred by SAC being I.A. No. 2225-2227/08
D   was preferred only in March, 2008. Thus, during the relevant
    period of almost a decade, SAC did not object to the said
    project. In fact an IA is now pending in this Court being IA No.·
    3063 of 2011 preferred by CEC which indicates that there are
    28 active mines out of which 8 are located along the Shella-
E   Cherrapunjee Road which are operating without obtaining
    approval and in violation of the 1980 Act. Further, the said I.A.
    alleges that 6 registered quarry owners are under the Shella
    Wahadarship, East Khasi Hills and that there are 12 individuals
    involved in mining limestone in the Shella Area during 2008-
F   09. All these aspects require in-depth examination. The locus
    of SAC is not being doubted. However, the I.A. No. 3063 of
    2011 preferred by CEC which has acted only after receiving
    inputs from the respondent No. 5 prima facie throws doubt on
    the credibility of objections raised by SAC. However, we do not
G   wish to express any conclusive finding on this aspect at this
    stage. On the ex post facto clearance, suffice it to state that
    after Shri Khazan Singh, Chief Conservator of Forests (C)
    submitted his report on 1.6.2006, MoEF directed the project
    proponent to apply for necessary clearances on the basis that
H   there existed a forest in terms oMhe order of this Court dated
          LAFARGE UMIAM MINING PRIVATE LIMITED             1023
 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.)

12.12.1996 and the ex post facto clearance has now been A
granted on that basis permitting diversion of forest by granting
Stage-I forest clearance subject to compliance of certain
conditions imposed by MoEF and by this Court. On the question
of non-application of mind by the MoEF, we find that at various
stages despite compliances by the project proponent and 8
despite issuance of certificates by various authorities, MoEF
sought further clarifications/ information by raising necessary
requisitions. To give a few instances in terms of the 1994 E!A
Notification, the then project proponent made an application to
MoEF for grant of environmental clearance. With that C
application, the then project proponent submitted the NEHU
Report of 1997. However, in the mean time there was an
amendment to the EIA Notification of 1994. That amendment
took place on 10.4.1997 by which two stage clearances were
required to be obtained, namely, site clearance and project
clearance. Therefore, immediately MoEF returned the. D
application. to the project proponentasking; it to submit
applications for site clearance as well as for project clearance; ·
Similarly, although the then project proponent had made site
clearance application which fulfilled the 1994 Notification (as
amended), the MoEF gave site clearance on 18.6.1999 with E
additional conditions. Similarly, despite the project proponent
making application for environmental clearance on 17.4.2000
enclosing Rapid EIA prepared by ERM India Pvt. Ltd. referring
to absence of forest, the MoEF asked project proponent to
obtain certificate of DFO in terms of the definition of the word F
"forest" as laid down in the order of this Court dated
12.12.1996. Similarly, despite the certificate given by DFO on
13.6.2000 stating that the proposed mining site is not a forest
area, the MoEF sought further details in terms of the
connotation of the word "forest" as laid down in the order of this G
Court dated 12.12.1996. Similarly, from time to time the Expert
Committee of MoEF asked for details with regard to flora and
fauna, list of species in that area, types of forests existing in
that area, etc. Similarly, after receipt of letter from Shri Khazan
Singh, the then Chief Conservator of Forests (C) on 1.6.2006, H
    1024     SUPREME COURT REPORTS                   [2011] 7 S.C.R.


