Orders dated 4th Aug 2006
including on TWP of mining leases
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
I.A. NOS.1598-1600 IN WRIT PETITION (C) NO.202 OF 1995
T.N. GODAVARMAN THIRUMULPAD Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
Date: 04/08/2006
These matters were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE ARIJIT PASAYAT
HON'BLE MR. JUSTICE S.H. KAPADIA
UPON hearing counsel the Court made the following
O R D E R
I.A.Nos.1598-1600 in Writ Petition (C) No.202 of 1995:
Ms. Rachana Srivastava, learned counsel, accepts notice on behalf of the respondents. Reply to the applications be filed within four weeks. Two weeks' time thereafter is granted for filing rejoinder affidavit.
I.A.Nos.1601-1603 in Writ Petition (C) No.202 of 1995:
The Central Empowered Committee may examine the matter and file its report within two weeks. The interlocutory applications are adjourned for two weeks.
I.A. Nos.1485 and 1507 in W.P. (C) No.202 of 1995:
The Government of India and the National Mineral Development Corporation may file their response within two weeks. The interlocutory applications are adjourned for three weeks.
I.A. No.1574 in Writ Petition (C) No.202 of 1995:
The affidavit dated 15th June, 2006, filed by Mr. A.K. Srivastava in compliance with the orders of this Court dated 28th April, 2006, is utterly vague and does not disclose the relevant information as per the Report of the Central Empowered Committee dated 27th April, 2006, which, in turn, refers to the restoration of Gangao Dam. It was stated that first phase of the work would be executed within a period of three months, i.e., from 1st April, 2006, to 30th June, 2006, and the second phase would be executed during the period 1st July, 2006 and 30th June, 2007. The affidavit does not show whether the first phase, as proposed by the same officer, is complete or not. It does not even show whether the work has even commenced or not. Undisputedly, the damage came to the notice of the respondent in July, 2005. Under these circumstances, we direct the Principal Secretary, Irrigation, to file a detailed affidavit after verification of all relevant facts within three weeks.
I.A. Nos.827,1122,1216,1337 and 1473 in Writ Petition (C) No.202/1995I.A. No.827:
Report of the Central Empowered Committee dated 31st July,
2006, regarding non-recovery of the Net Present Value by the Ministry shall be registered as a separate interlocutory application. As prayed by Mr. A.D.N. Rao, learned counsel, Ministry of Environment and Forests is granted four weeks' time to file its response. Audit Report is taken on record.
I.A. Nos.1122, 1337 and 1473:
The interlocutory applications are adjourned.
I.A. No.1216:
This application has been worked out. It is, accordingly, disposed of.
I. A. No.1591 in Writ Petition (C) No.202 of 1995:
As requested in the letter dated 31st July, 2006, the Central Empowered Committee is granted eight weeks' time to file its Report. List the interlocutory application after receipt of the Report.
I.A.No.1535 in I.A. No.548 in W.P. (C) No.202 of 1995:
The prayer in the interlocutory application is to direct the State of
Rajasthan to continue grant of grazing permits in the Kumbalgarh Sanctuary to the right-holders and concessionists `Raika'. According to the applicants, the cause for approaching this Court is the letter dated 2nd July, 2004, sent by the Central Empowered Committee to all the Chief Secretaries, Principal Chief Conservator of Forests and Chief Wildlife Wardens, which has led to the State Government stopping the issuance of the grazing permits. We have perused the Report of the Central Empowered Committee dated 13th July, 2006. One of the suggestions made is that, in terms of the provisions of the Wildlife (Protection) Act, 1972, the concerned Chief Wildlife Warden may be asked to assess the carrying capacity of each of the wildlife sanctuary, i.e., the number and type of domestic animal which can safely be allowed to graze in the sanctuary area without adversely affecting the requirement of the herbivores in area. Further, the Chief Wildlife Warden should also provide the details of the livestock which have been immunized along with the mechanism put in place to ensure that overgrazing does not take place.Section 33 of the Wild Life (Protection) Act, 1972, vests in the Chief Wildlife Warden the authority to control, manage and maintain all sanctuaries and for that purpose within the limit of any sanctuary, he may regulate or control or prohibit, in keeping with the interest of wildlife, the grazing or movement of livestock. Immunization measures are required to be taken, as stipulated. The Chief Wildlife Warden shall submit a report as to the carrying capacity of the sanctuary in question, namely, Kumbalgarh Sanctuary, in terms of the suggestion made in Paragraph (17) of the Report of the Central Empowered Committee dated 13th July, 2006, including the details of immunization measures and the mechanism which is in place in the said sanctuary. Paragraph (17) of the Report reads as under:
"It is submitted that in terms of the provisions of the Wildlife (Protection) Act, the concerned Chief Wildlife Warden may
be asked to assess the carrying capacity of each of the wildlife sanctuary, i.e. the number and type of domestic animal which can safely be allowed to graze in the sanctuary area without adversely effecting (affecting?) the requirement of the herbivores in area. The Chief Wildlife Warden should also provide the details of the livestock which have been immunized alongwith the mechanism put in place to ensure that over grazing does not take place. After receipt of the above information, if required, appropriate directions may be issued by this Hon'ble Court for allowing grazing in the Sanctuary area."
