B. Amit Sthalekar, J. (Member (J))

1. Heard the learned Counsel for the parties and perused the documents on record.

2. The Appeal is directed against Environmental Clearance (EC) dated 04.05.2020 granted in favour of the Respondent No. 4, M/s. OCL India Ltd., by the Respondent No. 1, Ministry of Environment, Forest and Climate Change, for expansion in production of limestone from 4.2 Million TPA to 9.5 Million TPA, 0.8 Million TPA of Dolomite and Rejects/Waste to 7.42 Million TPA along with installation of new crusher of 1600 TPH in the mine lease area of 873.057 ha. located at villages Alanda, Bihabandh, Jhagarpur, Kesramal, Raiberna, Katang, Dhauraada, Lanjiberna and Kukuda, Tehsil Rajgangpur and Kutra, Sundargarh district, Odisha.

3. It is alleged that the Environmental Clearance has been granted in contravention of the existing norms and statutory regulations pertaining to public consultation and conduct of public hearing process. It is stated that there has been non-compliance of the Terms of Reference (ToR) issued by the Ministry of Environment, Forests and Climate Change, vide letter dated 16.12.2016. There is also failure on the part of the Project Proponent to adhere to the terms regarding conduct of public hearing, assessment of impacts on wildlife, groundwater impacts and mitigation measures, effect of project on aquifers and details of species of flora and fauna likely to be affected. It is further stated that there has been failure to properly assess and put forth the impacts of the impugned project on air pollution and air quality, and improper information submitted thereto. It is stated that improper and incorrect information has been furnished in Form-1 regarding the existence of 'areas protected under international conventions, national or local legislation for their ecological, landscape, cultural or other related value', 'areas used by protected, important or sensitive species of flora or fauna for breeding, nesting, foraging, resting, over wintering, migration', and 'inland, coastal, marine or underground waters' present within 15 kilometers aerial distance of the impugned project site. It is also alleged that the authorities have been misled by the Project Proponent by carrying out mining activities outside the mining lease area in violation of the existing statutory norms and regulations.

4. The learned Counsel for the Appellants has relied on the following judgments; (1)   (2019) SCC 15 401; Hanuman Laxman Aroskar Vs. Union of India & Ors., (2) Utkarsh Mandal Vs. UIO, (3) T. Mohana Rao Vs. The Director, MoEF, (4) Appeal No. 03 of 2011; Adivasi Majdoor Kisan Ekta Sangathan Vs. Ministry of Environment and Forests, (5) Jeet Singh Kanwar and Anr. Vs. Union of India & Ors., (6) Appeal No. 09 of 2011; Samta Vs. Union of India and Ors., (7) Appeal No. 22 of 2011, Mahesh Chandulal Solanki Vs. Union of India and Ors., and (8) The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, in support of his arguments challenging the grant of Environmental Clearance to M/s. OCL India Limited. We do not wish to burden our judgment by quoting the paragraphs referred to extensively by the learned Counsel for the Appellant as the law on the subject is well established.

5. Although a number of pleas have been taken in the Appeal for assailing the Environmental Clearance granted to the Respondent No. 4, M/s. OCL India Limited, but the learned Counsel for the Appellants has confined his submissions to only one ground that opportunity of Public Hearing was not given and what was given was cursory and farcical. It is alleged that Clause 7(III)(ii)(a) of Environment Impact Assessment (EIA) Notification, 2006 provides the procedure to be followed while holding public hearing, namely, that the same shall be held at the site of the project or in close proximity thereof and in the manner prescribed in Appendix IV of the EIA Notification 2006. The Appendix IV provides that as per Clause 6.1 the attendance of all those who are present at the venue shall be noted and annexed with the final proceedings which it is alleged was not done in the present case. It is further stated that Clause 6.3 provides that a representative of the applicant shall initiate the proceedings with a presentation on the project and the Summary EIA Report which was also not done in the present case. It is further stated that Clause 6.4 provides that every person present at the venue shall be granted the opportunity to seek information or clarifications on the project from the Applicant. The summary of the public hearing proceedings accurately reflecting all the views and concerns expressed shall be recorded by the representative of the State Pollution Control Board or in the case of Union Territory by the Pollution Control Committee, as the case may be, and read over to the audience at the end of the proceedings explaining the contents in the vernacular language which was not done. It is stated that on 03.10.2018 i.e., the date of Public Hearing, villagers from the affected villages had gathered near the advertised location. On behalf of the Project Proponent Mr. Saroj Kumar Rout, Dy. Executive Director and Mr. Sunil Kumar Gupta, Executive Director of M/s. OCL India Limited, gave brief description of the enhancement of production of Lanjiberna Mines. They explained that this Public Hearing was being conducted for grant of Environmental Clearance and not for land acquisition.

