* Author
[2024] 3 S.C.R. 1249 : 2024 INSC 241
Noble M. Paikada
v.
Union of India
(Civil Appeal Nos. 1628-1629 of 2021)
21 March 2024
[Abhay S. Oka* and Sanjay Karol, JJ.]
Issue for Consideration
Item 6 in the impugned notification which granted exemption from
requirement of prior Environmental Clearance (EC) for extraction
or sourcing or borrowing of ordinary earth for the linear projects
such as roads, pipelines, etc., if provided a blanket exemption
which was arbitrary and violative of Article 14 of the Constitution
of India.
Headnotes
Environment (Protection) Act, 1986 – Environment (Protection)
Rules, 1986 – r.5(4) – Constitution of India – Articles 14, 21
– First EC notification provided that certain projects falling
under categories set out in the Schedule thereto would require
prior EC from the concerned Regulatory Authority – Second
EC notification was issued adding Appendix-IX to the first EC
notification, providing for exemption to specific categories of
projects from the requirement of obtaining EC – Impugned
notification substituted Appendix-IX which provided that prior
EC will not be required inter alia for item 6 i.e. for extraction
or sourcing or borrowing of ordinary earth for the linear
projects such as roads, pipelines, etc. – Challenge to – NGT
held that the exemption u/item 6 should strike a balance and
directed Ministry of Environment, Forest and Climate Change
to revisit the impugned notification – Review theragainst also
dismissed:
Held: Before the issue of the second EC notification by which
Appendix-IX was incorporated, the procedure of inviting objections
to the draft notification was followed, and the objections were
considered – There was no reason to dispense with this important
requirement before publishing the impugned notification – Article
21 guarantees right to live in a pollution-free environment –
Citizens have a fundamental duty to protect and improve the
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environment – Therefore, the participation of the citizens is very
important and is taken care of by allowing them to raise objections
to the proposed notification – Citizens being major stakeholders
in environmental matters, their participation cannot be prevented
by casually exercising the power under sub-rule (4) of r.5 – No
document recording the satisfaction of the competent authority
about the existence of public interest and the nature of the public
interest was produced by the Ministry – The drastic decision to
invoke sub-rule (4) of r.5 was made without any application of
the mind – Hence, the decision-making process was vitiated –
Impugned notification was issued two days after the nationwide
lockdown was imposed due to the COVID-19 pandemic – At that
time, the work of linear projects, such as roads, pipelines, etc.,
had come to a grinding halt – So, there was no tearing hurry to
modify the EC notifications – Inclusion of item 6 of the substituted
Appendix-IX illegal – Further, there was no specification about
the quantum of ordinary earth which can be extracted on the
basis of the exemption – “Linear projects” were not defined –
Without the definition, it is difficult to imagine which projects will
be termed linear projects – The term “linear projects” is very
vague – The process to be adopted for excavation was also
not set out – Thus, item 6 is a case of completely unguided
and blanket exemption, which is per se, arbitrary and violative
of Article 14 – There is no provision for setting up an authority
which will decide whether a particular linear project is covered
by item 6 – No steps taken to revisit item 6 of the impugned
notification, as directed – Notwithstanding the specific directions
issued in the impugned judgment, no safeguards were provided,
such as laying down processes, the mode and the manner of
excavation and quantum – Item 6 of the substituted AppendixIX forming part of the impugned notification and item 6 of the
amended impugned notification (issued during the pendency of
the present appeals), struck down and quashed. [Paras 22-25,
28, 31, 32]
Environment (Protection) Act, 1986 – s.3 – Power of Central
Government to take measures to protect and improve
environment – Environment (Protection) Rules, 1986 – r.5 –
Prohibition and Restriction on the location of industries and
the carrying on processes and operations in different areas:
Held: s.3 of the EP Act must be read with r.5 of the EP Rules –
r.5 has been enacted to give effect to clause (v) of sub-section
[2024] 3 S.C.R. 1251
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(2) of s.3 of the EP Act, which empowers the Central Government
to put restrictions on the areas in which industries, operations or
processes shall not be carried out or shall be carried out subject
to certain safeguards – Further, Sub-rule (4) of r.5 empowers
the Central Government to dispense with the requirement of
publication of notice under sub-rule (3) of r.5 when it appears to
the Central Government that it is in the public interest to do so
– Thus, sub-rule (4) of r.5 is an exception to sub-rule (3) – The
exception can be invoked only on the grounds of public interest.
[Paras 15, 19]
Case Law Cited
Deepak Kumar & Ors. v. State of Haryana & Ors. [2012]
4 SCR 819 : (2012) 4 SCC 629; Hanuman Laxman
Aroskar v. Union of India [2019] 5 SCR 916 : (2019)
15 SCC 401 – referred to.
List of Acts
Environment (Protection) Act, 1986; Constitution of India; Mines
and Minerals (Development and Regulation) Act, 1957.
List of Keywords
Environmental Clearance; Prior Environmental Clearance;
Environmental Clearance notification; Blanket exemption;
Regulatory Authority; Linear projects.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1628-1629 of
2021
From the Judgment and Order dated 28.10.2020 of the National Green
Tribunal, New Delhi in OA No. 190 of 2020
Appearances for Parties
Ms. Anitha Shenoy, Sr. Adv., Ms. Nishtha Kumar, Vanshdeep Dalmia,
Ms. Ayushma Awasthi, Ms. Namrata Sarah Caleb, Ms. Pariksha,
Advs. for the Appellant.
