MARIA DE LOURDES FILOMENA FIGUEIREDODE ALBUQUERQUE Vs. MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE
LAWS(BOM)-2017-3-107
HIGH COURT OF BOMBAY (AT: PANAJI)
Decided on March 03,2017

Maria De Lourdes Filomena Figueiredode Albuquerque Appellant
VERSUS
Ministry Of Environment, Forest And Climate Change Respondents

JUDGEMENT

BHADANG C.V.,J. - (1.) Rule made returnable forthwith. The learned Central Government Standing Counsel for the respondent, waives service. Heard finally by consent of parties.
(2.) This is the second round of litigation between the parties before this Court. The challenge in this petition is to the order dated 22-9-2016, whereby the respondent has refused to revoke the abeyance of the Environmental Clearance (EC) in respect of the Title Concession (TC) No. 65/51, "Pola Dongor Iron and Managanese Ore" of the petitioner, on the ground that a part of the mining area, is a forest land, in respect of which, forest clearance has not been obtained.
(3.) The brief facts necessary for the disposal of the petition may be stated thus: (i) That on 18-7-2007, the respondent had granted EC to the petitioner's Mining Lease (TC No. 65/51) Under the Environment Impact Assessment (EIA) Notification 2006. (ii) The Central Government had formed a Commission better known as Shah Commission to enquire into illegal mining carried in the State of Goa. The Shah Commission submitted it's report in the Ministry of Mines on 15-3-2012 and 25-4-2012. Consequently, the Ministry of Mines submitted it's Action Taken Report (ATR) in the Parliament on 7-9-2012. (iii) The Government of Goa issued orders, suspending the mining operation of all iron ore and manganese ore mining leases in the State with effect from 11-9-2012. (iv) The Hon'ble Apex Court as per order dated 5-10-2012 in Writ Petition (Civil) No. 435/2012, directed suspension of transportation of iron and manganese ore from those mining leases. (v) The Ministry of Environment, Forest and Climate Change (MoEF) for short) by an order dated 14-9-2012, under section 5 of the Environment Protection Act, 1986 (the EP Act, for short) directed all the Environmental Clearances, in each of the cases referred by State Government (including TC No. 65/51), to be kept in abeyance and issued show cause notices to the project proponents (PP) to show cause. (vi) The MoEF constituted an Expert Appraisal Committee (EAC) on 21-3-2013, with a view to examine the reply submitted by 139 PPs in pursuance of the directions of the MoEF dated 14-9-2012 and to assess the status of compliance to the EC conditions. The EAC submitted it's report on 14-10-2013 categorizing the various violations. (vii) Under the Mines and Minerals (Development and Regulation) (Amendment) Ordinance, 2015 dated 12-1-2015, the mining leases in respect of the mines stood extended till 31-3-2020. Consequently, the State Government requested the MoEF to revoke the abeyance on environment clearance of the various mining leases in the State of Goa. (viii) The MoEF considered the matter of revoking of the abeyance of EC in respect of various leases, including the subject lease held by the petitioner bearing TC No. 65/51. There were 22 leases having forest land in the lease area or dispute about involvement of forest land, and forest clearance was not available. Incidentally, TC No. 65/51 is one of those 22 mining leases, having forest land in the lease area. (ix) The MoEF by an order dated 20-3-2015, refused to revoke the abeyance of EC in respect of these leases, including the subject lease held by the petitioner, on the ground that the part of the mining area is a forest land, in respect of which forest clearance is not available. The MoEF placed reliance on the decision of the Hon'ble Supreme Court in the case of (Lafarge Umiam Mining Private Limited v. Union of India (UOI) and others)1,2011 (7) S.C.C. 338. It was found the EC can be granted only after obtaining Stage-1 Forest Clearance. The MoEF therefore directed that these cases for revoking of abeyance of EC, would be considered after the forest clearance is obtained. (x) The petitioner challenged the aforesaid order before this Court in Writ Petition No. 573/2016 interaliaon the ground that the decision in the case of Lafarge Umiam Mining (supra), would not apply, in as much as, the guidelines, as set out in para 2 of the said judgment are to be followed in future cases and the EC granted to the subject mining lease was of the year 2007, which was granted as per the EIA Notification of 2006 and was prior to the decision in the case of Lafarge Umiam Mining (supra). Secondly , it was contended that the forest area comprising in the lease, has already been cordoned off, which is apparent from the letter dated 14-3-2011, from the Deputy Conservator of Forest, confirming that no mining operation was being carried out in the forest area. (xi) In the circumstances, this Court found that it would be appropriate if, the Competent Authority of MoEF decides the matter, Writ Petition No. 573/2016 was partly allowed on 26-7-2016, directing the MoEF to decide the matter afresh after hearing the petitioner. (xii) The MoEF in compliance of the said direction of this Court heard the petitioner. The MoEF has passed the impugned order on 22-9-2016, once again refusing to revoke the abeyance, which order is subject-matter of challenge in this petition. ;


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