The Report shall be submitted within three weeks. List the interlocutory application after four weeks.
I.A. Nos.1413, 1414, 1454 in I.A. No.1413, 1426,1428,1440,1439,1441,1444- 1445, 1459 and 1460 in Writ Petition (C) No.202 of 1995:
By order dated 16th September, 2005, it was, inter alia, directed that no Temporary Working Permissions or Temporary Permit or any other permission, by whatever name called, shall be granted for mining activities in the National Parks, Sanctuaries and Forest areas. It was further directed that no mining activity would continue under any Temporary Working Permit or Permission (T.W.P.), which may have been granted. This order was later relaxed on the applications filed by some of the applicants. Suggestions have been filed by the learned Amicus Curiae and the Ministry of Environment and Forests, besides the Federation of Indian Minerals Industries (FIMI) regarding the conditions, which would govern grant of T.W.P. On consideration thereof, the conditions precedent for the grant of T.W.Ps. as well as the procedure for their grant shall be as provided hereinafter. At the outset, it is clarified that T.W.Ps. shall be granted only where the following conditions are satisfied.
PRE-CONDITIONS:
i] T.W.PS. can only be granted for renewal of mining leases, and not where the lease is being granted for the first time to the applicant user agency;
ii] The mine is not located inside any National Park/Sanctuary notified under Section 18, 26-A or 35 of the Wildlife (Protection) Act, 1972;
iii] The grant of the T.W.P. would not result in any mining activity within the safety zone around such areas referred to in (ii) above, (as an interim measure, one kilometer safety zone shall be maintained subject to the orders that may be made in I.A. No.1000 regarding Jamua Ramgarh Sanctuary);
iv] The user agency who has broken up the area of the mine (in respect of which the T.W.P. is being sought) has or had the requisite environmental clearances and at no time prior to the grant of the T.W.P. was any mining being carried on by the user agency in relation to the mine in question, in violation of the provisions of the Forest (Conversation) Act [for short, "F.C. Act"]. In cases involving violation of the F.C. Act, a formal decision on merit should be taken under the F.C. Act after considering the gravity of the violation. However, the grant of a T.W.P. may be considered where past violations have been regularized by the Ministry of Environment and Forests [for short, "M.O.E.F."] by the grant of an approval under the F.C. Act with retrospective effect;
v] The conditions attached to the approval under the F.C. Act for the grant of the mining lease (or the renewal of the mining lease), have been fulfilled, particularly those in respect of (but not limited to) compensatory afforestation, reclamation plan and over burden dumping on the specified site;
vi] The user agency has, within the stipulated time, already filed a proposal in conformity with the Forest (Conversation) Rules, 1980, for seeking an approval under the F.C. Act along with the complete details as are required to be furnished. An application for the grant of the T.W.P. in favour of the user agencies, who have either not filed a proper proposal and/or have not provided complete information, particularly in respect of (but not limited to) compensatory afforestation, phased reclamation plan, felling of trees, details of minerals extracted in the past, etc., should not be entertained;
vii] A T.W.P. shall be granted only limited to working in the area broken up legally and during the validity of the lease. No T.W.P. can be granted in respect of, or extending to either unbroken area or the areas which have been broken after the expiry of the mining lease or have been broken in violation of the F.C. Act or any other law for the time being in force;
viii] In no circumstances can the duration of a T.W.P. extend beyond the period of one year. Where an application for grant of permission under the F.C. Act is not disposed of during the currency of T.W.P., the applicant, on the strength of the same T.W.P., may continue to operate for a period not exceeding three months unless specific orders are obtained from this Court.
