T.N. GODAVARMAN THIRUMULPADversusUNION OF INDIA & ORS.

                         [2014] 1 S.C.R. 88


A               T.N. GODAVARMAN THIRUMULPAD
                                   v.
                    UNION OF INDIA & ORS.
     I.A. NOs.1868, 2091, 2225-2227, 2380, 2568 AND 2937
                               IN
B           WRIT PETITION (CIVIL) No. 202 OF 1995

                         JANUARY 06, 2014.

        [A.K. PATNAIK, SURINDER SINGH NIJJAR AND
         FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.]
c
        ENVIRONMENT (PROTECT/ON) ACT, 1986:

          s. 3(3) - National Regulator - Order of Supreme Court
    dated 6.7. 2011 directing for appointment of National
0   Regulator -Held: In Lafarge Umiam Mining's case, on an
    interpretation of s. 3 (3), the Court took a view that it confers
    a power coupled with duty to appoint an appropriate authority
    in the form of a Regulator at the State and at the Central level
    for appraising projects, enforcing environmental conditions for
E   approvals and to impose penalties on polluters and
    accordingly directed the Central Government to appoint a
    National Regulator under the said provision, as the Court did
    not find the mechanism of making the EIA appraisals of
    projects by MoEF to be satisfactory- The mechanism under
    EIA Notification dated 14.09.2006, issued by Government with
F   regard to processing, appraisals and approval of the projects
    for environmental clearance is deficient in many respects and
    what is required is a Regulator at the national level having
    its offices in all the States which can carry out an independent,
    objective and transparent appraisal and approval of the
S   projects for environmental clearances and which can also
    monitor the implementation of the conditions laid down in the
     Environmental Clearances - The Regulator so appointed ul
    s 3(3) can exercise only such powers and functions of Central

H                                  88
  T.N. GODAVARMAN THIRUMULPAD v. UNION OF                    89
                   INDIA
Government under the Act as are entrusted to it and obvibusly     A
cannot exercise powers of Central Government u/s 2 of Forest
(Conservation) Act, 1980, but while exercising such powers
under Environment Protection Act, he will ensure that the
National Forest Policy, 1988 is duly implemented as held in
the order dated 06.07.2011 in the case of Lafarge Umiam           B
Mining - Union of India is directed to appoint a Regulator
with offices in as many States as possible under sub-s. (3) of
s. -3 of the Environment (Protection) Act as directed in the
order in the case of Lafarge Umiam Mining and file an affidavit
along with the notification appointing the Regulator in           c
compliance of this- direction - Forest (Conservation) Act,
1980 - National Forest Policy, 1988 - EIA Notification
dated 14.09.2006.

    Lafarge Umiam Mining Private Limited v. Union of India
& Ors. 2011 (7) SCR 954   =(2011) 7 SCC 338 - referred to. D
                     Case Law Reference:
    2011 (7) SCR 954          referred to           para 1
    CIVIL ORIGINAL JURISDICTION I.A. NOs.1868, 2091,              E
2225-2227, 2380, 2568 AND 2937
                                IN
    Writ Petition (Civil) No. 202 OF 1995.

     Harish N. Salve, Uday U. Lalit, Vivek Tankha, R.K.
                                                                  F
Raizada, Mahaveer Singh, A.D.N. Rao, Siddharth Chowdhury,
P.K. Manohar, Group Capt. Karan Singh Bhati, Dr. Prikshayat
Singh, Karmendra Singh, Prashant Kumar, Joseph Pookkatt
(for APJ Chambers), Rajiv Tyagi (for Rajiv Tyagi Associates),
Vivek Gupta, S.S. Shamshery, Bhakti Vardhan Singh, Bharat         G
Sood, Dr. Kailash Chand, Arvind Kumar Shukla, Amit Shukla,
Nihal Ahmad, Alok Shukla, R.C. Kohli, Yash Pal Dhingra,
Himanshu Shekhar, Sanchit Guru, Gunwant Dara, D.K. Thakur,
Sukhbeer Kaur Baiwa, Shreekant N. Terdal, Gopal Prasad,
C.D. Singh, Hemantika Wahi, Preeti Bhardwaj, Parul Kumari,        H
                                                     .,
      90       SUPREME COURT REPORTS                [2014] 1 S.C.R.

A     Gopal Prasad, Anitha Shenoy, ~ishra Saurabh, Vanshja
      Shukla and Abhishek Chowdhury for the appearing parties.