A the MoEF called upon the project proponent to submit an
  application for forest clearance on the basis that the site was
  located in the forest.· A number of queries have been raised
  from time to time by the MoEF as indicated from the facts
  enumerated hereinabove. Even a report from the High Powered
8 Committee (HPC) was called for by MoEF which was submitted
  on 5.4.2010. There were four terms of references given to the
  HPC. According to the report, all conditions imposed with
  regard to environmental clearance had been substantially
  complied with by Mis. Lafarge. The report also refers to the
C steps taken by Mis. Lafarge with regard to reforestation. The
  most important aspect of the HPC Report is regarding the
  topography of the area. It states that.though the area can be
  treated as forest, still it is a hilly uneven undulating area largely
  covered by "Karstified" limestone. The Report further states that
  the area can be reforested as a part of the reclamation plan. It
D further states that the indigenous and native people are
  satisfied with the credentials of Mis. Lafarge as the company
  is providing health care facilities, drinking water facilities,
  employment for. local youth, construction of village roads,
  employment for school teachers,· scholarship programme for
E children, etc. It also indicates that the issue of mining was
  thoroughly discussed with the Village Durbar by the members
  of the HPC who visited the site and that the community was in
  agreement to allow Mis. Lafarge to continue mining. The report
  further notes that most of the members of the SAC were not
F the residents of the locality (Shella Village) and were living in
  Shillong while occasionally visiting Shella. The report further
  states that 200 persons participated in a long interaction with
  the members of HPC. The report further states that in fact the
  villagers became very upset in the apprehension of Mis.
G Lafarge not being allowed to mine on their community land. As
  stated above, even according to the letter dated 11.5.2007, the
  Principal Chief Conservator of Forests states that though the
  site falls in the forest as pointed out by Shri Khazan Singh, the
  Chief Conservator of Forests (C) vide letter dated 1.6.2006,
H still it is not the fault of Mis. Lafarge. Thus, under the above
           LAFARGE UMIAM MINING PRIVATE LIMITED             1025
  T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

circumstances, we are satisfied that the parameters of              A
intergenerational equity are satisfied and no reasonable person
can say that the impugned decision to grant Stage - I forest
clearance and revised environmental clearance stood vitiated
on account of non-application of mind by MoEF. On the contrary,
the facts indicate that the MoEF has been diligent. That, MoEF      B
has taken requisite care and caution to protect the environment
and in the circumstances, we uphold the stage-I forest clearance
and the revised environmental clearance granted by MoEF.

        27. Before concluding, we would like to refer to our order C
  dated 12.4.2010 which recites agreed conditions between the
  parties which conditions are imposed by this Court in addition
  to the conditions laid down by MoEF. These agreed conditions
  incorporated in our order dated 12.4.2010 are in terms of our
 judgment in T.N. Godavarman Thirumulpad v. Union of India .
. [(2006) 1 sec 1] with regard to commercial exploitability D
·which even according to SAC was not considered by MoEF
  at. the time of granting revised environmental clearance on
  19.4.2010 or at the time of granting forest clearance on
· 22.4.2010. We reproduce our order dated 12.4.2010, which
  reads as under:                                                  E

            "Heard both sides. Learned Attorney General for
     India stated that the Ministry of Environment & Forests will
     take a decision under the Forest Conservation Act and
     shall consider granting permission subject to the following    F
     conditions :

            1. The applicant shall deposit a sum of Rs.55
            crores towards five times of the normal NPV (as
            recommended by the CEC) with interest @ 9% per
            annum from 1st April, 2007, till the date of payment.   G
            Such payment shall be made in totality in one
            instalment within 4 weeks from the date of the
            order.

            2, An SPVshall be set up under the Chairmanship         H
    1026   SUPREME COURT REPORTS                [2011] 7 S.C.R.


A           of the Chief Secretary, Meghalaya with the Principal
            Chief Conservator of Forests, Meghalaya, Tribal
            Secretary, Meghalaya, Regional Chief Conservator
            of Forests, MoEF at Shillong and one reputed NGO
            (to be nominated by the MoEF) as Members. The
B           SPV will be set up within 4 weeks.

            3. The User Agency will deposit with the SPV a sum
            of Rs.90/- per tonne of the limestone mined from
            the date on which mining commenced within 4
            weeks of the SPV being constituted.
c
            4. The SPV shall follow the principles and
            procedure presently applied for utilization of
            CAMPA money. The account will be audited by the
            Accountant General, Meghalaya. The money will be
D           kept in interest bearing account with a Nationalized
            Bank. The Accountant General and the SPV shall
            file an Annual Repurt before this Hon'ble Court
            detailing all the work done by it in relation to the
            welfare projects mandated upon it including the
E           development of health, education, economy,
            irrigation and agriculture in the project area of 50
            kms. solely for the local community and welfare of
            Tribals.