ix] A valid lease under the M.M.R.D. Act exists (including by way of a deemed extension in terms of Rule 24-A(6) of the Mineral Concession Rules) in respect of the area of the T.W.P.
PROCEDURE FOR GRANT OF CLEARANCES UNDER THE F.C. ACT AND THE ISSUANCE OF TWPS (in relation to renewal of mining leases:
i] the user agency shall submit, in the first instance, to the State Government, proposals seeking renewal of the mining lease under the F.C. Act not less than two years prior to the expiry of the mining lease, except the leases which are due to expire before August, 2008, provided applications are made on or before 31st October, 2006;
ii] On receipt of the proposal within the stipulated time as aforesaid, and upon its examination, where the State Government is of the view that further details (besides the information submitted by the user agency in the prescribed formats) are necessary, the State Government shall give intimation thereof not later than ninety days of the receipt of the proposal;
iii] the State Government shall forward the proposal together with their recommendations to the Central Government not later than nine months after receipt of the proposal;
iv] the Central Government shall ordinarily dispose of the application for grant of permission not later than four months of its receipt; Provided where the Central Government is unable to dispose of the application within four months as aforesaid, it shall record special reasons explaining the delay;
v] Where the application for grant of permission under the F.C. Act
is delayed beyond the periods stipulated hereinabove, the user agency may then apply for the grant of a T.W.P. In such cases, the user agency will have the option of applying for a T.W.P. through the State Government in the proforma prescribed by M.O.E.F. with an advance copy both to the M.O.E.F. and the Regional Office of the M.O.E.F. Such applications shall be made at any time after the expiry of thirteen months from the date of filing of the proposal with the State Government but not later than nine months prior to the expiry of the existing approval under the F.C. Act. In cases where lease/renewal was granted prior to the enactment of the F.C. Act and the lease period has not expired, the application shall be made at least nine months prior to the expiry of lease period;
vi] the proposal seeking the T.W.P. shall be processed by the State Government and forwarded to the M.O.E.F. within a period of three months, who shall place the proposal before the F.A.C. constituted under Section 3 of the F.C. Act in its next meeting. The information/details, which have not been filed by the user agency, either in respect of the proposal under the F.C. Act or in the proposal for the T.W.P. shall also be sought by the State Government and made available by the user agency during this period;
vii] in the event of failure on the part of the State Government to send its recommendations on the proposal submitted by the user agency for grant of T.W.P. within the stipulated period, the advance copy of the application, already sent by the user agency to the Central Government, shall be placed before the F.A.C. for its consideration. The F.A.C. shall provide an opportunity to the State Government and user agency to be heard before giving its recommendations on the merits of the case.
viii] if the State Government, for reasons to be recorded in writing, recommends a refusal of the request to grant a T.W.P., the F.A.C. shall, after giving the user agency and the State an opportunity to present their views pass such orders as it thinks fit. The F.A.C. shall be at liberty to evolve a suitable procedure for this purpose;
ix] in respect of cases where no recommendation has been received from the State Government within the stipulated time, the F.A.C. shall, after giving the State an opportunity to be heard, examine the proposal on merit and pass appropriate orders. The F.A.C. should evolve a suitable procedure that shall be fair and reasonable and would ensure adherence with the time schedule;
x] All proposals for grant of F.C. Act clearances and T.W.Ps. in respect of mining leases shall be placed before the F.A.C. Where the F.A.C., by order recommends the grant of a clearance or a T.W.P., the M.O.E.F. shall, within a period of four weeks from the date of such order, issue orders for the grant of clearance on the usual terms, including those relating to payment of N.P.V.; Provided where a T.W.P. is being granted, it shall only be for a period not exceeding one year and upon payment of N.P.V. for the already broken up area;
xi] decision on grant of T.W.P. shall be taken before the expiry of the
mining lease. Decision of the M.O.E.F. on the proposal for diversion of forest land for mining lease under the F.C. Act shall be conveyed to the user agency before the expiry of the T.W.P.