Ms. Aishwarya Bhati, A.S.G., Gurmeet Singh Makker, Ms. Swarupama
Chaturvedi, Ms. Ruchi Kohli, Ms. Shradha Deshmukh, Madhav Sinhal,
Advs. for the Respondent.
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Judgment / Order of the Supreme Court
Judgment
Abhay S. Oka, J.
FACTUAL ASPECTS
1. These appeals take exception to the judgment and order dated 28th
October 2020 (for short, ‘the impugned judgment’) passed by the
National Green Tribunal, Principal Bench, New Delhi (for short, ‘the
NGT’). There is also a challenge to the order dated 24th December
2020, by which, the NGT rejected the review petition filed by the
appellant for seeking review of the impugned judgment.
2. A notification was issued on 14th September 2006 (for short, ‘the first
EC notification’) by the Ministry of Environment and Forests (for short,
‘MoEF’) in exercise of powers under sub-section (1) and clause (v)
of sub-section (2) of Section 3 of the Environment (Protection) Act,
1986 (for short, ‘the EP Act’) read with clause (d) of sub-rule (3) of
Rule 5 of the Environment (Protection) Rules, 1986 (for short, ‘the
EP Rules’). Clause 2 of the first EC notification is material, which
reads thus:
“2. Requirements of prior Environmental Clearance
(EC):- The following projects or activities shall require prior
environmental clearance from the concerned regulatory
authority, which shall hereinafter referred to be as the
Central Government in the Ministry of Environment and
Forests for matters falling under Category ‘A’ in the
Schedule and at State level the State Environment Impact
Assessment Authority (SEIAA) for matters falling under
Category ‘B’ in the said Schedule, before any construction
work, or preparation of land by the project management
except for securing the land, is started on the project or
activity:
(i) All new projects or activities listed in the Schedule
to this notification;
ii) Expansion and modernization of existing projects or
activities listed in the Schedule to this notification with
addition of capacity beyond the limits specified for the
concerned sector, that is, projects or activities which
[2024] 3 S.C.R. 1253
Noble M. Paikada v. Union of India
cross the threshold limits given in the Schedule, after
expansion or modernization;
(iii) Any change in product – mix in an existing
manufacturing unit included in Schedule beyond
the specified range.”
3. The notification provided that the projects falling under categories
A and B set out in the Schedule to the notification will require prior
Environmental Clearance (EC) from the concerned Regulatory
Authority. The Regulatory Authorities for different projects have been
named in clause (2) of the first EC notification. For the A category,
the Central Government in the MoEF was named as the Regulatory
Authority. For projects in the B category, the State Environment
Impact Assessment Authority (for short, ‘SEIAA’) was named as the
Regulatory Authority. Various procedural aspects regarding applying
for a grant of EC, its processing, etc., have been incorporated in
the first EC notification. There were subsequent modifications to the
first EC notification. Another notification was issued on 15th January
2016 (for short, ‘the second EC notification’), by which the first EC
notification was partly modified. Clause 7B and Appendix-IX were
added to the first EC notification, providing for an exemption to
specific categories of projects from the requirement of obtaining EC.
Item 6 in the said Appendix-IX reads thus:
“Appendix-IX
Exemption of certain cases from requirement of
Environmental Clearance
The following cases shall not require prior environmental
clearance, namely:
.. .. .. .. .. .. .. .. .. .. .. .. .. ..
.. .. .. .. .. .. .. .. .. .. .. .. .. ..
6. Dredging and de-silting of dams, reservoirs, weirs,
barrages, river, and canals for the purpose of their
maintenance, upkeep and disaster management.
.. .. .. .. .. .. .. .. .. .. .. .. .. ..”
Though the NGT struck down a part of the second EC notification,
Appendix-IX was not touched.
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4. In the Original Application subject matter of these appeals, the
challenge before the NGT was to the notification dated 28th March
2020 (for short, ‘the impugned notification’), which modified earlier EC
notifications. Appendix IX to the second EC notification provided for
exempting certain cases from the requirement of obtaining EC. By the
impugned notification, Appendix-IX was substituted. The substituted
Appendix-IX provided that the prior EC will not be required in the
thirteen cases set out therein. We are concerned with items 6 and
7 of the substituted Appendix-IX, which read thus:
“Appendix-IX
Exemption of certain cases from requirement of
Environmental Clearance: The following cases shall not
require Prior Environmental Clearance, namely:-
.. .. .. .. .. .. .. .. .. .. .. .. ..
.. .. .. .. .. .. .. .. .. .. .. .. ..
6. Extraction or sourcing or borrowing of ordinary earth for
the linear projects such as roads, pipelines, etc.
7. Dredging and de-silting of dams, reservoirs, weirs,
barrages, river and canals for the purpose of their
maintenance, upkeep and disaster management.
.. .. .. .. .. .. .. .. .. .. .. .. ..”
Thus, item 6 in Appendix IX of the second EC notification was
maintained but was renumbered as item 7. Item 6 was newly added.
