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BEFORE THE NATIONAL GREEN TRIBUNAL

(PRINCIPAL BENCH), NEW DELHI

APPEAL No. 64/2012

28, February, 2013

CORAM:

1. Hon’ble Shri Justice V.R. Kingaonkar

(Judicial Member)

2. Hon’ble Prof.( Dr.) P.C. Mishra

(Expert Member)

3. Hon’ble Shri P.S. Rao

(Expert Member)

4. Hon’ble Shri Ranjan Chatterjee

(Expert Member)

5. Hon’ble Shri Bikram Singh Sajwan

(Expert Member)

B E T W E E N:

M/S HINDALCO INDUSTRIES LTD.

A company incorporated

under the Companies Act, 1956

having its registered office at

Century Bhawan, Dr. Annie Besant Road,

Worli, Mumbai-400025

through its

Company Secretary &

authorized Signatory,

Shri Anil Malik, S/o Shri Kishan Kumar Malik,

aged about 50 years

Office at 3rd Floor,

Century Bhawan, Dr. Annie Besant Road,

Worli, Mumbai-400025 ….Appellant

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A N D

1. STATE OF MAHARASHTRA,

Through its Principal Secretary (Forest)

Department of Revenue & Forest,

Government of Maharashtra

Mantralaya,

Mumbai.

2. UNDER SECRETARY,

Government of Maharashtra

R.No. 456/461(Extn)

HutatmaRajguruChowk,

Madam Kama Marg,

Mantralaya,

Mumbai-400032

3. THE PRINCIPAL CHIEF CONSERVATOR OF FOREST, (HOFF)

Office of Principal Chief Conservator of Forest, HOFF

Vanbhavan, Civil Lines,

Ramgiri Road, Nagpur,

Maharashtra … Respondents

(Advocates appeared: Mr. Krishnan Venugopal, Senior Advocate with Mr. Syed Shahid Hussain, Advocate for Appellant and Mr. Preshit Surshe, Advocate for Respondents No. 1 to 3)

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JUDGMENT

Being aggrieved by communication dated 9.10.2012 issued by Respondent

No. 1, refusing grant of permission for three (3) month’s time beyond 2.10.2011

for lifting and transportation of approximately 1.6 lakh tonnes of mined-out bauxite

mineral, deposited near Kasarsada Bauxite Mine situated at Chandgad in Kolhapur

district, this Appeal is filed. The Appellant challenges the said communication on

various grounds.

2. The prayer made in the Appeal may be set- out for better understanding of the

reliefs sought by the Appellant.

“In view of the above facts and circumstances it is most respectfully prayed

that this Hon’ble Tribunal may be pleased to:

1) Quash the impugned order dated 9.10.2012 passed by the Respondent

No.1.

2) Direct the Respondents 1 to 3 to forward the proposal of the Appellant to

the Central Government for grant of approval.”

3. Some of the undisputed facts may be stated at the outset. The Appellant (M/s

Hindalco Industries Ltd.) is a Public Limited Company incorporated under the

Company’s Act,1956. The Appellant runs an alumina refinery plant at Belgaum

(Karnataka) at a distance of about 50/60 Km. from Village Kasarsada, District

Kolhapur (MS). The Appellant took necessary mining license from the Competent

Authority for mining of bauxite mineral from the site of the mining. The license is

valid till May 2018. Initially the mining lease was granted by the Respondent No.1

in favour of the Appellant for mining of bauxite mineral from area of about 319.70

hectares for a period of 30 years from 1968 to 1998.. The mine was under operation

between 1974 to 1998 in terms of the mining license. The Appellant gave

Application for renewal of the mining lease over an area of 207.20 hectares for

further period of 20 years as per the relevant Rules.