xii] in case the M.O.E.F. disagrees with the recommendation of the F.A.C., it shall record its reasons in writing and communicate the same to the F.A.C., and the F.A.C. may, after considering such reasons, pass such further orders as it thinks fit; Provided where the Government still disagrees with the order passed by the F.A.C., it may seek appropriate directions from this Court;
xiii] all the orders of the F.A.C. shall be made available to the user agency and the State Government;
xiv] in cases where the recommendations have been made by the F.A.C. without ascertaining the views of the State Government, the T.W.P. shall become effective only after the details made available by the user agency are confirmed by the State Government within a maximum period of one month. In case the information furnished by the user agency is found to be at variance with the factual position, the State Government shall refer the matter back to the M.O.E.F., who may, if so advised, suspend the grant of the T.W.P.;
xv] the T.W.P. shall become effective only after the payment towards the N.P.V. for the already broken up area is deposited by the user agency;
xvi] in cases where site inspection by the Regional C.C.F. is mandatory,
the proposal for the T.W.P. shall be examined by the F.A.C. after considering the site inspection report of the Regional C.C.F.; the Regional C.C.F. shall ensure that the inspection is completed in such time as may be directed by the F.A.C.; and
xvii] at the time of payment of N.P.V. at the present rate, the user agency shall also give an undertaking to pay the additional N.P.V., if so determined as per the final decision of this Court. Those who are continuing to operate on the strength of the temporary permit under the interim protection granted by this Court, would continue, as before, for a period of not exceeding four months. We direct that their cases shall be decided by the F.A.C. within the said period of four months. The State Governments are directed to consider and send their recommendations to the M.O.E.F. forthwith, and not later than six weeks from today, with a view to ensure decision within the stipulated period of four months. To consider the question of constitution of appropriate F.A.C.,
adjourned to 25th August, 2006.
I.A.Nos.1466-1467 in Writ Petition (C) No.202 of 1995:
The learned counsel seeks leave to withdraw the interlocutory applications. They are, accordingly, dismissed as withdrawn.
I.A. No.4 in Cont. Pet. (C) No.193/2001 in W.P. (C) No.202 of 1995:
Not taken up.
Writ Petition (C) No.603 of 2000:
Not taken up
I.A. No.1614 in Appln.(s) Nos.863 and 905 in W.P. (C) No.202 of 1995:
The learned counsel appearing for the State of Gujarat, states that all the conditions recommended in the Report of the Central Empowered Committee dated 28th July, 2006, are acceptable to the State Government. In this view, permission sought for in I.A. Nos.863 and 905 is granted on the State Government complying with the conditions as under:
"i] the requisite approval under the Forest (Conservation) Act for use of the forest land will be obtained;
ii] the NPV for the forest land will be deposited in the Compensatory Afforestation Fund with an undertaking to pay additional NPV as per the decision taken by this Hon'ble Court;
iii] 5% of the project cost will be deposited in the Compensatory Afforestation Fund for undertaking conservation and protection works in the sanctuary;
iv] as recommended by the Standing Committee of the National Board for Wildlife, a ten year master plan for the revitalization of the sanctuary with focused attention and concerted efforts on wildlife conservation and management will be immediately prepared and implemented for rehabilitation of the sanctuary area. Funds for this purpose will be made available by the State Government on priority basis; and
v] no area presently falling within the sanctuary will be used for mining purposes in future. Appln. Nos.863 and 905 are disposed of accordingly.