5. Before we go into the challenge to the impugned notification, we must
note here that items 6 and 7 were substituted by further notification
dated 30th August 2023 (for short, ‘amended impugned notification’)
issued during the pendency of these appeals. Substituted items 6
and 7 in the amended impugned notification read thus:
“6. Extraction or sourcing or borrowing of ordinary earth
for the linear projects such as roads, pipelines, etc.
shall be subject to the compliance of standard operating
procedures and environmental safeguards issued in this
regard from time to time.
7. Dredging and de-silting of dams, reservoirs, weirs,
barrages, river and canals for the purpose of their
[2024] 3 S.C.R. 1255
Noble M. Paikada v. Union of India
maintenance, upkeep and disaster management shall be
subject to the compliance of environmental safeguards
issued in this regard from time to time.”
6. The impugned notification was challenged on several grounds
before the NGT by filing the Original Application subject matter of
these appeals. Apart from other grounds, it was contended that the
impugned notification violated the directions issued by this Court in
the case of Deepak Kumar & Ors. v. State of Haryana & Ors1
.
Even the ground that the impugned notification was arbitrary and
violative of Article 14 of the Constitution of India was invoked. We
must note that in the Original Application, the specific challenge was
only to item 6 of the impugned notification.
7. By the impugned judgment, it was held that the exemption under
item 6 should strike a balance. The finding recorded on this aspect
in paragraph 8 of the impugned judgment reads thus:
“8. The second issue is exemption from requirement of
EC for extraction or sourcing or borrowing of ordinary
earth for the linear projects such as roads, pipelines,
etc and for dredging and de-silting of dams, reservoirs,
weirs, barrages, river and canals for the purpose of their
maintenance, upkeep and disaster management. It is
possible to take a view that the EC can be exempted
for these situations on account of assessment already
made or for extraction of earth for linear project
but such blanket exemption must be balanced by
sustainable development concept. The exemption
should strike balance and instead of being blanket
exemption, it needs to be hedged by appropriate
safeguards such as the process of excavation and
quantum. Similarly, in respect of item 7, safeguards
are required to be incorporated in terms of disposal
of dredged material. These aspects are not shown to
have been considered and the reply does not provide
any explanation thereon. Learned counsel for the
MoEFCC is also unable to provide any justification why
these aspects be not addressed and incorporated in the
1 [2012] 4 SCR 819 : (2012) 4 SCC 629
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notification for ensuring sustainable development concept
which is required to be enforced by this Tribunal under
section 20 read with section 15 of the NGT Act, 2010.”
(emphasis added)
Accordingly, the Original Application was disposed of by directing
the Ministry of Environment, Forest and Climate Change (for short,
‘MoEF&CC’) to revisit the impugned notification within three months.
An application for review was filed, which was dismissed by the
second impugned order dated 24th December 2020.
8. Notice was ordered to be issued on 13th December 2021 on the
appeals. On 10th August 2023, submissions were heard, and the
judgment was reserved. After the judgment was reserved, the
respondent-Union of India filed an affidavit of Dr Sujit Kumar Bajpayee,
Joint Secretary, MoEF&CC, dated 12th September 2023. Along with the
affidavit, two documents were also filed on record. The first document
was the Office Memorandum dated 21st August 2023 issued by the
MoEF&CC, purportedly laying down the enforcement mechanism for
items 6 and 7 in the impugned notification. The second document
brought on record was the amended impugned notification. In view
of the issuance of the amended impugned notification, even after
the verdict was reserved, the parties were permitted to make further
submissions on the legality and validity of the amended impugned
notification.
SUBMISSIONS
9. The learned senior counsel appearing for the appellant submitted
that the object of the EP Act is to provide for the protection and
improvement of the environment. She invited our attention to Section
3 of the EP Act, which confers a power on the Central Government to
take such measures as it deems necessary or expedient for protecting
and improving the quality of the environment and preventing and
abating environmental pollution. She pointed out that the first EC
notification was issued in the exercise of powers conferred under subsection (1) and clause (v) of sub-section (2) of Section 3 of the EP
Act. Clause (v) empowers the Central Government to take measures
for restrictions of the areas, in which any industries, operations or
processes or class of industries, operations or processes shall not be
carried out or shall be carried out subject to certain safeguards. She
[2024] 3 S.C.R. 1257
Noble M. Paikada v. Union of India
also invited our attention to the EP Rules and, in particular, Rule 5
thereof. It lays down that the Central Government may consider the
factors set out in sub-rule (1) while prohibiting or restricting the location
of industries and carrying out operations and processes in different
areas. She pointed out that before issuing the first EC notification,
the process laid down in sub-rule (3) of Rule 5 was followed.
10. The learned senior counsel invited our attention to a decision of this
Court in the case of Hanuman Laxman Aroskar v. Union of India2
.
She also relied upon a decision of this Court in the case of Deepak
Kumar1
. She pointed out that as a result of item 6, there will not
be any regulation of the extraction of ordinary earth for utilisation
in linear projects, such as, roads, pipelines, etc. She submitted that
such a blanket exemption will defeat the very object of enacting the
EP Act and, in particular, Section 3 thereof. She submitted that the
decision of this Court in the case of Deepak Kumar1 and subsequent
decisions mandated that there must be a requirement to obtain EC
for the minor minerals pertaining to materials used for linear projects.
The learned senior counsel submitted that allowing the extraction of
the earth in such an indiscriminate manner is wholly arbitrary and
violative of Article 14 of the Constitution of India.