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4. The State Government executed the mining lease in favour of Hindalco for a

period of ten years with effect from 25.9.2008. The Central Government granted

permission for diversion of 106.76 ha of forest land for a period of 10 (ten) years

subject to evaluation of the compliance of conditions at the end of five years. The

approval for Forest Clearance (FC) was to expire on 2.10.2011. The Appellant

submitted a proposal to the Deputy Conservator of Forest, Kolhapur for renewal of

Forest Clearance only for 34.43 ha vide letter dated 30.3.2010 .On 2.6.2011 the

Appellant submitted another proposal addressed to the Deputy Conservator of

Forest, Kolhapur to grant permission to lift and transport the finished and semi-

finished mined out bauxite minerals within a period of three months from

2.10.2011,i.e. date of expiry of forest clearance (FC) as it was difficult to lift and

transport the mined-out minerals during monsoon period. The Deputy Conservator

of Forest, Kolhapur inspected the area and submitted recommendation Reports on

13.6.2011, 30.08.2011 and subsequently on 12.7.2011 to the Conservator of Forest

(T). The Chief Conservator of Forest (T) by order dated 24.10.2011 forwarded the

reports of the Deputy Conservator of Forests to the Principal Chief Conservator of

Forest(HoFF) (for short, PCCF), and Nodal Officer, State of Maharashtra, Nagpur

for taking further necessary action in the matter. The PCCF visited the site of the

mine on 8.2.2012. The Appellant had sought permission to lift the mined-out

mineral (bauxite) which was stacked at the site of the mine and could not be lifted

due to rainy season between June 2011 up till end of September 2011. The PCCF

by his letter dated 7.4.2012 gave a report to the State Government. On basis of

report of the PCCF, the Respondent No.1 rejected the proposal of the Appellant vide

the impugned communication. Thus, the mining lease issued to the Appellant is

valid and subsisting till September 2018. However since the Forest Clearance

period expired on 2.10.2011, and the Respondent No. 1 rejected recommendation for

further extension of such period, the mined-out bauxite could not be lifted and

transported by the Appellant.

5. The Appellant, stated briefly, has come out with a case that the Respondent No.1

ought to have forwarded the proposal to Central Government in accordance with the

relevant Rules. The lifting and transportation of the mineral by the Appellant will

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not cause any adverse impact on the ecology and environment. Rather ,the minerals

stored on the surface will have a negative impact on the environment in the long

run. The impugned communication is improper and illegal because it is against

principles of natural justice. No reasons are given for rejecting the proposal of the

Appellant. The impugned communication is thus arbitrary, illegal and bad in law.

The Appellant could be put to conditions and, in any case, the proposal should have

been forwarded to the Central Government instead of rejecting it by the Respondent

No. 1 on its own. The Report of the PCCF could not have been blindly accepted by

the Respondent No.1, particularly when, it is defective, factually incorrect and based

on surmises. The impugned communication is thus rendered in-valid due to lack of

proper basis as well as because of non-compliance of the principles of natural

justice. The Appellant, therefore, sought quashing of the impugned communication

and incidentally also prayed for direction to the Respondent Nos. 1 to 3 to forward

his proposal to the Central Government for grant of approval.

6. The Respondent Nos. 1 to 3 resisted the Appeal. They argued that the FC was

valid till 2.10.2011. The Appellant could have conveniently lifted and transported

the bauxite mineral prior to 2.10.2011, i.e before the expiry period of forest

clearance permission. The Appellant submitted three representations dated

28.12.2011, 24.2.2012 and 7.4.2012 and those representations were duly

considered by the PCCF. The PCCF noted that the mining site is on the Western

Ghat, which is an eco-sensitive area. The approval of said proposal for lifting and

transportation of mined-out minerals could have adverse impact on flora, fauna,

biodiversity etc. The removal of the dumped bauxite mineral is likely to cause soil

erosion and due to use of heavy machinery and excessive movement of heavy

vehicles needed for transportation of the minerals may cause adverse impact on the

environment. The lifting and transportation cannot be segregated from mining

activity as such. The recommendations of the PCCF are proper and correct. So

also, the decision taken by the Respondent No. 1 is legal and valid. On these

premises, the Respondent Nos. 1 to 3 sought dismissal of the Appeal.

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7. We have heard Learned Counsel for the parties. We have also carefully perused

the relevant documents placed on record. The points which arise for consideration

in this Appeal may be set out as follows:-

(1) Whether the impugned communication is legal and proper or that it is

arbitrary?

(2) Whether this Tribunal can direct the respondents to forward the proposal to the

MoEF with necessary recommendation granting permission to lift and

transport the mined-out bauxite minerals lying dumped at the mining site?