RECORD OF PROCEEDINGS
I.A. NOS.1598-1600 IN WRIT PETITION (C) NO.202 OF 1995
T.N. GODAVARMAN THIRUMULPAD Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
Date: 04/08/2006
These matters were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE ARIJIT PASAYAT
HON'BLE MR. JUSTICE S.H. KAPADIA
UPON hearing counsel the Court made the following
O R D E R
I.A.Nos.1598-1600 in Writ Petition (C) No.202 of 1995:
Ms. Rachana Srivastava, learned counsel, accepts notice on behalf of the respondents. Reply to the applications be filed within four weeks. Two weeks' time thereafter is granted for filing rejoinder affidavit.
I.A.Nos.1601-1603 in Writ Petition (C) No.202 of 1995:
The Central Empowered Committee may examine the matter and file its report within two weeks. The interlocutory applications are adjourned for two weeks.
I.A. Nos.1485 and 1507 in W.P. (C) No.202 of 1995:
The Government of India and the National Mineral Development Corporation may file their response within two weeks. The interlocutory applications are adjourned for three weeks.
I.A. No.1574 in Writ Petition (C) No.202 of 1995:
The affidavit dated 15th June, 2006, filed by Mr. A.K. Srivastava in compliance with the orders of this Court dated 28th April, 2006, is utterly vague and does not disclose the relevant information as per the Report of the Central Empowered Committee dated 27th April, 2006, which, in turn, refers to the restoration of Gangao Dam. It was stated that first phase of the work would be executed within a period of three months, i.e., from 1st April, 2006, to 30th June, 2006, and the second phase would be executed during the period 1st July, 2006 and 30th June, 2007. The affidavit does not show whether the first phase, as proposed by the same officer, is complete or not. It does not even show whether the work has even commenced or not. Undisputedly, the damage came to the notice of the respondent in July, 2005. Under these circumstances, we direct the Principal Secretary, Irrigation, to file a detailed affidavit after verification of all relevant facts within three weeks.
I.A. Nos.827,1122,1216,1337 and 1473 in Writ Petition (C) No.202/1995I.A. No.827:
Report of the Central Empowered Committee dated 31st July,
2006, regarding non-recovery of the Net Present Value by the Ministry shall be registered as a separate interlocutory application. As prayed by Mr. A.D.N. Rao, learned counsel, Ministry of Environment and Forests is granted four weeks' time to file its response. Audit Report is taken on record.
I.A. Nos.1122, 1337 and 1473:
The interlocutory applications are adjourned.
I.A. No.1216:
This application has been worked out. It is, accordingly, disposed of.
I. A. No.1591 in Writ Petition (C) No.202 of 1995:
As requested in the letter dated 31st July, 2006, the Central Empowered Committee is granted eight weeks' time to file its Report. List the interlocutory application after receipt of the Report.
I.A.No.1535 in I.A. No.548 in W.P. (C) No.202 of 1995:
The prayer in the interlocutory application is to direct the State of
Rajasthan to continue grant of grazing permits in the Kumbalgarh Sanctuary to the right-holders and concessionists `Raika'. According to the applicants, the cause for approaching this Court is the letter dated 2nd July, 2004, sent by the Central Empowered Committee to all the Chief Secretaries, Principal Chief Conservator of Forests and Chief Wildlife Wardens, which has led to the State Government stopping the issuance of the grazing permits. We have perused the Report of the Central Empowered Committee dated 13th July, 2006. One of the suggestions made is that, in terms of the provisions of the Wildlife (Protection) Act, 1972, the concerned Chief Wildlife Warden may be asked to assess the carrying capacity of each of the wildlife sanctuary, i.e., the number and type of domestic animal which can safely be allowed to graze in the sanctuary area without adversely affecting the requirement of the herbivores in area. Further, the Chief Wildlife Warden should also provide the details of the livestock which have been immunized along with the mechanism put in place to ensure that overgrazing does not take place.Section 33 of the Wild Life (Protection) Act, 1972, vests in the Chief Wildlife Warden the authority to control, manage and maintain all sanctuaries and for that purpose within the limit of any sanctuary, he may regulate or control or prohibit, in keeping with the interest of wildlife, the grazing or movement of livestock. Immunization measures are required to be taken, as stipulated. The Chief Wildlife Warden shall submit a report as to the carrying capacity of the sanctuary in question, namely, Kumbalgarh Sanctuary, in terms of the suggestion made in Paragraph (17) of the Report of the Central Empowered Committee dated 13th July, 2006, including the details of immunization measures and the mechanism which is in place in the said sanctuary. Paragraph (17) of the Report reads as under:
"It is submitted that in terms of the provisions of the Wildlife (Protection) Act, the concerned Chief Wildlife Warden may
be asked to assess the carrying capacity of each of the wildlife sanctuary, i.e. the number and type of domestic animal which can safely be allowed to graze in the sanctuary area without adversely effecting (affecting?) the requirement of the herbivores in area. The Chief Wildlife Warden should also provide the details of the livestock which have been immunized alongwith the mechanism put in place to ensure that over grazing does not take place. After receipt of the above information, if required, appropriate directions may be issued by this Hon'ble Court for allowing grazing in the Sanctuary area."