11. Inviting our attention to the amended impugned notification, the
learned senior counsel pointed out that the substituted item 6
provides that extraction of ordinary earth for linear projects shall be
subject to compliance with the Standard Operating Procedure (SOP)
and safeguards issued in this regard from time to time. Thus, the
exemption remains. However, an SOP will be laid down to avail the
exemption. She urged that the substituted item 6 is more arbitrary.
12. The learned senior counsel also pointed out that the whole issue
was directed to be reconsidered under the impugned judgment.
But nothing has been placed on record to show that the Central
Government made reconsideration in true letter and spirit.
13. The learned senior counsel pointed out that the decision of this
Court in the case of Deepak Kumar1 still holds the field, which
directs that the leases of minor minerals, including their renewal
for an area less than 5 hectares, shall be granted by the States/
2 [2019] 5 SCR 916 : (2019) 15 SCC 401
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Union territories only after getting EC. She submitted that the
impugned notification and the amended impugned notification,
insofar as item 6 is concerned, are completely contrary to the
directions issued by this Court in Deepak Kumar1. She also
urged that before publishing the draft of the impugned notification,
objections to the draft notification were not invited. She submits
that this action contravenes the provisions of sub-rule (3) of Rule
5 of the EP Rules.
14. The learned Additional Solicitor General appearing on behalf of the
respondent – Union of India, submitted that in view of the insertion of
Section 8B in the Mines and Minerals (Development and Regulation)
Act, 1957 (for short, ‘the MMDR Act’), the amendment to the first EC
notification was required to be made. Our attention was invited to
Section 8B, incorporated on 13th March 2020 and amended Section
8B, effective from 28th March 2021. She submits that the provisions
of the first EC notification must conform with the amended provisions
of the MMDR Act, and therefore, the amendments were necessitated.
She also pointed out that in terms of the impugned order, the matter
was placed before the Expert Appraisal Committee (EAC), non-coal
mining and EAC, MoEF&CC and others in a meeting. Thereafter, the
issue was deliberated in the meeting convened on 30th June 2022
under the chairmanship of the Joint Secretary of the concerned
department. She invited our attention to the minutes of the said
meeting held on 30th June 2022. She submitted that the ultimate
endeavour is to uphold the principles of sustainable development.
Relying upon the amended impugned notification, she submitted that
now the exemption granted by items 6 and 7 cannot be said to be
arbitrary, and it will be subject to compliance with the SOP issued
on this behalf from time to time. Therefore, safeguards have been
introduced, and the exemption is not blanket. She also pointed out
that the Office Memorandum dated 21st August 2023 takes care of
the safeguards. It was also submitted that the grant of exemption
from the first EC notification is a matter of policy for the Central
Government and no interference be called for with policy matters.
CONSIDERATION OF SUBMISSIONS
15. We have carefully considered the submissions. The EP Act
was brought into force on 19th November 1986. The statement
of objects and reasons of the EP Act specifically refers to the
[2024] 3 S.C.R. 1259
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substantive decline in environmental quality due to increasing
pollution, loss of vegetal cover, etc. It also notes the growing risk
of environmental accidents and threats to life support systems. It
refers to the decisions taken at the United Nations Conference on
the Human Environment held in Stockholm in June 1972. In the
said Conference, the world communities resolved to protect and
enhance the environmental quality. Clause (3) of the statement of
objects and reasons reads thus:
“(3) In view of what has been stated above, there
is urgent need for the enactment of a general
legislation on environmental protection which
inter alia, should enable co-ordination of activities
of the various regulatory agencies, creation of an
authority or authorities with advocate powers for
environmental protection, regulation of discharge of
environmental pollutants and handling of hazardous
substances, speedy response in the event of accidents
threatening environment and deterrent punishment to
those who endanger human environment, safety and
health.”
(emphasis added)
Even from the preamble of the EP Act, it is apparent that the
object is to provide protection to the environment and to improve
the environment. Section 3 of the EP Act confers power on the
Central Government to take measures to protect and improve the
environment. Sub-sections (1) and (2) of Section 3 read thus:
“3. Power of Central Government to take measures to
protect and improve environment.-
(1) Subject to the provisions of this Act, the Central
Government, shall have the power 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.
(2) In particular, and without prejudice to the
generality of the provisions of sub-section (1),
such measures may include measures with
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respect to all or any of the following matters,
namely:--
(i) co-ordination of actions by the State Governments,
officers and other authorities--
(a) under this Act, or the rules made thereunder,
or
(b) under any other law for the time being in
force which is relatable to the objects of
this Act;
(ii) planning and execution of a nation-wide
programme for the prevention, control and
abatement of environmental pollution;
(iii) laying down standards for the quality of
environment in its various aspects;
(iv) laying down standards for emission or discharge
of environmental pollutants from various sources
whatsoever: Provided that different standards for
emission or discharge may be laid down under
this clause from different sources having regard
to the quality or composition of the emission
or discharge of environmental pollutants from
such sources;
(v) restriction of areas in which any industries,
operations or processes or class of industries,
operations or processes shall not be carried
out or shall be carried out subject to certain
safeguards;
(vi) laying down procedures and safeguards for
the prevention of accidents which may cause
environmental pollution and remedial measures
for such accidents;
(vii) laying down procedures and safeguards for the
handling of hazardous substances;
(viii) examination of such manufacturing processes,
materials and substances as are likely to cause
environmental pollution;
[2024] 3 S.C.R. 1261
Noble M. Paikada v. Union of India
(ix) carrying out and sponsoring investigations and
research relating to problems of environmental
pollution;
(x) inspection of any premises, plant, equipment,
machinery, manufacturing or other processes,
materials or substances and giving, by order, of
such directions to such authorities, officers or
persons as it may consider necessary to take
steps for the prevention, control and abatement
of environmental pollution;
(xi) establishment or recognition of environmental
laboratories and institutes to carry out the
functions entrusted to such environmental
laboratories and institutes under this Act;
(xii) collection and dissemination of information in
respect of matters relating to environmental
pollution;
(xiii) preparation of manuals, codes or guides relating
to the prevention, control and abatement of
environmental pollution;
(xiv) such other matters as the Central Government
deems necessary or expedient for the purpose
of securing the effective implementation of the
provisions of this Act.”