           The following Order of the Court was delivered

                                0 RD ER

           1. In the case of Lafarge Umiam Mining Private Limited
      v. Union of India & Ors. [(2011) 7 SCC 338], this Court, while
      refusing to interfere with the decisions of the Ministry of
      Environment and Forests (MoEF) granting site clearance, EIA
C     clearance read with revised environmental clearance and
      Stage I forest clearance to the mining project of Lafarge
      Umiam Mining Private Limited, laid down some guidelines to
      be followed in future cases in Part-I I of its order dated
      06.07.2011. These guidelines have been stated in Para 122
D     of the said order and sub-para (i.1.) of Para 122, this Court
      called upon the Central Government to appoint a National
      Regulator under Section 3(3) of the Environment (Protection)
      Act, 1986 for appraising projects, enforcing environmental
      conditions for approvals and to impose penalties on polluters.
F.!   Despite the order dated 06.07.2011 of this Court, the Central
      Government did not appoint a National Regulator under
      Section 3(3) of the Environment (Protection) Act, 1986. On
      09.09.2013, this Court therefore requested Mr. Mohan
      Parasaran, learned Solicitor General, to obtain instructions and
F     apprise this Court as to when the direction of this Court will
      be complied with.

           2. When the matter was taken up on 18.11.2013 again,
      Mr. Mohan Parasaran, learned Solicitor General, relying on the
G     affidavit filed on behalf of the MoEF, submitted that in the case
      of Lafarge Umiam Mining Private Limited, this Court was really
      concerned with the National Forest Policy, 1988. He submitted
      that so far as the National Forest Policy, 1988 is concerned,
      the same relates to forests and under Section 2 of the Forest
H     (Conservation) Act, 1980 the duty of a Regulator has been cast
  T.N. GODAVARMAN THIRUMULPAD v. UNION OF                  91
                   INDIA
upon the Central Government. He submitted that the               A
responsibility to appraise proposals seeking prior approval of
the Central Government under Section 2 of the Forest
(Conservation) Act, 1980 lies with the Forest Advisory
Committee constituted by the Central Government under
Section 3 of the Forest (Conservation) Act, 1980. He argued      B
that these statutory duties of the Central Government under
Section 2 of the Forest (Conservation) Act, 1980 cannot be
delegated to any other authority.

     3. Mr. Parasaran next submitted that sub-section (1) of C
Section 3 of the Environment (Protection) Act, 1986 similarly
confers powers on the Central Government to take all such
measures as it deems necessary or expedient for the purpose
of protecting and improving the quality of the environment and
preventing, controlling and abating environmental pollution and
                                                                  0
the Central Government in exercise of its powers under sub-
section (1) and clause (v)(b) of sub-section (2) of Section 3
Environment (Protection) Act, 1986 had issued the EIA
Notification dated 14.09.2006. He explained that the EIA
Notification dated 14.09.2006 provides that the prior E
environmental clearance from the Central Government, or as
the case may be, from the State Level Environment Impact
Assessment Authority, shall be taken for construction of new
projects or activities or the expansion or modernization of
existing projects or activities mentioned in the Schedule to this
                                                                  F
Notification. He submitted that the Central Government through
MoEF is, thus, undertaking appraisals of projects in
accordance with the Notification dated 14.09.2006. He
submitted that compliance of the conditions stipulated in the
environmental clearance granted to the projects are being G
monitored and enforced six Regional Offices of the MoEF are
functioning at Bangalore, Bhopal, Bhubaneswar, Chandigarh,
 Lucknow and Shillong. He submitted that as an appropriate
mechanism for appraising projects as well as monitoring and
enforcing compliance of environmental conditions that govern
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    92             SUPREME COURT REPORTS           [2014) 1 S.C.R.


A   Environmental Clearances is already in place, it is not
    necessary for the Central Government to appoint a National
    Regulator under sub-section (3) of Section 3 of the Environment
    (Protection) Act, 1986. Mr. Parasaran finally submitted that Part
    II of the order dated 06.07.2011 of this Court in the case of
B   Lafarge Umiam Mining Private Limited is titled "Guidelines to
    be followed in future cases" and hence the observations of this
    Co.urt in Part II were in the nature of suggestions of this Court
    and the Central Government is considering these suggestions
    and has not taken a decision to appoint a National Regulator
c   under sub-section (3) of Section 3 of the Environment
    (Protection) Act, 1986.