6. The Appellants have further contended that the tribals had contended that they are residing in areas mentioned in Vth Schedule of the Constitution of India and as such they enjoy special protection under the provisions of Panchayat (Extension of the Schedule Areas) Act, 1996, (hereinafter referred to as ' the PESA Act 1996'). It is stated that Sub-sections 4(k) and 4(l) of the Act, 1996 envisage prior consultation with the Gram Sabhas before grant of leases etc. of minor minerals and, therefore, the tribal members insisted that there should be a Gram Sabha meeting and in view thereof public hearing was not conducted. It is alleged that thereafter Public Hearing was not held and the Members of the State Pollution Control Board, Odisha, Project Proponent and the Additional District Magistrate, Sundargarh, merely sat in a car and were given certain papers on which was recorded the names of persons who would like to submit their written suggestions/objections but no hearing was done. It is further stated that there was massive commotion and the grievance of the public were not recorded and the Public Hearing was interrupted by the villagers of various Gram Panchayats as a result of which the hearing was finally stopped.

7. Annexure-'A-6' (page no. 153 of the paper book) to the Appeal, is a letter of the Member Secretary, Odisha State Pollution Control Board, dated 19.10.2018, mentioning what happened on the date fixed i.e., on 03.10.2018 during Public Hearing. The letter mentions that Public Hearing of the proposed project of M/s. OCL India Limited, for Lanjiberna Limestone & Dolomite Mine, was conducted on 03.10.2018 at 10:30AM in front of the entry gate of the Playground of Dalmia Industrial Training Institute (DITI), Jhagarpur Gram Panchayat under Rajgangpur Tehsil of Sundargarh District, in accordance with the Ministry of Environment, Forests and Climate Change, Govt. of India, EIA Notification of 16.09.2006. Prior notice inviting comments, views, objections and suggestions from the public, in respect of the above project, was published in newspapers, namely, The Times of India' and 'Sambad' on 02.09.2018 as per EIA Notification of 14.09.2006 as amended from time to time. The Public Hearing for the proposal was earlier scheduled for 22.02.2018 and 08.08.2018 but had to be deferred on both dates due to law and order situation in the area and protest made by a group of people claiming to be on behalf of the tribals. The main demand of this group of people in the locality was that first the Gram Sabha be conducted before conducting Public Hearing for the proposal for obtaining Environmental Clearance is held. This was also communicated to the Ministry of Environment, Forests and Climate Change, Govt. of India. However, about 1250 representations were received during and before the Public Hearing held on 03.10.2018 and video recording of the Public Hearing was also made. Statement of issues raised by the public during the hearing and comments of the applicant were prepared in local language and in English; list of persons who participated in the public hearing was drawn out. The proceedings of the Public Hearing held on 03.10.2018 at 10:30 AM read as under:-

"Proceedings of Public hearing held on 03rd October, 2018 at 10.30 AM in front of the entry gate playground of Dalmia Industrial Training Institute (DITI) Jhagarpur GP under Rajgangpur Tehsil of Sundergarh district in respect of M/s. OCL India Lt, for Lanjiberna Limestone & Dolomite mine for expansion of production capacity from 4.2 MTPA Limestone and 0.08 MTPA Dolomite to 9.5 MTPA limestone and 0.08 MTPA Dolomite (17.0 MTPA Rom) over an area of 873.057 Ha. at village (s) Alanda, Bihabandh, Jhargarpur, Keshramal, Raiberna, Katang, Dhauraada, Lanjibenra and Kukuda in Tehsil Rajgangpur and Kutra, District - Sundergarh (Odisha)

The date, time and venue for conducting Public Hearing for aforesaid project was advertised in Odia Daily "Sambad" and English daily "Times of India' newspapers on 01-09-2018. (paper cuttings are enclosed as Annexure-1)