(emphasis added)
Section 3 of the EP Act must be read with Rule 5 of the EP Rules.
Rule 5 has been enacted to give effect to clause (v) of sub-section (2)
of Section 3 of the EP Act, which empowers the Central Government
to put restrictions on the areas in which industries, operations or
processes shall not be carried out or shall be carried out subject to
certain safeguards. Rule 5 of the EP Rules reads thus:
“5. Prohibition and Restriction on the location
of industries and the carrying on processes and
operations in different areas.
(1) The Central government may take into consideration
the following factors while prohibiting or restricting the
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location of industries and carrying on of processes
and operations in different areas-
(i) Standards for quality of environment in its
various aspects laid down for an area.
(ii) The maximum allowable limits of concentration
of various environmental pollutants (including
noise) for an area.
(iii) The likely emission or discharge of environmental
pollutants from an industry, process or operation
proposed to be prohibited or restricted.
(iv) The topographic and climatic features of an area.
(v) The biological diversity of the area which, in
the opinion of the Central Government needs
to be preserved.
(vi) Environmentally compatible land use.
(vii) Net adverse environmental impact likely to be
caused by an industry, process or operation
proposed to be prohibited or restricted.
(viii) Proximity to a protected area under the Ancient
Monuments and Archaeological Sites and
Remains Act, 1958 or a sanctuary, National
Park, game reserve or closed area notified as
such under the Wild Life (Protection) Act, 1972
or places protected under any treaty, agreement
or convention with any other country or countries
or in pursuance of any decision made in any
international conference, association or other body.
(ix) Proximity to human settlements.
(x) Any other factor as may be considered by
the Central Government to be relevant to the
protection of the environment in an area.
(2) While prohibiting or restricting the location of
industries and carrying on of processes and
operations in an area, the Central Government
shall follow the procedure hereinafter laid down.
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(3) (a) Whenever it appears to the Central Government
that it is expedient to impose prohibition or
restrictions on the locations of an industry or
the carrying on of processes and operations
in an area, it may by notification in the Official
Gazette and in such other manner as the Central
Government may deem necessary from time to
time, give notice of its intention to do so.
(b) Every notification under clause (a) shall give
a brief description of the area, the industries,
operations, processes in that area about which
such notification pertains and also specify the
reasons for the imposition of prohibition or
restrictions on the locations of the industries and
carrying on of process or operations in that area.
(c) Any person interested in filing an objection
against the imposition of prohibition or restrictions
on carrying on of processes or operations as
notified under clause (a) may do so in writing to
the Central Government within sixty days from
the date of publication of the notification in the
Official Gazette.
(d) The Central Government shall within a period
of one hundred and twenty days from the date
of publication of the notification in the Official
Gazette consider all the objections received
against such notification and may within 1 [three
hundred and sixty-five days] from such day of
publication] impose prohibition or restrictions on
location of such industries and the carrying on
of any process or operation in an area.
(4) Notwithstanding anything contained in subrule (3), whenever it appears to the Central
Government that it is in public interest to do so,
it may dispense with the requirement of notice
under clause (a) of sub-rule (3).”
(emphasis added)
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SCOPE OF ADJUDICATION
16. As far as the scope of adjudication in these appeals is concerned,
it is necessary to refer to the Original Application no.190 of 2020
filed by the appellant. There were three prayers made in the said
Original Application, which read thus:
"(a) Pass an Order quashing newly inserted Clause 6 of
the Impugned Notification dated 28.03.2020 as being
violative of Article 14 and 21 of the Constitution of
India, ultra vires the provisions of the EPA Act, 1986,
the EIA Notification dated 14.09.2006, and in further
violation of the Judgment passed by the Hon’ble
Supreme Court in the Deepak Kumar case (supra);
(b) Pass an appropriate Order quashing the Impugned
Notification dated 28.03.2020 as being violative of the
principles of Polluter Pay, Non-regression, sustainable
development and Precautionary Principle;
(c) Pass an appropriate Order directing the Respondent
not to allow any mining of ordinary earth without a
prior environmental clearance.”
From the prayers mentioned above in clauses (a) to (c), it is apparent
that the specific challenge was to item 6. Regarding clause (b),
perhaps the only ground of challenge taken in the application was
that no public interest was involved in exercising the power under
sub-rule (4) of Rule 5 of the EP Rules for dispensing with public notice.