          4. Mr. Harish N. Salve, learned Amicus Curiae, on the other
    hand, submitted that it will be clear, on a reading of Para 122
    of the order dated 06.07.2011 of this Court in the case of
0
    Lafarge Umiam Mining Private Limited, that this Court held that
    Section 3 of the Envrionment (Proection) Act, 1986 confers a
    power coupled with duty and it is incumbent on the Central
    Government, to appoint a Regulator. He submitted that the order
E   of this Court was therefore in the nature of a mandamus to the
    Central Government to appoint a National Regulator and the
    plea taken on behalf of the Union of India that the order to
    appoint a National Regulator was in the nature of a suggestion
    is misconceived. He argued that the order in the case of
F   Lafarge Umiam Mining Private Limited was passed on
    06.07.2011, and no review petition was filed in response of the
    order dated 06.07 .2011, and after two years of the passing of
    the order, the Union of India cannot refuse to comply with the
    order of this Court. Mr. Salve referred to notifications issued
    by the Central Government under Section 3(3) of the
G   Environment (Protection) Act, 1986 constituting authorities,
    such as the Notification dated 17.09.1998 constituting the
    Arunachal Pradesh Forest Protection Authority.


H


           '   ,
  T.N. GODAVARMAN THIRUMULPAD v. UNION OF                         93
                   INDIA

    5. We have considered the submissions of Mr. Parasaran              A
and Mr. Salve and the main question that we have to decide is
whether the order of this Court in Lafarge Umiam Mining
Private Limited for appointing a National Regulator under
Section 3(3) of the Environment (Protection) Act, 1986 was
merely a suggestion or a mandamus to the Central Government.            B
Sub-paragraphs (i.1 ), (i.2.), (i.3.}, (i.4.) and (i.5.) of paragraph
122 of the order of this Court in the case of Lafarge Umiam
Mining Private Limited are extracted hereinbelow:

     "(i.1.) The time has come for this Court to declare and we         c
     hereby declare that the National Forest Policy, 1988 which
     lays down far-reaching principles must necessarily govern
     the grant of permissions under Section 2 of the Forest
     (Conservation) Act, 1980 as the same provides the road
     map to ecological protection and improvement under the             o
     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
     (Conservation) Act, 1980. This direction is required to be         E
     given because there is no machinery even today
     established for implementation of the said National Forest
     Policy, 1988 read with the Forest (Conservation) Act,
     1980. Section 3 of the Environment (Protection) Act. 1986
     confers a power coupled with duty and. thus. it is incumbent       F
     on the Central Government. as hereinafter indicated. to
     appoint an appropriate authority. preferably in the form of
     regulator, at the State and at the Central level for ensuring
     implementation of the National Forest Policy. 1988.

           (i.2.) The difference between a regulator and a court        G
     must be kept in mind. The court/tribunal is basically an
     authority which reacts to a given situation brought to its
     notice whereas a regulator is a proactive body with the
     power conferred upon it to frame statutory rules and
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    94        SUPREME COURT REPORTS                 [2014] 1 S.C.R.


A        regulations. The regulatory mechanism warrants open
         discussion, public participation and circulation of the draft
         paper inviting suggestions.

                (i.3.) The basic objectives of the National Forest
B        Policy, 1988 include positive and proactive steps to be
         taken. These include maintenance of environmental
         stability through preservation, restoration of ecological
         balance that has been adversely disturbed by serious
         depletion of forests, conservation of natural heritage of the
c        country by preserving the remaining natural forests with the
         vast variety of flora and fauna, checking soil erosion and
         denudation in the catchment areas, checking the extension
         of sand dunes, increasing the forest/tree cover in the
         country and encouraging efficient utilisation of forest
D        produce and maximising substitution of wood.

               (i.4.) Thus, we are of the view that under Section 3(3)
         of the Environment (Protection) Act. 1986. the Central
         Government should appoint a National Regulator for
         appraising projects. enforcing environmental conditions for
E        approvals and to impose penalties on polluters.

               (i. 5.) There is one more reason for having a
         regulatory mechanism in place. Identification of an area as
         forest area is solely based on the declaration to be filed
F        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 cases,
         the court is not made aware of the terms of reference. In
         several cases, the court is not made aware of the study
G        area undertaken by the expert body. Consequently, 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. We do not wish to
H
  T.N. GODAVARMAN THIRUMULPAD v. UNION OF                      95
                   INDIA
    cast any doubt on the credibility of these institutions.         A
    However, at times the court is faced with conflicti'ng
    reports. Similarly, the Government is also faced with a fait
    accompli kind of situation which in the ultimate analysis
    leads to grant of ex post facto clearance. To obviate these
    difficulties. we are of the view that a regulatory mechanism     B
    should be put in place and till the time such mechanism is
    put in place, 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 MoEF."                                       C

     It will be clear from the underlined portions of the order of
this Court in Lafarge Umiam Mining Private Limited extracted
above that this Court on an interpretation of Section 3 (3) of
the Environment (Protection) Act, 1986 has taken a view that         D
it confers a power coupled with duty to appoint an appropriate
authority in the form of a Regulator at the State and at the
Central level for appraising projects, enforcing environmental
conditions for approvals and to impose penalties on polluters
and has accordingly directed the Central Government to               E
appoint a National Regulator under the said provision of the Act.
Mr. Parasaran is, therefore, not right in arguing that in the case
of Lafarge Umiam Mining Private Limited, this Court has
merely suggested that a National Regulator should be
appointed and has not issued any mandamus to appoint a
                                                                     F
National Regulator.