8. Mr. Venugopal, Learned Senior Counsel for the Appellant contended that the

impugned communication is non- speaking order as such and hence is violative of

principles of natural justice. He argued that the PCCF committed patent error by

mixing up the issue of lifting and transportation of the bauxite from the site of mine

with the issue of actual mining at the place. He argued that the Appellant never

urged for conducting any mining activity but had sought permission for lifting and

transporting of the already mined mineral i.e. bauxite. He submitted that the bauxite

was already mined but could not be the transported due to the monsoon season

between June, 2011 and September 2011. He submitted that the report of the PCCF

should have been closely scrutinized by the Respondent No. 1 and without proper

examination thereof, the impugned order is erroneously rendered. He further

submitted that the proposal was required to be forwarded to the Central Government

with recommendation of the Respondent No. 1. He argued that the Respondent No.

1 on its own could not have taken the final decision to reject the proposal. He

contended further that lifting of the mined material from the site of the mine and

transportation thereof is beneficial to the environment. In any case, such action will

not adversely affect the environment and ecology. He further argued that the mined-

out bauxite from the mine is owned by the Appellant because the Mining Lease is in

existence for period till May 2018. Hence, submission of Learned Senior Counsel

Mr. Venugopal is that it would be proper to permit lifting and transportation of the

bauxite which has already been mined and stacked at the mining site. He relied

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upon certain observations of this Tribunal in Appeal No. 3/2011(The Sarpanch

,Grampanchayat , Tiroda, Tq. Sawantwadi Vs. MoEF ). He urged, therefore, to

allow the Appeal.

9. Per contra, Learned Counsel Mr. Surshe, appearing for the Respondents No. 1-3,

submitted that in the absence of the receipt of extension of Forest Clearance the

Appellant should have completed the lifting and transportation work within the

validity period of forest clearance . He argued that renewal of Forest Clearance

license is not a matter of right. He further argued that the proposal of the Appellant

was not forwarded to the MoEF by the Respondent No. 1 because the proposal was

found detrimental to the cause of environment in the area and thus got rejected by

the State Government. He supports the impugned communication and the action of

the Respondents.

10. Before we proceed to consider merits of the rival submissions, it would be

useful to note the fact that the Appellant did not make any specific request for

permission to lift and transport the mined-out finished and semi-finished bauxite

minerals from the mining site. As pointed out earlier, the prayer clause in the

Appeal memo categorically shows that the Appellant sought relief of quashing the

impugned communication dated 9.10.2012 issued by the Respondent No. 1 along

with further relief that the proposal be directed to be forwarded to the Central

Government for grant of approval for extension of three month’s time beyond

2.10.2011 for lifting and transportation of mined-out bauxite mineral. In other

words, what the Appellant seeks, by way of relief, is direction to the Respondent 1

to forward the recommendation to the Central Government for consideration and

approval. If such relief is considered, this Tribunal would substitute the

discretionary and recommendatory powers of the Respondent No. 1, i.e. the State

Government as desired by the Appellant. That kind of substitution is outside the

scope of the appellate jurisdiction available to this Tribunal under Section 16 of the

National Green Tribunal Act, 2010. We make it explicit that the appellate

jurisdiction of this Tribunal is circumscribed by Section 16 of the NGT Act, 2010.

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So far as the Forest (Conservation) Act, 1980 is concerned, the relevant provision in

Sec. 2 A of the said Act reads as follows:

i. “Sec. 2 A. Appeal to National Green Tribunal:- Any person aggrieved, by

an order or decision of the State Government or other authority made

under Section 2, on or after the commencement of the National Green

Tribunal Act, 2010, may file an appeal to the National Green Tribunal

established under Section 3 of the National Green Tribunal Act, 2010, in

accordance with provisions of that Act.”

11. Section 16 (e) of the National Green Tribunal Act, 2010 reads as

follows:

“16. Tribunal to have appellate jurisdiction- Any person aggrieved

by,-

(e) an order or decision made, on or after the commencement of the

National Green Tribunal Act, 2010, by the State Government or other

authority under Section 2 of the Forest (Conservation) Act, 1980(69 of

1980);

may ,within a period……..appeal to the Tribunal:

12. A careful scrutiny of the relevant documents would make it amply clear that

the Appellant moved proposal vide letter dated 30th

March, 2010, addressed to the

Deputy Conservator of Forest, Kolhapur, for renewal of FC in respect of 34.43 ha.