17. After perusal of the impugned judgment, we find that the submissions
made by the learned counsel appearing for the appellant before the
NGT were not recorded therein. The order dated 29th June 2021
passed by this Court in the present appeals is relevant, which reads
thus:
“X(name masked), learned senior counsel appearing for
the appellant, submits that the learned counsel appearing
for the appellant before the National Green Tribunal
argued that exemption could not have been granted by
the Notification of the Ministry of Environment, Forest and
Climate Change which has not been considered by the
Tribunal. Y(name masked), learned counsel who appeared
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before the Tribunal, is directed to file an affidavit that he,
in fact, raised this point before the Tribunal during the
course of hearing.
List the matter after two weeks.”
The advocate filed an affidavit dated 11th December 2021. In paragraph
5(a) of the affidavit, he stated thus:
“5. .. .. .. .. .. .. .. .. ..
(a) That the OA No. 190/2020 was listed for hearing before
the Hon’ble Tribunal by way of video conferencing on
28.10.2020. On that day the Deponent appeared before
the Hon’ble Tribunal and was granted a hearing. During
the course of the hearing the Deponent raised his
submissions inter-alia including the fact that the
Ministry of Environment and Forests did not have
the power to exempt the removal of ordinary earth
from the purview of the EIA Notification and that the
exemption as granted for the removal of ordinary earth
was illegal and ultra vires the Environment Protection
Act as well as the judgment of this Hon’ble Court in
Deepak Kumar’s Judgment. It is submitted that the
aforesaid point was raised, however the Hon’ble Tribunal
did not find merit in the said submission as is evident from
the judgment dated 28.10.2020.”
(emphasis added)
Thus, the Advocate-on-Record stated in the affidavit that what was
argued before the NGT was the challenge to the exemption granted
for the removal of ordinary earth for linear projects. We may note
here that item 7 in the substituted Appendix-IX brought on record by
the impugned notification was already there as item 6 in Appendix-IX
to the second EC notification dated 15th January 2016. The appellant
did not challenge the notification dated 15th January 2016. Even if
we set aside or strike down item 7 regarding dredging/desilting in the
impugned notification, it will continue to exist as item 6 in the second
EC notification. The second EC notification is not under challenge.
Therefore, we restrict the challenge to item 6 in the substituted
Appendix-IX to the impugned notification.
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CHALLENGE TO ITEM 6 IN THE IMPUGNED NOTIFICATION
Failure to follow the procedure prescribed by sub-rule (3) of
Rule 5
18. We have already quoted Rule 5 of the EP Rules. There is no
dispute that the first EC notification, the second EC notification and
the impugned notification were issued in the exercise of powers
under sub-rule (1) of Rule 5 of the EP Rules. Sub-rule (2) of Rule
5 provides that while passing an order prohibiting or restricting the
location of industries and carrying on processes and operations, the
Central Government shall follow the procedure laid down in Rule 5.
Sub-rule (3) of Rule 5 requires the Central Government to publish
a notice of its intention to do so in the official Gazette and in such
other manner as the Central Government deems fit. Any person
interested is entitled to file objections against the proposed prohibition
or restriction. The Central Government is required to consider the
objections before issuing the final notification. The said procedure
was followed before publishing the first EC notification.
19. Sub-rule (4) of Rule 5 empowers the Central Government to dispense
with the requirement of publication of notice under sub-rule (3) of Rule 5
when it appears to the Central Government that it is in the public interest
to do so. Thus, sub-rule (4) of Rule 5 is an exception to sub-rule (3).
The exception can be invoked only on the grounds of public interest.
20. Now, we turn to the impugned notification dated 28th March 2020.
The recitals of the said notification are important, which read thus:
“S.O. 1224(E).—WHEREAS, vide the Mineral Laws
(Amendment) Act, 2020 (2 of 2020), the Mines and Minerals
(Development and Regulation) Act, 1957 (67 of 1957)
(hereinafter referred to as MMDR Act) has been amended
with effect from the 10th day of January, 2020 and, inter
alia, new section 8B relating to the provisions for transfer
of statutory clearances has been inserted;
AND WHEREAS, sub-section (2) of section 8B of the
MMDR Act provides that notwithstanding anything
contained in this Act or any other law for the time being
in force, the successful bidder of mining leases expiring
under the provisions of sub-sections (5) and (6) of section
8A and selected through auction as per the procedure
provided under this Act and the rules made thereunder,
[2024] 3 S.C.R. 1267
Noble M. Paikada v. Union of India
shall be deemed to have acquired all valid rights, approvals,
clearances, licences and the like vested with the previous
lessee for a period of two years;
AND WHEREAS, sub-section (3) of section 8B of the
MMDR Act provides that notwithstanding anything
contained in any other law for the time being in force,
it shall be lawful for the new lessee to continue mining
operations on the land, in which mining operations were
being carried out by the previous lessee, for a period of two
years from the date of commencement of the new lease;
AND WHEREAS, in pursuance of the aforesaid amendment
to the MMDR Act, the Central Government deems it
necessary to align the relevant provisions of the notification
of the Government of India in the erstwhile Ministry of
Environment and Forests number S.O. 1533 (E), dated
the 14th September, 2006 (hereinafter referred to as the
EIA Notification, 2006);
AND WHEREAS, the Ministry of Environment, Forest
and Climate Change is in the receipt of representations
for waiver of requirement of prior environmental
clearance for borrowing of ordinary earth for roads;
and manual extraction of lime shells (dead shell),
shrines, etc., within inter tidal zone by the traditional
community;
Now, therefore, in exercise of the powers conferred
by sub-section (1) and clause (v) of sub-section (2) of
section 3 of the Environment (Protection) Act, 1986 (29 of
1986), read with sub-rule (4) of rule 5 of the Environment
(Protection) Rules, 1986, the Central Government, after
having dispensed with the requirement of notice under
clause (a) of sub-rule (3) of the rule 5 of the said rules,
in public interest, and in supersession of the notification
number S.O. 4307(E), dated the 29th November, 2019,
hereby makes the following further amendments in the
EIA Notification, 2006, namely:-
.. .. .. .. .. .. .. .. .. .. .. .. .. .. ..”