Shri Bhaskar Chandra Turuk, OAS (SAG), Additional District magistrate (ADM), Sundergarh along with Shri Hemendra nath nayak, Regional officer, Rourkela State Pollution Control Board, Odisha proceeded to the venue for conducting the Public hearing as per the scheduled date and time. However, it was observed that about 500 to 600 people equipped with traditional weapons like axe, arrow & bow, lathi, sword, locked the entrance gate & blocked the venue. They obstructed the Authorities to enter into the meeting place. Their main demand was to conduct Gram Sabha before conducting Public Hearing for Environmental Clearance. The authorities at the venue started discussion with the protesting groups ad clarified that the Gram Sabha is not required for obtaining Environmental Clearance as per EIA Notification, 2006, and amended thereafter. However, the protesting group were not agreed with our clarification and continued insisting to conduct Gram Sabha before Public hearing. Therefore the discussion with the protesting group was stopped. On the other hand, at the same time about 2000 (Two thousand) public mainly from the affected areas demanded to conduct the public hearing. They urged before the authorities that Public hearing was earlier deferred and postponed twice which were scheduled on dates i.e. on 22.02.2018 & 08.08.2018 respectively Therefore, this time the Public Hearing should be conducted for taking their views about the project. The copies of letters from the Collector, Sundergarh to the Member Secretary, SPC Board, Odisha for deferment/postponement of Public Hearing vide letter no. 98 dtd 30.02.2018 & 410 dated 14.08.2018 are enclosed as Annexure-II. Taking into consideration of demand of majority of the local affected people (local inhabitants, local people employed in OCl and its supporters) the Authority decided to conduct the Public Hearing in front of the entry gate of DITI playground which was about 20 metres away from the meeting place.

The attendance sheet of the members present in the public hearing is attached as Annexure-III. Around 30000 participants have attended the Public Hearing in front of playground of DITI gate and about 600 have put their signature in the attendance sheet. The attendance sheet is enclosed as Annexure IV. About 52 persons took part enclosed as Annexure V. During the deliberation process, time and again the local affected people were requested by the Authorities to express their views. Accordingly, police administration have also approached the protesting group to express their views. This views offered by the Participants are enclosed as Annexure VI. The Summary of participant views in English & Odis are attached as Annexure VII A & B respectively. About 1000 written memorandum were also received by the Authorities at the site in support of the proposed Public hearing from the local public. Summary of the points raised by the participants in the public Hearing in English and odiya (Vernacular language) is enclosed as Annexure VIII (A & B).

On behalf of the project proponent, Mr. Saroj Kumar Rout, Dy. Executive Director and Mr. Sunil Kumar Gupta, Executive director of M/s. OCl India Limited gave brief description of the enhancement of production of Lanjiberna mines. They clarified that this Public Hearing is being conducted for environmental Clearance and not for land acquisition. They also informed that the company is with the public since last 70 years and it will continue its supports for the development of local inhabitants. They also stated that after expansion of this mines DMF fund and revenue generation of the government will increase and this will also contribute for the development of the locality. They also assured to the public that the Company will fulfil their demands as per prevailing laws.

In this manner, the Public Hearing was going on smoothly and some people want to express their views by using loud speaker, but majority of the people wanted to submit their opinion in writing and in the meantime about 1250 written memorandum have already been received. The public hearing was about to be concluded and in the meantime the Hon'ble sitting MLA of Birmitrapur Constituency (Which is not the home constituency of the affected villages) arrived at the Public Hearing place being escorted by the Sub-Divisional Police Officer, Rajgangpur to express his views. However, instead of expressing his views, he has forcefully snatched the microphone from the Authorities and took away from the Public Hearing place and accordingly the ADM, Presiding Officer of the Public Hearing concluded and closed the Hearing.

The District Administration and SPCB odisha have received about 1250 (Twelve Hundred fifty) written memorandums on and before the date of Public Hearing. The copies of received memorandums are enclosed as Annexure-IX. The written commitments submitted by the project proponent is enclosed as Annexure X. the video recording of entire proceedings of Public Hearing in enclosed in compact disc (CD) and enclosed as Annexure XI."

8. The Respondent No. 2, Odisha State Pollution Control Board, in its affidavit dated 04.06.2021 has reiterated the contents of its letter (Annexure-A-6 (page no. 153 of the paper book). The Odisha Pollution Control Board in its letter dated 04.08.2018 addressed to the Collector & District Magistrate, Sundargarh, filed along with the affidavit, has also noted that the National Commission for Schedule Tribes had recommended to the Ministry of Environment, Forests and Climate Change, Govt. of India, that in all cases of Environmental Clearance for heavy industries to be located in Schedule-V areas, certain points including consent of Gram Sabha are required before holding Public Hearing. The stand of the Board, however, is that the Ministry of Environment, Forests and Climate Change, has not yet brought out any amendment in the EIA Notification 14.09.2006 on the recommendation of the National Commission for Schedule Tribes. The procedure prescribed in the EIA Notification of 2006, therefore, is still in force. The Board, however, had already issued public notice for conducting Public Hearing for the proposed project on 02.08.2018 and 08.08.2018 (which was subsequently postponed and held on 03.10.2018) as already noted herein above.

