CASE BRIEF
Appellants – Orissa Mining Corporation Limited
Respondents – Ministry of Environment and Forest and Others.
Decided On: 18.04.2013
Statues Referred:
- Environment Impact Assessment Notification of 2006 – Section 12
- Forest Rights Act – Section 2(o), Section 3, Section 2, Section 6
Facts;
- Orissa Mining Corporation (OMC), approached the Supreme court seeking a writ Certiorari to quash the order passed by Ministry of Environment and Forest dated 24.08.2010, rejecting the stage II forest clearance for the diversion of 660.749 hectares of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi and Rayagada districts of Orissa and also for consequential beliefs.
- OMC urged that the above order passed had the neutralizing effect of two orders passed by Supreme Court. (Sterlite case)
- Ministry of Environment and Forest, later, considered the request of the State of Orissa on 28.02.2005 seeking for prior approval of MOEF for diversion of 660.749 ha of forest land in accordance with Section 2 of Forest Conservation Act, 1980.
- MOEF after considering the proposal of the State Government and referring to the recommendation of FAC dated 27.10.2006, agreed in principle for diversion for the forest land with certain conditions.
- MOEF then granted environmental clearance to OMC vide its proceedings dated 28.04.2009
- Four member committee was constituted headed by Dr. Naresh Saxena to study and access the impact of various right and to make a detailed investigation. Saxena committee submitted its report to MOEF on 16.08.2010.
- State government then submitted their written objection on 17.08.2010 to the Ministry of Environment and Forest on the saxena committee report.
- Violation of the provisions of Forest Rights Act, Forest Conservation Act, 1980; Environmental Protection Act, 1986 and also the impact on ecological and biodiversity values of the Niyamgiri hills upon which the Dongaria Kondh and Kutia Kondh depend.
- The primary responsibility of any ministry is to enforce the laws that have been passed by parliament.
- . The order dated 24.08.2010 was communicated by MOEF to the State of Orissa vide its letter dated 30.08.2010, the legality of those orders were the subject matter to this writ petition.
Issue
What is the egality of orders passed if it violates the law passed by the parliament or either by way violates the act passed by the parliament?
Contentions by Parties –
Appellant’s Arguments
- Appellant’s counsel referred to the judgements of Supreme Court in Vedanta and Sterlite case and submitted that those judgements are binding on the parties with regard to various questions raised and decided and also to the questions which ought to have been raised and decided.
- MOEF itself after the above, mentioned judgements had accorded Stage I clearance vide its proceedings on 11.12.2008. Consequently, there is no impediment in the MOEF granting Stage II clearance for the project.
- Stated that the reasons submitted by Saxena committee as well as FAC are untenable and have nothing to do with the Bauxite Mining Project undertaken by Orissa Mining Corporation.
- Various reasons stated by the MOEF for rejecting the Stage II clearance are unsustainable in law as well as in facts. Also the reasons stated alleging violation of Environment Protection Act, 1986 were totally unrelated to bauxite mining project.
- Learned council also submitted that Saxena Committee as well as Ministry of Environment and Forest have committed factual error in taking into account the alleged legal occupation which has no connection with regards to mining project. It is a totally independent project.
- Rejecting the Stage II clearance by Ministry of Environment and Forest was arbitrary and illegal.
Respondents Arguments:
- Various grounds stated in Saxena report as well as in the order of MOEF dated 24.08.2010, where urged before the court when Vedanta and Sterlite case were decided and it was following those judgements and the details of the same had been furnished along with the written submissions filed on 21.01.2013.
- Stage I approval was on the recommendation of FAC.
Judgement
The Supreme court bench comprising of Aftab Alam, K.S. Radhakrishnan and Ranjan Gogoi disposed of the writ petition and held the following:
- The aspect of the matter have not been placed before Gram Sabha for their active consideration. Adding to it, Gram Sabha is also free to consider all community, individual as well as cultural and religious claims which have already been received from Rayagada and Kalahandi Districts.
- Therefore, the direction to the State of Orissa to place this issue before the Gram Sabha with notice to the ministry of Tribal Affairs, Government of India and Gram Sabha would take a decision on them within three months and communicate the same to Ministry of Environment and Forest through the State Government. On the conclusion of the proceeding before the Gram Sabha, the MOEF shall take a final decision on the grant of Stage II clearance for the bauxite mining project in light of the Gram Sabha decision within two months.
- The Alumina Refinery project as well is advised to take steps to correct and rectify the alleged violations by it of the terms of environment clearance granted by Ministry of Environment and Forest.
- The proceeding of Gram Sabha was to be attended as an observer by a judicial officer of the rank of District Judge, nominated by Chief Justice of High Court of Orissa who would sign the minutes of proceedings, certifying that the proceedings os Gram Sabha took place independently and completely uninfluenced either by project components or Central or State Government.
Rule of law:
The provision of law which was under examination by Hon’ble Apex Court of India was subsequently forwarded to Gram Panchayat with provided guidelines.
Conclusion:
It can be concluded that Supreme Court through its judgement in this case established the factual disposition of matter and tactfully handed over to Gram Panchayat under its jurisdiction