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

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

             (b)   It shall explore the use of surface miner
                   technology.
H            (c)   It shall monitor ambient area quality as per
         LAFARGE UMIAM MINING PRIVATE LIMITED             1027
T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.)

                          New National Ambient Air Quality Standards.        A

             (d)          It shall take steps to construct a Sewage
                          Treatment Plant and Effluent Treatment Plant.

             (e)          It shall discontinue any agreement for
                          procuring limestone on the basis of                8
                          disorganized and unscientific and
                          ecologically unsustainable mining in the area.

             (f)           It shall prepare a comprehensive forest
                           rehaqilitation and conservation plan covering     C
                         . the project as well as the surrounding area.

             (g)          It shall prepare a comprehensive Biodiversity
                          Management Plan to mitigate the possible
                          impacts of mining on the surrounding forest ·
                                                                        0
                          and.wildlife.
                     .         :   _:,   ·.. :   .   .          '     .

           ·.· (h)       · it shall maintain a strip of at least 100 meter
                           of forest area on the boundary of mining area
                          as a green belt.
                                                                             E
    6. The MoEF shall take a final decision under the Forest
Conservation Act, 1980 for the revised environmental
clearance for diversion of 116 hectares of forest land, taking
into consideration all the conditions stipulated hereinabove and
it may impose such further conditions as it may deem proper.
                                                                             F
list on 26.04.2010 at 2.00 p.m."
     28. This order indicates the benefit which will accrue to the
natives and residents of the Nongtrai Village. The site covers
100 hectare required for limestone mining. The Village Durbar                G
seeks to exploit it on scientific lines. The minutes of the meeting
of the Village Durbar and the submissions filed by the Durbar
                             of
indicate the exercise the rights by the tribals and the natives
of Nongtrai Village seeking economic development within the
parameters of the 1980 Act and the 1986 Act.                                 H
    1028    SUPREME COURT REPORTS                [2011] 7 S.C.R.


A      29. At the request of the learned counsel for SAC, we wish
  to state that none of the observations made hereinabove in the
  context of the nature of the land (the extent of the lands owned
  by the community and by private persons) shall be taken into
  account by the competent court in which title dispute is pending
B today.

        (d) Summary

         30. Time has come for us to apply the constitutional
    "doctrine of proportionality" to the matters concerning
C   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
D   intergenerational equity, but balancing of these equities
    may entail policy choices. In the circumstances, barring
    exceptions, decisions relating to utilization of natural
    resources have to be tested on the anvil of the well-
    recognized principlei:; of judicial review. Have all the
E   relevant factors been taken into account? Have any
    extraneous factors influenced the decision? Is the
    decision strictly in accordance with the legislative policy
    underlying the law (if any) that governs the field? Is the
    decision consistent with the principles of sustainable
F   development in the sense that has the decision-maker
    taken into account the said principle and, on the basis
    of relevant considerations, arrived at a balanced
    decision? Thus, the court should review the decision-
    making process to ensure that the decision of MoEF is
G   fair and fully informed, based on the correct principles,
    and free from any bias or restraint. Once this is ensured,
    then the doctrine of "margin of appreciation" in favour of
    the decision-maker would come into play. Our above view
    is further strengthened by the decision of the Court of
    Appeal in the case of R v. Chester City Council reported
H
          LAFARGE UMIAM MINING PRIVATE LIMITED             1029
 T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