The Report shall be submitted within three weeks. List the interlocutory application after four weeks.
I.A. Nos.1413, 1414, 1454 in I.A. No.1413, 1426,1428,1440,1439,1441,1444- 1445, 1459 and 1460 in Writ Petition (C) No.202 of 1995:
By order dated 16th September, 2005, it was, inter alia, directed that no Temporary Working Permissions or Temporary Permit or any other permission, by whatever name called, shall be granted for mining activities in the National Parks, Sanctuaries and Forest areas. It was further directed that no mining activity would continue under any Temporary Working Permit or Permission (T.W.P.), which may have been granted. This order was later relaxed on the applications filed by some of the applicants. Suggestions have been filed by the learned Amicus Curiae and the Ministry of Environment and Forests, besides the Federation of Indian Minerals Industries (FIMI) regarding the conditions, which would govern grant of T.W.P. On consideration thereof, the conditions precedent for the grant of T.W.Ps. as well as the procedure for their grant shall be as provided hereinafter. At the outset, it is clarified that T.W.Ps. shall be granted only where the following conditions are satisfied.
PRE-CONDITIONS:
i] T.W.PS. can only be granted for renewal of mining leases, and not where the lease is being granted for the first time to the applicant user agency;
ii] The mine is not located inside any National Park/Sanctuary notified under Section 18, 26-A or 35 of the Wildlife (Protection) Act, 1972;
iii] The grant of the T.W.P. would not result in any mining activity within the safety zone around such areas referred to in (ii) above, (as an interim measure, one kilometer safety zone shall be maintained subject to the orders that may be made in I.A. No.1000 regarding Jamua Ramgarh Sanctuary);
iv] The user agency who has broken up the area of the mine (in respect of which the T.W.P. is being sought) has or had the requisite environmental clearances and at no time prior to the grant of the T.W.P. was any mining being carried on by the user agency in relation to the mine in question, in violation of the provisions of the Forest (Conversation) Act [for short, "F.C. Act"]. In cases involving violation of the F.C. Act, a formal decision on merit should be taken under the F.C. Act after considering the gravity of the violation. However, the grant of a T.W.P. may be considered where past violations have been regularized by the Ministry of Environment and Forests [for short, "M.O.E.F."] by the grant of an approval under the F.C. Act with retrospective effect;
v] The conditions attached to the approval under the F.C. Act for the grant of the mining lease (or the renewal of the mining lease), have been fulfilled, particularly those in respect of (but not limited to) compensatory afforestation, reclamation plan and over burden dumping on the specified site;
vi] The user agency has, within the stipulated time, already filed a proposal in conformity with the Forest (Conversation) Rules, 1980, for seeking an approval under the F.C. Act along with the complete details as are required to be furnished. An application for the grant of the T.W.P. in favour of the user agencies, who have either not filed a proper proposal and/or have not provided complete information, particularly in respect of (but not limited to) compensatory afforestation, phased reclamation plan, felling of trees, details of minerals extracted in the past, etc., should not be entertained;
vii] A T.W.P. shall be granted only limited to working in the area broken up legally and during the validity of the lease. No T.W.P. can be granted in respect of, or extending to either unbroken area or the areas which have been broken after the expiry of the mining lease or have been broken in violation of the F.C. Act or any other law for the time being in force;
viii] In no circumstances can the duration of a T.W.P. extend beyond the period of one year. Where an application for grant of permission under the F.C. Act is not disposed of during the currency of T.W.P., the applicant, on the strength of the same T.W.P., may continue to operate for a period not exceeding three months unless specific orders are obtained from this Court.