9. The Respondent No. 1, Ministry of Environment, Forests and Climate Change, in its affidavit dated 01.01.2021 has stated that during Public Hearing around 500 to 600 people had locked the gate and blocked the entry route for officials and were requesting for conducting of Gram Sabha. The authorities explained to them that conducting the Gram Sabha was not the procedure under the EIA Notification 2006 and thereafter the Public Hearing was held in front of the Playground Gate of Dalmia Industrial Training Institute. Around 3000 participants attended the Public Hearing and about 600 persons have put their signature in the attendance sheet, and 52 persons took part in the deliberation and expressed views in the said Public Hearing. The issues raised during Public Hearing by the local populace were with regard to;

(a) Employments to the local unemployed youths, and

(b) Social welfare activities like drinking water facility, electricity facility, and health care facility etc.

The above facts have been noted by the Expert Appraisal Committee (for short 'EAC') in its Minutes of the 9th Meeting held during October 21-22, 2019. The EAC in Annexure-VII(A) (page no. 210 of the Final Environmental Impact Assessment Report, Vol.-I), has summarized the points raised by the public during the Public Hearing held on 03.10.2018 which are being reproduced herein and read as under:-

1. Most of the public has demanded for providing employment to the local people especially to the unemployed youths in the company on priority basis.

2. Most of the public has demanded that the Company should take necessary measures to protect the environment and ensure control of pollution.

3. Most of the public has demanded for conducting Gram Sabha before conducting Public Hearing for Environment Clearance.

4. Most of the public has demanded that the company should not purchase land without the consent to landowners and without holding Gram Sabha.

5. Most of the public has demanded that the company should take necessary steps for development of community and provide facility such as education, health care facility, drinking water facility in the periphery.

10. The Committee has noted that most of the public has demanded that the company should take necessary steps for development of the community and provide facilities such as education and drinking water in the periphery. The Committee has also noted that the Project Proponent has made a commitment on the issues raised by the public during Public Hearing held on 03.10.2018. It has also been stated on behalf of the company that the company will work along with the members of the community for development and in fact a written commitment has also been given by the company (Annexure-VIII(A) (page no. 212 of the Final Environmental Impact Assessment Report, Vol.-I) which are extracted herein under:-

1. Employment opportunity to Local People: As per the written assurance submitted by the company, the proposed expansion project will generate more than 240 persons direct and additional indirect employment opportunities. They have assured that preference will be given to suitable tribal and/or local candidates. Mr. Rout has mentioned that in the mine about 85% of the total employment are from the local community.

2. Environment Protection & Pollution Control: As per the written assurance submitted by the Company, they will ensure that all environment safe guards and measures as prescribed under EMP will be adhered. He further informed that the company has planned for capital expenditure of about Rs. 200 lakhs towards Environment Management Plan and Rs. 80 lakhs towards annual recurring cost.

3. Conduct of Gram Sabha for obtaining Environmental Clearance: They have apprised that public hearing for environmental clearance conducted as per the procedure laid down under EIA Notification 2006 and amendment thereafter. There is no provision for conducting Gram Sabha prior to public hearing for obtaining Environmental Clearance as per provisions of EIA Notification 2006.

11. At this stage we may examine the provisions of the Panchayats (Extension of the Schedule Areas) Act, 1996. Clause (k) and Clause (l) of Section 4 of the Act, 1996 read as under:-

"(k) the recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory prior to grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas.

(l) the prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory for grant of concession for exploitation of minor minerals by auction."

12. Section 4(k) of the Act, 1996, provides that the recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory prior to grant of prospecting licence or mining for minor minerals in the Scheduled Areas. Section 4(l) of the Act, 1996 is also couched in a similar language and states that prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory for grant of concession for exploitation of minor minerals by auction.

13. In our opinion, Section 4(k) and Section 4(l) have to be read in consonance with other provisions of Section 4 of the Act, 1996. Section 4(e) provides that every Gram Sabha shall approve the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level. Section 4(i) of the Act, 1996 further provides that the Gram Sabha or the Panchayat at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas. The actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State level.