in (2011) 1 All ER 476 (paras 14 to 16).                          A
   · . 31. Accordingly, this matter stands disposed of
keeping in mind various facets of the word
"environment", the inputs provided by the Village Durbar
of Nongtrai (including their understanding of the word 8
"forest" and the balance between environment and
economic sustainability), their participation in the
decision-making process, the topography and
connectivity of the site to Shillong, the letter dated
11.5.2007 of the Principal Chief Conservator of Forests C
and the report of Shri B.N, Jha dated 5.4.2010 (HPC)
(each one of which refers to economic welfare of the
tribals of Village Nongtrai), the polluter pays principle and
the intergenerational equity (including the history of
limestone mining in the area from 1858 and the prevalent
social and customary rights of the natives and tribals). D
The word "development" is a relative term. One cannot
assume that the tribals are not aware of principles of
conservation of forest. In the present case, we are
satisfied that limestone mining has been going on for
centuries in the area and that it is an activity which is E
intertwined with the culture and the unique land holding
and tenure system of the Nongtrai Village. On the facts
of this case, we are satisfied with due diligence exercise
undertaken by MoEF in the matter of forest diversion.
Thus, our order herein is confined to the facts of this F
case.

Conclusion

     32. Accordingly, we see no reason to interfere with the
decision of MoEF granting site clearance dated· 18.6.1999, ElA G
clearance dated 9.8.2001 read with revised environmental
clearance dated 19.4.2010 and Stage-I forest clearance dated
22.4.2010. Accordingly, I.A. No. 1868 of 2007 preferred by M/
s. Lafarge stands allowed with no order as to costs.
Consequently, I.A. No. 2937 of 2010 preferred by SAC is H
    1030         SUPREME COURT REPORTS                . [2011] 7 S.C.R


A dismissed. The interim order passed by this Court on 5.2.2010
  shall also stand vacated. All other I.As. shall stand disposed
  of.

                                    Part II

B Guidelines to be followed in future cases

           (i)       As stated in our order hereinabove, the words
                     "environment" and "sustainable development" have
                     various facets. At times in respect of a few of these
c                    facets data is not available. Care for environment
                     is an ongoing process. Time has come for this
                     Court to declare and we hereby declare that the
                     National Forest Policy, 1988 which lays down far-
                     reaching principles must necessarily govern the
D                 · grant of permissions under Section 2 of the Forest
                     (Conservation) Act, 1980as the same provides the
                     road map to ecological protection and improvement
                     under the Environment (Protection) Act, 1986. The
                     principles/ guidelines mentioned in the National
                     Forest Policy, 1988 should be read as part of the
E
                     provisions of the Environment (Protection) Act,
                     1986 read together with the Forest (Conservation)
                     Act, 1980. This direction is required to be given
                     because there is no machinery even today
                     established for implementation of the said National
F                    Forest Policy, 1988 read with the Forest
                     (Conservation) Act, 1980. Section 3 of the
                     Environment (Protection) Act, 1986 confers a
                     power coupled with duty and, thus, it is incumbent
                   . on the Central Government, as hereinafter
G                    indicated, to appoint an Appropriate Authority,
                     preferably in the form of Regulator, at the State and
                     at the Centre level for ensuring implementation of
                     the National Forest Policy, 1988. The difference
                     between a regulator and a court must be kept in
H                    mind. The court I tribunal is basically an authority
         LAFARGE UMIAMMINING PRIVATE LIMITED.            1031
T.N, GODAVARMAN.THIRUMULPAD v. U.0.1 {S.H KAPADIA, CJI.]
                              .           ·.    .        .   .   -.
              .
                   -:
                        .             .             .
                                                    .

            which reacts to a given situation brought to its notice A·
            whereas a regulator is a pro~active body with the
            power conferred Upon it to frame statutory Rules
            and Regulations. The Regulatory mechanism
            warrants open discussion, public participation,
            circulation of the Draft Paper inviting suggestions. B
            The basic objectives of the National Forest Policy,
            1988 include positive and pro-active steps to be
            taken. These include maintenance of environmental
            stability through preservation, restoration of
            ecological balance that has been adversely c
            disturbed by serious depletion of forest,
            conservation of natural heritage of the country by
            preserving the remaining natural forests with the
            vast variety offlora and fauna, checking soil erosion
         •. and denudation in the catchment areas, checking
            the ext~nsion of sand-dunes; increasing the forest/
            tree cover in the country and encouraging efficient
       ·. utilization oCforest produce and maximizing
           ·substitution of wood. Thus, we are of the view
            that under Section 3(3) of the Environment
            (Protection) Act, 1986, the Central Government E
            should appoint a National Regulator for
            appraising projects, enforcing enviro-nmental
         . conditions for approvals and to impose
            penalties on polluters. There is one more reason
            for having a regulatory mechanism in place. F
             Identification of an area as .forest area is solely
            based on the Declaration to be filed by the User
            Agency (project proponent). The project proponent
            under the existing dispensation is required to
            undertake EIA by an expert body/ institution. In many · G
            cases, the court is not made aware of the terms of
            reference. In several cases, the court is not made
            aware of the study area undertaken by the expert
            body. Consequently, the MoEF/ State Government
            acts on the report (Rapid EIA) undertaken by the H
    1032          SUPREME COURT REPORTS                [2011] 7 S.C.R.