ix] A valid lease under the M.M.R.D. Act exists (including by way of a deemed extension in terms of Rule 24-A(6) of the Mineral Concession Rules) in respect of the area of the T.W.P.
PROCEDURE FOR GRANT OF CLEARANCES UNDER THE F.C. ACT AND THE ISSUANCE OF TWPS (in relation to renewal of mining leases:
i] the user agency shall submit, in the first instance, to the State Government, proposals seeking renewal of the mining lease under the F.C. Act not less than two years prior to the expiry of the mining lease, except the leases which are due to expire before August, 2008, provided applications are made on or before 31st October, 2006;
ii] On receipt of the proposal within the stipulated time as aforesaid, and upon its examination, where the State Government is of the view that further details (besides the information submitted by the user agency in the prescribed formats) are necessary, the State Government shall give intimation thereof not later than ninety days of the receipt of the proposal;
iii] the State Government shall forward the proposal together with their recommendations to the Central Government not later than nine months after receipt of the proposal;
iv] the Central Government shall ordinarily dispose of the application for grant of permission not later than four months of its receipt; Provided where the Central Government is unable to dispose of the application within four months as aforesaid, it shall record special reasons explaining the delay;
v] Where the application for grant of permission under the F.C. Act
is delayed beyond the periods stipulated hereinabove, the user agency may then apply for the grant of a T.W.P. In such cases, the user agency will have the option of applying for a T.W.P. through the State Government in the proforma prescribed by M.O.E.F. with an advance copy both to the M.O.E.F. and the Regional Office of the M.O.E.F. Such applications shall be made at any time after the expiry of thirteen months from the date of filing of the proposal with the State Government but not later than nine months prior to the expiry of the existing approval under the F.C. Act. In cases where lease/renewal was granted prior to the enactment of the F.C. Act and the lease period has not expired, the application shall be made at least nine months prior to the expiry of lease period;
vi] the proposal seeking the T.W.P. shall be processed by the State Government and forwarded to the M.O.E.F. within a period of three months, who shall place the proposal before the F.A.C. constituted under Section 3 of the F.C. Act in its next meeting. The information/details, which have not been filed by the user agency, either in respect of the proposal under the F.C. Act or in the proposal for the T.W.P. shall also be sought by the State Government and made available by the user agency during this period;
vii] in the event of failure on the part of the State Government to send its recommendations on the proposal submitted by the user agency for grant of T.W.P. within the stipulated period, the advance copy of the application, already sent by the user agency to the Central Government, shall be placed before the F.A.C. for its consideration. The F.A.C. shall provide an opportunity to the State Government and user agency to be heard before giving its recommendations on the merits of the case.
viii] if the State Government, for reasons to be recorded in writing, recommends a refusal of the request to grant a T.W.P., the F.A.C. shall, after giving the user agency and the State an opportunity to present their views pass such orders as it thinks fit. The F.A.C. shall be at liberty to evolve a suitable procedure for this purpose;
ix] in respect of cases where no recommendation has been received from the State Government within the stipulated time, the F.A.C. shall, after giving the State an opportunity to be heard, examine the proposal on merit and pass appropriate orders. The F.A.C. should evolve a suitable procedure that shall be fair and reasonable and would ensure adherence with the time schedule;
x] All proposals for grant of F.C. Act clearances and T.W.Ps. in respect of mining leases shall be placed before the F.A.C. Where the F.A.C., by order recommends the grant of a clearance or a T.W.P., the M.O.E.F. shall, within a period of four weeks from the date of such order, issue orders for the grant of clearance on the usual terms, including those relating to payment of N.P.V.; Provided where a T.W.P. is being granted, it shall only be for a period not exceeding one year and upon payment of N.P.V. for the already broken up area;
xi] decision on grant of T.W.P. shall be taken before the expiry of the
mining lease. Decision of the M.O.E.F. on the proposal for diversion of forest land for mining lease under the F.C. Act shall be conveyed to the user agency before the expiry of the T.W.P.