(emphasis added)
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By the impugned notification, after sub-paragraph (2) of paragraph
11 of the first EC notification, sub-paragraph (3) was inserted to give
effect to Sections 8A and 8B of the MMDR Act. An entry has been
made in the Schedule against Item 1(a) in column (5) for inserting
a clause dealing with the evacuation or removal and transportation
of already mined out material. Appendix IX, which contains the list
of projects exempted from obtaining EC, was substituted by the
impugned notification.
21. We have quoted above the recitals of the impugned notification. The
first three recitals refer to the necessity of giving effect to Sections
8A and 8B of the MMDR Act. Thereafter, the last recital refers to
the Ministry receiving representations for waiver of the requirement
of prior EC for borrowing of ordinary earth for roads. After that,
without giving any details, it is mentioned that in the public interest,
the requirement of publication of notice under sub-rule (3) of Rule
5 was dispensed with. At this stage, we may refer to the relevant
ground specifically taken in the Original Application filed by the
appellant before the NGT. Ground J was specifically taken on this
aspect, which reads thus:
“J. Because the Respondent has deliberately and
ostensibly circumvented the requisite procedures before
issuing the Impugned Notification, including evading
previous publication, inviting public objections under Rule
5(3) of the EP Rules, 1986, and by wrongly exercising its
powers under Rule 5(4) of the EP Rules under the garb
of “public interest” during the Covid-19 national lockdown
without offering even a shred of reasoning for its actions.
It is most respectfully submitted that the amendments
brought forth by the Impugned Notification serve and
further the interest of private miners and contractors, and
the actions of ratifying such illegal and mala fide acts of
disregard and disobedience to environmental norms is in
fact against public interest at large.”
22. We have carefully perused the counter affidavit filed by the MoEF&CC
before the NGT. The said affidavit does not deal with Ground J at all.
It does not specify or set out reasons for concluding that in the public
interest, the requirement of publication of prior notice was needed to
be dispensed with. It is pertinent to note that before the issue of the
second EC notification by which Appendix-IX was incorporated, the
[2024] 3 S.C.R. 1269
Noble M. Paikada v. Union of India
procedure of inviting objections to the draft notification was followed,
and the objections were considered. There is no reason to dispense
with this important requirement before publishing the impugned
notification. Article 21 guarantees a right to live in a pollution-free
environment. The citizens have a fundamental duty to protect and
improve the environment. Therefore, the participation of the citizens
is very important, and it is taken care of by allowing them to raise
objections to the proposed notification. After all, citizens are major
stakeholders in environmental matters. Their participation cannot
be prevented by casually exercising the power under sub-rule (4)
of Rule 5.
23. In the present appeals, the questions of law (e) and (f) have been
incorporated regarding the illegal invocation of the power under subrule (4) of Rule 5 of the EP Rules. In the grounds of the challenge,
ground EE has been taken explicitly on this aspect. We have perused
the counter affidavit filed by the MoEF&CC in these appeals. We
find from the counter affidavit that the contention raised regarding
the illegal invocation of power under sub-rule (4) of Rule 5 has not
been dealt with. We are not going into the question of whether it
was necessary for the Central Government to specify reasons in the
impugned notification itself why it came to the conclusion that in the
public interest, the requirement of public notice should be dispensed
with. However, the reasons for the said conclusion ought to have been
set out in the counter affidavit filed before the NGT or, at least, in the
counter affidavit filed before this Court. The document recording the
satisfaction of the competent authority about the existence of public
interest and the nature of the public interest ought to have been
produced by the Ministry. But, no such document was produced.
Only one conclusion can be drawn. The drastic decision to invoke
sub-rule (4) of Rule 5 was made without any application of the mind.
Hence, the decision-making process has been vitiated.
24. The impugned notification was issued two days after the nationwide
lockdown was imposed due to the COVID-19 pandemic. At that time,
the work of linear projects, such as roads, pipelines, etc., had come
to a grinding halt. So, there was no tearing hurry to modify the EC
notifications. Apart from the fact that no reasons have been assigned
in the counter affidavit filed by the Central Government for coming
to the conclusion that in the public interest, the requirement of prior
publication of notice was required to be dispensed with, we fail to
1270 [2024] 3 S.C.R.
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understand the undue haste shown by the Central Government in
issuing the impugned notification during the nationwide lockdown.
Therefore, the inclusion of item 6 of the substituted Appendix-IX
will have to be held illegal. We have already given reasons for not
dealing with the challenge to item 7 of the impugned notification.