A                   Institutions who though accredited submit answers
                    according to the Terms of Reference propounded
                    by the project proponent. We do not wish to cast
                    any doubt on the credibility of these Institutions.
                    However, at times the court is faced with conflicting
B                   reports. Similarly, the government is also faced with
                    a fait accompli kind situation which in the ultimate
                    analysis leads to grant of ex facto clearance. To
                    obviate these difficulties, we are of the view that a
                    regulatory mechanism should be put in place and
c                   till the time such mechanism is put in place, the
                    MoEF should prepare a Panel of Accredited
                    Institutions from which alone the project proponent
                    should obtain the Rapid EIA and that too on the
                    Terms of Reference to be formulated by the MoEF.
D          (ii)     In all future cases, the User Agency (project
                    proponents) shall comply with the Office
                    Memorandum dated 26.4.2011 issued by the
                    MoEF which requires that all mining projects
                    involving forests and for such non-mining projects
E                   which involve more than 40 hectares of forests, the
                    project proponent shall submit the documents which
                    have been enumerated in the said Memorandum.

           (iii)    If the project proponent makes a claim regarding
F                   status of the land being non-forest and if there is
                    any doubt the site shall be inspected by the State
                    Forest Department along with the Regional Office
                    of MoEF to ascertain the status of forests, based
                    on which the certificate in this regard be issued. In
                    all such cases, it would be desirable for the
G
                    representative of State Forest Department to assist
                    the Expert Appraisal Committee.

           (iv)     At present, there are six regional offices in the
                    country. This may be expanded to at least ten. At
H                   each regional office there may be a Standing Site
         LAFARGE UMIAM MINING PRIVATE LIMITED             1033
T.N. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.]

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

    (v)    Increase in the number. of Regional Offices of the
           Ministry from six presently located at Shillong,
           Bhubaneswar, Lucknow, Chandigarh, Bhopal and
           Bangalore to at least ten by opening at least four       C
           new Regional Offices at the locations to be decided
           in consultation with the State/UT Governments to
           facilitate more frequent inspections and in-depth
           scrutiny and appraisal of the proposals.
                                                                    D
    (vi)   Constitution of Regional Empowered Committee,
     '     under the Chairmanship of the concerned Chief
           Conservator of Forests (Central) and having
           Conservator of Forests (Central) and three non-
           official members to be selected from the eminent         E
           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            F
           proposals relating to mining and encroachments up
           to 40 hectares.

    (vii) Creation and regular updating of a GIS based
          decision support database, tentatively containing
          inter-a/ia the district-wise details of the location and · G
          boundary of (i) each plot of land that may be defined
          as forest for the purpose of the Forest
          (Conservation) Act, 1980; (ii) the core, buffer and
          eco-sensitive zone of the protected areas
          constituted as per the provisions of the Wildlife H
    1034         SUPREME COURT REPORTS                  [2011] 7 S.C.R.


A                 (Protection) Act, 1972; (iii) the important migratory
                  corridors for wildlife; and (iv) the forest land diverted
                  for non-forest purpose in the past in the district. The
                  Survey of India toposheets in digital format, the
                  forest cover maps prepared by the Forest Survey
B                 of India in preparation of the successive State of
                  Forest Reports and the conditions stipulated in the
                  approvals accorded under the Forest
                  (Conservations) Act, 1980 for each case of
                  diversion of forest land in the district will also be
c                 part of the proposed decision support database.