xii] in case the M.O.E.F. disagrees with the recommendation of the F.A.C., it shall record its reasons in writing and communicate the same to the F.A.C., and the F.A.C. may, after considering such reasons, pass such further orders as it thinks fit; Provided where the Government still disagrees with the order passed by the F.A.C., it may seek appropriate directions from this Court;
xiii] all the orders of the F.A.C. shall be made available to the user agency and the State Government;
xiv] in cases where the recommendations have been made by the F.A.C. without ascertaining the views of the State Government, the T.W.P. shall become effective only after the details made available by the user agency are confirmed by the State Government within a maximum period of one month. In case the information furnished by the user agency is found to be at variance with the factual position, the State Government shall refer the matter back to the M.O.E.F., who may, if so advised, suspend the grant of the T.W.P.;
xv] the T.W.P. shall become effective only after the payment towards the N.P.V. for the already broken up area is deposited by the user agency;
xvi] in cases where site inspection by the Regional C.C.F. is mandatory,
the proposal for the T.W.P. shall be examined by the F.A.C. after considering the site inspection report of the Regional C.C.F.; the Regional C.C.F. shall ensure that the inspection is completed in such time as may be directed by the F.A.C.; and
xvii] at the time of payment of N.P.V. at the present rate, the user agency shall also give an undertaking to pay the additional N.P.V., if so determined as per the final decision of this Court. Those who are continuing to operate on the strength of the temporary permit under the interim protection granted by this Court, would continue, as before, for a period of not exceeding four months. We direct that their cases shall be decided by the F.A.C. within the said period of four months. The State Governments are directed to consider and send their recommendations to the M.O.E.F. forthwith, and not later than six weeks from today, with a view to ensure decision within the stipulated period of four months. To consider the question of constitution of appropriate F.A.C.,
adjourned to 25th August, 2006.
I.A.Nos.1466-1467 in Writ Petition (C) No.202 of 1995:
The learned counsel seeks leave to withdraw the interlocutory applications. They are, accordingly, dismissed as withdrawn.
I.A. No.4 in Cont. Pet. (C) No.193/2001 in W.P. (C) No.202 of 1995:
Not taken up.
Writ Petition (C) No.603 of 2000:
Not taken up
I.A. No.1614 in Appln.(s) Nos.863 and 905 in W.P. (C) No.202 of 1995:
The learned counsel appearing for the State of Gujarat, states that all the conditions recommended in the Report of the Central Empowered Committee dated 28th July, 2006, are acceptable to the State Government. In this view, permission sought for in I.A. Nos.863 and 905 is granted on the State Government complying with the conditions as under:
"i] the requisite approval under the Forest (Conservation) Act for use of the forest land will be obtained;
ii] the NPV for the forest land will be deposited in the Compensatory Afforestation Fund with an undertaking to pay additional NPV as per the decision taken by this Hon'ble Court;
iii] 5% of the project cost will be deposited in the Compensatory Afforestation Fund for undertaking conservation and protection works in the sanctuary;
iv] as recommended by the Standing Committee of the National Board for Wildlife, a ten year master plan for the revitalization of the sanctuary with focused attention and concerted efforts on wildlife conservation and management will be immediately prepared and implemented for rehabilitation of the sanctuary area. Funds for this purpose will be made available by the State Government on priority basis; and
v] no area presently falling within the sanctuary will be used for mining purposes in future. Appln. Nos.863 and 905 are disposed of accordingly.