The Appellant stated in the said communication that the previous FC granted for

106.76 ha would come to an end on 2.10.2011. It was for such a reason that

application for diversion of 34.43 ha forest land and renewal of the bauxite mining

F.C. including construction of feeder road, was submitted. While the proposal was

still pending with the State Government , the Appellant in the letter dated 2nd

June,

2011 requested the Deputy Conservator of Forest, Kolhapur to permit extension of

time of three months, beyond 2.10.2011, for lifting and transportation of the

mined-out bauxite minerals. The proposal was forwarded to the Conservator of

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Forests, (Territorial), Kolhapur by the Deputy Conservator of Forests with a

favourable recommendation on dated 30th

August, 2011. The Deputy Conservator

of Forests found that 78486.64 Cubic Mtrs of finished stock of bauxite was

available at the site of the mine. The Conservator of Forests (T),Kolhapur vide

communication dated 24.10.2011 forwarded the proposal along with

recommendation of the Deputy Conservator of Forests, Kolhapur to the Principal

Chief Conservator of Forests (HoFF)and Nodal Officer, Nagpur.The PCCF in his

letter dated 7.4.2012 informed the Principal Secretary(Forests) in Forest

Department, Mantralaya, Mumbai that the proposal of the Appellant be not

accepted. He gave certain reasons in support of the Report. The reasons may be

briefly enumerated as follows:-

(I) The area in question falls under the Western Ghats Region which is

highly sensitive from ecological and biodiversity point of view.

(II) The Appellant was granted similar permission in 1998 while granting

renewal of the FC. The Appellant was directed to carry out plantation over

part of the mining area. Though it has come up well in the initial stages there

is no assurance of its likely to be growing well in future with experience of

adjoining areas. By allowing the lifting and transportation of the dumps

(bauxite stock) , it will lead to soil erosion and will also have adverse

impact due to various operations involved, viz. removal of dumps by using

heavy machinery, movement of heavy vehicles for transportation of material

etc. To transport this balance material approximately 8000 trips of heavy

trucks will be needed, which is going to adversely affect the environment.

(III) The mining activity being discouraged by the Forest Department, the

proposal for mining is not being recommended.

(IV) The MoEF vide letter dated 30th

March, 2012 had constituted Committees

to identify the pristine forest areas, where any mining activity was likely to

cause irreversible damage to the forests which require conservation.

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13. It appears that the Respondent No. 1 again called for further Report of the

PCCF vide letter No. FLD 2398/PK 410F-10 dated 19th

May, 2012. By letter

dated 7th

July, 2012 the PCCF reiterated his earlier stand. The PCCF again

reported that the transportation of the bauxite stock could adversely affect the

environment in the area for which the request of the Appellant be not allowed. It

is on the basis of such report that Respondent No. 1(State Government)) rejected

the proposal of the Appellant (vide the impugned communication dated

9.10.2012).

14. It is necessary, therefore, to examine whether the impugned

communication is covered under Section 2 of the Forest (Conservation) Act,

1980.

The relevant part of Sec. 2 of the Forest (Conservation) Act, 1980 is reproduced

below:

“ Sec. 2. Restriction on the dereservation of Forests or use of forest land

for non-forest purpose :- Notwithstanding anything contained in any other law

for the time being in force in a State ,no State Government or other authority

shall make ,except with the prior approval of the Central Government ,any order

directing,

(II)that any forest land or any portion thereof may be used for any non-

forest purpose,.

Explanation - For the purposes of this section

“non-forest purpose” means breaking up or clearing of any forest land or

portion thereof for-

(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants,

horticulture crops or medicinal plants;

(b) any other purpose other than re-afforestation, but does not include…..

