2024 INSC 241

Civil Appeal nos.1628-29 of 2021 Page 1 of 32

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1628 -1629 OF 2021

Noble M. Paikada … Appellant

versus

Union of India … Respondent

J U D G M E N T

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. These appeals take exception to the judgment and order

dated 28

th 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 24

th 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 14

th 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

Civil Appeal nos.1628-29 of 2021 Page 2 of 32

(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 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.”

Civil Appeal nos.1628-29 of 2021 Page 3 of 32

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

15

th 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

Civil Appeal nos.1628-29 of 2021 Page 4 of 32

maintenance, upkeep and disaster

management.

.. .. .. .. .. .. .. .. .. .. .. .. .. ..”

Though the NGT struck down a part of the second EC

notification, Appendix-IX was not touched.

4. In the Original Application subject matter of these

appeals, the challenge before the NGT was to the notification

dated 28

th 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.

Civil Appeal nos.1628-29 of 2021 Page 5 of 32

.. .. .. .. .. .. .. .. .. .. .. .. ..”

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 30

th 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

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

Civil Appeal nos.1628-29 of 2021 Page 6 of 32

& Ors. v. State of Haryana & Ors

1. 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 exempt ion 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 ite m 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

1

(2012) 4 SCC 629

Civil Appeal nos.1628-29 of 2021 Page 7 of 32

explanation thereon. Learned counsel

for the MoEFCC is also unable to provide

any justification why these aspects be not

addressed and incorporated in the

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

24

th December 2020.

8. Notice was ordered to be issued on 13

th December 2021

on the appeals. On 10

th 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 12

th

September 2023. Along with the affidavit, two documents were

also filed on record. The first document was the Office

Memorandum dated 21

st 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

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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 sub-section

(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 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

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Aroskar v. Union of India

2. She also relied upon a decision

of this Court in the case of Deepak Kumar

1. 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 Kumar

1 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

2

(2019) 15 SCC 401

Civil Appeal nos.1628-29 of 2021 Page 10 of 32

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 Kumar

1 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/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 Kumar

1. 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 8 B,

incorporated on 13

th March 2020 and amended Section 8 B,

effective from 28

th 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

Civil Appeal nos.1628-29 of 2021 Page 11 of 32

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 30

th 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 30

th 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 21

st 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 19

th November 1986. The

statement of objects and reasons of the EP Act specifically

refers to the 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

Civil Appeal nos.1628-29 of 2021 Page 12 of 32

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

Civil Appeal nos.1628-29 of 2021 Page 13 of 32

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 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

Civil Appeal nos.1628-29 of 2021 Page 14 of 32

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;

(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;

Civil Appeal nos.1628-29 of 2021 Page 15 of 32

(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

Civil Appeal nos.1628-29 of 2021 Page 16 of 32

while prohibiting or restricting the

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

Civil Appeal nos.1628-29 of 2021 Page 17 of 32

(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.

(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

Civil Appeal nos.1628-29 of 2021 Page 18 of 32

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 sub-rule (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)

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

Civil Appeal nos.1628-29 of 2021 Page 19 of 32

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

Civil Appeal nos.1628-29 of 2021 Page 20 of 32

dated 29

th 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 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 11

th 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

Civil Appeal nos.1628-29 of 2021 Page 21 of 32

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 15

th 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.

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

Civil Appeal nos.1628-29 of 2021 Page 22 of 32

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 deem s 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 28

th

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

Civil Appeal nos.1628-29 of 2021 Page 23 of 32

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, 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);

Civil Appeal nos.1628-29 of 2021 Page 24 of 32

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)

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.

Civil Appeal nos.1628-29 of 2021 Page 25 of 32

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 fo rth 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

Civil Appeal nos.1628-29 of 2021 Page 26 of 32

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

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 sub-rule (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

Civil Appeal nos.1628-29 of 2021 Page 27 of 32

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 understand the undue haste shown by the Central

Civil Appeal nos.1628-29 of 2021 Page 28 of 32

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

Appendix-IX 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

Civil Appeal nos.1628-29 of 2021 Page 29 of 32

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 30

th

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 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 21

st 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,

Civil Appeal nos.1628-29 of 2021 Page 30 of 32

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

8

th 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

Civil Appeal nos.1628-29 of 2021 Page 31 of 32

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 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 28

th March 2020 and item 6 of the amended

impugned notification dated 30

th August 2023. Accordingly, we

quash item 6 in the two notifications above.

Civil Appeal nos.1628-29 of 2021 Page 32 of 32

33. The appeals are, accordingly, partly allowed on above

terms. There will be no order as to costs.

….…………………….J.

(Abhay S. Oka)

…..…………………...J.

(Sanjay Karol)

New Delhi;

March 21, 2024.