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

           (ix)   The Office Memorandum dated 26.4.2011 is in
D                 continuation of an earlier Office Memorandum
                  dated 31.03.2011. This earlier O.M. clearly
                  delineates the order of priority required to be
                  followed while seeking Environmental Clearance
                  under the Environment Impact Assessment
E                 Notification 2006. It provides that in cases where
                  environmental clearance is required for a project on
                  forest land, the forest clearance shall be obtained
                  before the grant of the environment clearance.

           (x)    In addition to the above, an Office Memorandum
F                 dated 26.04.2011 on Corporate Environmental
                  Responsibility has also been issued by the MoEF.
                  This O.M. lays down the need for PSUs and other
                  Corporate entities to evolve a Corporate
                  Environment Policy of their own to ensure greater
G                 compliance with the environmental and forestry
                  clearance granted to .them.

           (xi)    All minutes of proceedings before the Forest
                   Advisory Committee in respect of the Forest
H                  (Conservation) Act, 1980 as well as the minutes of
        LAFARGE UMIAM MINING PRIVATE LIMITED             1035
TN. GODAVARMAN THIRUMULPAD v. U.0.1 [S.H. KAPADIA, CJI.)

          proceedings of the Expert Appraisal Committee in       A
          respect of the Environment (Protection) Act, 1986
          are regularly uploaded on the Ministry's website
          even before the final approval/decision of the
          Ministry for Environment and Forests is obtained.
          This has been done to ensure public accountability.    B
          This also includes environmental clearances given
          under the EIA Notification of 2006 issued under the
          Environment (Protection) Act, 1986. Henceforth, in
          addition to the above, all forest clearances given
          under the Forest (Conservation) Act, 1980 may now      c
          be uploaded on the Ministry's website.
    (xii) Completion of the exercise undertaken by each
          State/UT Govt. in compliance of this Court's order
          dated 12.12.1996 wherein inter-alia each State/UT
          Government was directed to constitute an Expert        D
          Committee to identify the areas which are "forests"
          irrespective of whether they are so notified,
          recognized or classified under any law, and
          irrespective of the land of such "forest" and the
          areas which were earlier "forests" but stand           E
          degraded, denuded and cleared, culminating in
          preparation of Geo-referenced district forest-maps
          containing the details of the location and boundary
          of each plot of land that may be defined as "forest"
          for the purpose of the Forest (Conservation) Act,      F
          1980.

    (xiii) Incorporating appropriate safeguards in the
           Environment Clearance process to eliminate
           chance of the grant of Environment Clearance to
           projects involving d.iversion of forest land by       G
           considering such forest land as non-forest, a flow
           chart depicting, the tentative nature and manner of
           incorporating the proposed safeguards, to be
           finalized after consultation with the State/ UT
           Governments.                                          H
    1036      SUPREME COURT REPORTS                  [2011] 7 S.C.R.


A          (xiv) The public consultation or public hearing as it is
                 commonly known, is a mandatory requirement of the
                 environment clearance process and provides an
                 effective forum for any person aggrieved by any
                 aspect of any project to register and seek redressal
B                of his/her grievances;

           (xv)   The MoEF will prepare a comprehensive policy for
                  inspection, verification and monitoring and the
                  overall procedure relating to the grant of forest
                  clearances and identification of forests in
c                 consultation with the States (given that forests fall
                  under entry 17A of the Concurrent List).

       33. Part II of our order gives guidelines to be followed by
  the Central Government, State Government and the various
D authorities under the Forest (Conservation) Act, 1980 and the
  Environment (Protection) Act, 1986. These guidelines are to be
  implemented in all future cases. These guidelines are required
  to be given so that fait accompli situations do not recur. We
  have issued these guidelines in the light of our experience in
E the last couple of years. These guidelines will operate in all
  future cases of environmental and forest clearances till a
  regulatory mechanism is put in place. On the implementation
  of these Guidelines, MoEF will file its compliance report within
  six months.
F   R.P.                     lnteralocutary applications disposed of.