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15. In case the State Government decides to forward the proposal to the

Central Government, under Section 2 of the Forest (Conservation) Act, 1980, it

would be necessary to follow provision of Rule 6 of the Forest (Conservation)

Rules, 2003. There cannot be duality of opinion that the impugned communication

dated 9.10.2012 is issued only on the basis of the report of the PCCF. No other

reason is assigned in the said communication. The communication shows that the

request of the Appellant was turned down because of adverse report submitted by

the PCCF. It is also explicit that the Respondent No. 1 took more than one year

period for rejection of the proposal. According to the learned Senior Counsel Mr.

Venugopal, the reports of the PCCF are erroneous, based upon wrong perceptions

and on the basis of inaccurate conceptualization of the request made by the

Appellant. He argued that the PCCF unnecessarily mixed up the issue of mining

lease with that of the request of lifting and transportation of the mined-out bauxite.

16. Clinching question is whether the Respondent No. 1 is under legal obligation to

give reasons for rejection of the Appellant’s request. It will have to be examined

whether the Respondent No. 1 (the State) was required to forward the proposal of

the Appellant to the Central Government notwithstanding its decision rejecting the

request. In this context, it would be useful to refer to the observations of the

Hon’ble Supreme Court (9 SCC 753) in “State of Kerala and others vs. Sunil

Kumar and others” (2006). After reproducing the Section 2 of the Forest

(Conservation) Act, 1980, the Hon’ble Supreme Court observed:

“19. In the instant case, the State Government does not want to lease any part of

the forest land. Therefore, the question of seeking prior approval of the Central

Government does not arise. The High Court proceeded on the basis as if prior

approval has to be taken from the Central Government even when the State

Government does not want to lease the land in question. There is no vested right on the

applicant to seek approval. Though learned counsel for the respondent did not dispute

the position that there was no vested right in such matter, according to her, in view of

the peculiar position and the fact that the ‘applicant had deposited more than rupees

six lakhs as penalty in respect of encroached land an equitable approach is imperative.

It is pointed out that there was no direction to the Central Government to accord

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approval. It is, therefore, submitted that if the State Government seeks approval it is

open to the Central Government to deny the request for approval. On a mere technical

ground the State Government should not take the stand that in such matters approval is

not necessary or it is not required to seek approval.”

20. As rightly pointed out by learned counsel for the State, the question of approval

arises only when the State Government makes a request for such approval in respect of

cases falling under the enumerated categories in Section 3. A bare perusal of Section

of the Act makes the position clear that it has no application when the State

Government does not intend to do any of the enumerated acts. The section starts with a

non obstante clause. It deals with restriction on dereservation of forests or use of

forest land for non-forest purpose. It provides in positive terms that no order in respect

of the enumerated actions can be made except with prior approval of the Central

Government. It does not even remotely suggest that even when the State Government

does not want to take action it shall yet be required to seek prior approval.”

17. The Hon’ble Supreme Court interprets Section 2 of the Forest

(Conservation) Act, 1980 with reference to the non-obstante clause. It is held that

the question of approval arises only when the State Government makes a request for

such approval in respect of cases falling under enumerated categories in Section (2).

Obviously, when the State Government does not want to take action, it is not

necessary to forward the proposal for approval of the Central Government. In other

words, the discretion of the State Government can be exercised for the purpose of

forwarding such proposal to the Central Government. As observed by the Hon’ble

Supreme Court, there is no vested right on the Applicant to seek approval.

18. The Applicant, in the present case, is seeking a direction of the Tribunal

to the State Government to forward the proposal to the Central Government for

approval. The Appellant, impliedly, seeks recommendation for grant of the

approval to the proposal by the Central Government. The discretion of the State

Government cannot be circumvented by giving such direction. We are of the

opinion that the proposal for lifting of the bauxite and transportation thereof may

come within ambit of Section 2(ii) but without approval of the Central Government,

utilization of the forest area for such purpose is impermissible. We are further of the

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opinion that when the Appellant was aware of the fact that the F.C. was to come to

an end on 2.10.2011, the lifting of the bauxite and transportation thereof ought to

have been done within the stipulated period. The Appellant has stated on record that

there is tar road connecting the mine area for transportation of the bauxite, outside

the forest. Obviously, the reason that due to rainy season the transportation could

not be undertaken is unacceptable. What appears from the record is that the

Appellant extracted maximum stock of the bauxite from the mine during monsoon

period, with the expectation that permission could be obtained subsequently for the

purpose of lifting and transportation. Such an expectation was frustrated when the

proposal was turned down by the State Government.