ARBITRARINESS
25. There is one more important ground for striking down item 6. But
for item 6 in Appendix-IX to the impugned notification, for extraction,
sourcing, or borrowing of ordinary earth for linear projects, prior EC
would have been required in terms of the first EC notification. The very
object of issuing the first EC notification incorporating the mandatory
requirement of obtaining EC for projects was that the damage to the
environment must be minimised while implementing projects. When
an exception is sought to be carved out by incorporating AppendixIX to the requirement of obtaining EC in the first EC notification, the
exception must be specific. Item 6 grants exemption for “extraction
or sourcing or borrowing of ordinary earth for linear projects, such as
roads, pipelines, etc.” There is no specification about the quantum of
ordinary earth, which can be extracted on the basis of the exemption.
There is no specification of the area which can be used to extract
ordinary earth. It is also not provided that only that quantity of ordinary
earth, which is required to implement the linear projects, is exempted.
Importantly, “linear projects” have not been defined. Without the
definition, it is difficult to imagine which projects will be termed linear
projects. The term “linear projects” is very vague. The process to
be adopted for excavation has not been set out. Thus, item 6 is a
case of completely unguided and blanket exemption, which is, per
se, arbitrary and violative of Article 14 of the Constitution of India.
There is no provision for setting up an authority which will decide
whether a particular linear project is covered by item 6.
26. As stated earlier, during the pendency of the appeals, an amendment
was made to item 6 by the notification dated 30th August 2023.
Even the amended impugned notification does not elaborate on
the concept of linear projects. The only addition to item 6 is that
the extraction, sourcing or borrowing shall be subject to compliance
with SOP and environmental safeguards issued in this regard from
time to time. The authority to issue the SOP and environmental
safeguards has not been specified. No provision has been made
[2024] 3 S.C.R. 1271
Noble M. Paikada v. Union of India
to enforce the SOP and environmental safeguards. No restriction is
imposed on the quantum of ordinary earth, which can be extracted
for linear projects. Therefore, even the amended item 6 continues
to suffer from the same vice of arbitrariness, which Article 14 of the
Constitution of India prohibits.
27. The learned Additional Solicitor General placed reliance on the Office
Memorandum dated 21st August 2023. It provides that before carrying
on activities mentioned in entry 6, the project proponents must notify
the State Pollution Control Board/Pollution Control Committees. The
State Pollution Control Boards are required to monitor the compliance
status of the SOP/environmental safeguards. As entry 6 is arbitrary,
the Office Memorandum is of no consequence. Hence, on account of
the violation of Article 14, item 6 in the impugned notification, as well
as the amended impugned notification, will have to be struck down.
As noted earlier, the object of the EP Act is to protect and improve the
environment. Apart from the illegality committed by non-compliance
with sub-rule (3) of Rule 5 of the EP Rules, the exemption granted
without incorporating any safeguards is completely unguided and
arbitrary. Grant of such blanket exemption completely defeats the
very object of the EP Act.
NON-COMPLIANCE WITH THE DIRECTIONS OF THE NGT
28. In paragraph 8 of the impugned order, which we have quoted earlier,
the NGT observed that the blanket exemption needs to be hedged
by appropriate safeguards, such as, the process of excavation
and quantum. Therefore, in paragraph 9, a direction was issued
to MoEF&CC to revisit the impugned notification in the light of the
observations made in paragraph 8. Within the three months provided
by the NGT to do so, no steps had been taken to revisit item 6 of
the impugned notification.
29. The Ministry has filed an additional affidavit dated 18th July 2023,
and reliance has been placed on the guidelines for sand mining.
As far as item 6 is concerned, in the counter affidavit, reliance
was placed on the Office Memorandum dated 8th August 2022,
purportedly issued in terms of the directions issued in paragraph 9 of
the impugned judgment. It records that item 6 shall be subject to the
SOP attached to the said Office Memorandum. We have perused the
said SOP. We find that the SOP creates no regulatory machinery to
ensure the implementation of the terms of the SOP. The SOP does
1272 [2024] 3 S.C.R.
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not refer to item 6 at all; it merely refers to the activities relating to
the identification to borrow areas to obtain earth or soil materials. It
does not refer to extracting ordinary earth for linear projects, such
as roads, pipelines, etc. Therefore, the said SOP can hardly be said
to be in terms of what the NGT ordered the Central Government to
do in terms of paragraphs 8 and 9.
30. We are not entertaining a challenge to item 7 of the impugned
notification. As none of the respondents have challenged the
impugned notification, they will have to implement the directions
issued in terms of paragraph 9 of the impugned judgment regarding
item 7.
31. Thus, notwithstanding the specific directions issued in paragraph
8 read with paragraph 9 of the impugned judgment, no safeguards
have been provided, such as laying down processes, the mode and
the manner of excavation and quantum.
32. Therefore, we have no hesitation in striking down item 6 of the
substituted Appendix-IX forming part of the impugned notification
dated 28th March 2020 and item 6 of the amended impugned
notification dated 30th August 2023. Accordingly, we quash item 6
in the two notifications above.
33. The appeals are, accordingly, partly allowed on above terms. There
will be no order as to costs.
Headnotes prepared by: Divya Pandey Result of the case:
Appeals partly allowed.