     6. We further find on reading of sub-paragraphs (i.2), (i.3)
and (i.5) of Paragraph 122 of the order in the case of Lafarge
Umiam Mining Private Limited extracted above that this Court
has not found the mechanism of making the EIA appraisals of          G
projects by the MoEF to be satisfactory. As a matter of fact,
we also find that the Department of Management Studies,
Indian Institute of Technology, Delhi, has prepared report on
'Scope, Structure and Processes of National Environment
                                                                     H
    96       SUPREME COURT REPORTS                [2014] 1 S.C.R.


A Assessment and Monitoring Authority (NEAMA)' for the
  Ministry of Environment and Forest, Government of India, and
  the Executive Summary of the Report points out the problems
  with regard to the implementation of EIA 2006 Notification.
  Paragraph 4 from Section I of the Executive Summary under
B the heading 'Major Findings & Recommendations', is
  extracted hereinbelow:

         "4. We analysed the implementation of EIA 2006
         notification and the proposed CZM notification 2010 in
c        terms of policy, structure and process level issues. Almost
         all the problems 'n implementing these notifications relate
         to structure and processes. Key issues are mentioned
         below

         a. The presence of MoEF in both the appraisal and
D        approval processes leads to a perception of conflict of
         interest. The Member Secretary (who, according to the
         2006 notification, was supposed to be the Secretary) is
         involved in the processing, appraisal and approval of the
         EIA applications.
E
         b. Lack of permanence in the Expert Appraisal
         Committees leads to lack of continuity and institutional
         memory leading to poor knowledge management.

F        c. Current EIA and CRZ clearances rely predominantly on
         the data provided by the project proponent and the
         absence of authenticated and reliable data and lack of
         mechanisms to validate the data provided by the project
         proponent might lead to subjectivity, inconsistency and
G        inferior quality of EIA reports.

         d. Though the EIA notification requires several documents
         like ToRs (for every project), minutes of public hearing
         meetings (for each project), EIA report (with clearance,
         conditions) and self-monitoring reports to be put in public
H
   T.N. GODAVARMAN THIRUMULPAD v. UNION OF                     97
                    INDIA

     domain (predominantly on the website), this has not been        A
     done for lack of institutional mechanisms. This leads to a
     perception of lack of transparency in the processes.

     e. Several studies have pointed toward the poor monitoring
     of the clearance conditions. Huge gaps in monitoring and        B
     enforcement of clearance conditions actually defeats the
     very purpose of grant of conditional environmental
     clearance." (See moef.nic.in/downloads/public-information/
     exec-summ~NEMA.pdf)
                                                                     c
       7. Hence, the present mechanism under the EIA
· Notification dated 14.09.2006, issued by the Government with
  regard to processing, appraisals and approval of the projects
  for environmental clearance is deficient in many respects and
  what is required is a Regulator at the national level having its
                                                                     0
  offices in all the States which can carry out an independent,
  objective and transparent appraisal and approval of the projects
  for environmental clearances and which can also monitor the
  implementation of the conditions laid down in the
  Environmental Clearances. The Regulator so appointed under         E
  Section 3(3) of the Environment (Protection) Act, 1986 can
  exercise only such powers and functions of the Central
  Government under the Environment (Protection) Act as are
  entrusted to it and obviously cannot exercise the powers of the
  Central Government under Section 2 of the Forest
                                                                     F
  (Conservation) Act, 1980, but while exercising such powers
  under the Environment Protection Act will ensure that the
  National Forest Policy, 1988 is duly implemented as held in the
  order dated 06.07.2011 of this Court in the case of Lafarge
   Umiam Mining Private Limited. Hence, we also do not find any      G
  force in the submission of Mr. Parasaran that as under Section
  2 of the Forest (Conservation) Act, 1980 the Central
  Government alone is the Regulator, no one else can be
   appointed as a Regulator as directed in the case of Lafarge
   Umiam Mining Private Limited.
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    98         SUPREME COURT REPORTS                (2014] 1 S.C.R.


A      8. We, therefore, direct the Union of India to appoint a
  Regulator with offices in as many States as possible under sub-
  section (3) of Section 3 of the Environment (Protection) Act,
  1986 as directed in the order in the case of Lafarge Umiam
  Mining Private Limited and file an affidavit along with the
B notification appointing the Regulator in compliance of this
  direction by 31st March, 2014.

           9. The I.As. will stand disposed of accordingly.

    R.P.                                           I.As disposed of.