19. We are not required to examine the correctness or otherwise of the reports

of the PCCF. That exercise is uncalled for. The reason being the impugned

decision is within the discretion of the State Government and the Appellant has no

legal right to insist for favourable recommendation of the proposal and forwarding

thereof to the Central Government. The question of approval of the Central

Government arises only when the State Government makes a request to the Central

Government for such purpose. Indeed, Rule 6(f) of the Forest (Conservation) Rules,

2003 would make it clear that where the proposal is not received by the Central

Government from the concerned State Government, till fifteen (15) days of the

expiry of the time limit as specified under Section 6 (3) (a), the same shall be

deemed as rejected. Thus, there is deeming effect in respect of rejection of such

proposal if the same is not received by the Central Government for approval along

with the recommendation of the State Government, within the stipulated time

period; and as such it goes without saying that the rejection could be on the basis of

default. We are of the opinion that the State Government is not under any legal

obligation to ascribe reasons in support of the decision when it decides that the

proposal be not forwarded to the Central Government. In any case, when it was not

received by the Central Government within stipulated period, it must be deemed to

have been rejected. The Judgment of this Tribunal in Appeal No. 3/2011 “( The

Sarpanch, Grampanchayat, Tiroda , Tq. Sawantwadi vs. MoEF (supra)”

is of not much help to the Appellant because it does not lay down any such ratio.

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20. On the issue of adherence to the time schedule as stipulated under Rule 6

of the Forest (Conservation) Rules 2003, the Rule permits 225 (210+15) days time

limit to the State Government for forwarding the proposal of the Project Proponent

to the Central Government along with the recommendation, if any , from the date of

receipt of the proposal from the Project Proponent. The proposal forwarded

subsequently by the State Government with its recommendation may also be

considered by the Central Government provided an explanation for such delay is

furnished to the satisfaction of the Central Government together with the action

taken against any individual held to be responsible for the delay.

21. In the instant case, the proposal was submitted by the Appellant on

2.6.2011 requesting grant of permission to lift and transport the mined-out mineral.

The time limit of 225 days for receipt of proposal with the recommendation of the

State Government by the Central Government expired on 13.01.2012. A perusal of

the record reveals that the PCCF submitted his report on 7.4.2012 ,i.e., after almost

84 days of expiry of the total time limit prescribed in the Rule.

22. Thus the proposal can be deemed as rejected on account of lapse of the

stipulated time period. Taking a stock of forgoing discussion, we find that

Respondent No. 1(State) was not bound to assign reasons in support of the

impugned decision. There is no Rule which makes it obligatory for the Respondent

No. 1 to record reasons in such a matter. No penal action was contemplated against

the Appellant and, therefore, principles of natural justice will have no Application in

the present case because the power available to the Respondent No. 1 is purely

discretionary.

23 We are of the opinion that the Appeal is without merit. We are further

of the opinion that Respondent No. 1 cannot be directed to forward the proposal of

the Appellant to the Central Government for grant of approval as the discretion of

the Respondent No. 1 cannot be substituted by passing such order. Consequently

the Appeal stands dismissed with no order as to costs. We however, deem it proper

to give following directions to the Respondent No.1.

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1. The Respondent No.1 (State) should issue necessary guidelines to streamline

the procedure for timely scrutiny and processing of such proposals, at each

level in accordance with the time limit as prescribed in Rule 6 of the Forest

(Conservation) Rules, 2003.

2. The Respondent No. 1(State) shall give specific directions to regulate internal

procedure for the purpose of avoiding delay in scrutiny and processing of

such proposal.

3. The Respondent No. 1 should also evolve the procedure for fixing liability

for the delay committed during the processing of the proposal, in order to

avoid delay in making the final decision in such matters.

………...…………….……………., JM (V. R. Kingaonkar)

..……..……….……………………., EM

(Dr. P.C. Mishra)

..……..……….……………………., EM (P.S. Rao)

……………….……………………., EM (Ranjan Chatterjee)

……………….……………………., EM (Bikram Singh Sajwan)