14. The EIA Notification dated 14.09.2006 provides for Public Hearing before Environmental Clearance can be granted to the Project Proponent for undertaking any project. The Notification further lays down the procedure and the manner in which such Public Hearing will be conducted. In such a situation, there is nothing to prevent the members of the Gram Sabha from appearing in the Public Hearing and expressing their opinions. A formal holding of a Gram Sabha is not the subject matter to be considered by the Ministry of Environment, Forests and Climate Change for purposes of grant of Environmental Clearance or to examine whether the Gram Sabha was heard or not. If there is a resolution or recommendation of the Gram Sabha, such resolution/recommendation would be binding for purposes of grant of mining leases for minor minerals in Scheduled Areas not for grant of Environmental Clearance.

15. In the present case what we find is that there was a demand during the Public Hearing for holding Gram Sabha but holding of Gram Sabh was neither within the domain of the Respondent No. 4 nor in the domain of the Ministry of Environment, Forests and Climate Change nor a mandatory requirement for purposes of grant of Environmental Clearance.

16. In the present case we also find that the Appellants claim to be residents of the village within close proximity to the impugned project. The Appellants do not claim to be members of the Gram Sabha or to be members of the Gram Sabha at the relevant point of time and, therefore, it is not open for the Appellants at this stage to raise this objection as they cannot claim to be speaking on behalf of the Gram Sabha. We have already noted that at the Public Hearing about 3000 persons participated and 600 persons have put their signatures in the attendance sheet and 52 persons participated in the deliberations and expressed their views. The Appellants have not been able to point out that the members of the Gram Sabha, at any point of time, raised an objection during the Public Hearing. The persons whose affidavits have been filed from pages 169 to 175 of the paper book, have only stated that neither they were present in the Public Hearing nor have they put their signatures. These persons have not stated whether they were the Members of the Gram Sabha at the relevant point of time. Merely because such persons did not attend the meeting would at the most place them in a minority group but the vast majority has in any case approved the project during the Public Hearing.

17. The stand of the Respondents is that there is no such requirement in the EIA Notification dated 14.09.2006 that the Gram Sabha resolution should be considered in view of the PESA Act, 1996 and there is no amendment in the EIA Notification to that effect.

18. Be that as it may, since we have already held hereinabove that there is nothing on record to show that the members of the Gram Sabha did not attend the Public Hearing and did not oppose the Project, the grant of Environmental Clearance to the Respondent No. 4 cannot be held to be invalid merely because Gram Sabha was not held.

19. We also find from the documents on record that the Lanjiberna Limestone and Dolomite area was originally leased to M/s. Bisra Stone & Limestone Company Limited (BSLC) over an area of 1002 hectares with effect from 02.05.1951. In order to fulfill the requirement of limestone for the cement plant of M/s. Orissa Cement Limited, Respondent No. 4 herein, company managed its limestone requirement from M/s. Bisra Stone & Limestone Company Limited as a sub-lessee till 28.02.1990. Subsequently, a direct mining lease was granted to OCL over an area of 893.55 hectares with effect from 01.03.1990 for 20 years i.e., from 01.03.1990 to 28.02.2010 and the mining lease was executed on 29.01.1997. The company in the meantime changed its name from Orissa Cement Ltd. to OCL India Limited with effect from 15.01.1996. The Project Proponent submitted the application for renewal of mining lease. The case of the Project Proponent is that the application for renewal of mining lease was granted by OCL India Limited and the mine was working under deemed renewal. It is also stated that in view of Section 8A of Mines and Minerals (Development and Regulation) Act, 2015 (as amended), the validity period of lease has now been extended up to 29.02.2040 over the originally granted area of 893.55 hectares vide letter dated 27.06.2016. It is also stated that the Project Proponent, Respondent No. 4, surrendered the lease area of 20.493 hectares so the lease deed for reduced area (873.057 hectares) was executed on 15.12.2017 and the lease is valid upto 29.02.2040.

20. There is nothing on record to show whether the Gram Sabha challenged the grant of lease in 2017 when the lease deed was executed. In any view of the matter grant of lease deed in 2017 has absolutely no relevance with regard to grant of Environmental Clearance by the Ministry of Environment, Forests and Climate Change, Impact Assessment Division, on 04.03.2020 and, therefore, Sections 4(k) and 4(l) of the PESA Act, 1996 have no application, so far as challenge to the grant of Environmental Clearance dated 04.03.2020 is concerned.

21. We also find that the Public Hearing was postponed on two dates, viz., 22.02.2018 and 08.08.2018 because of massive protest by persons claiming to be tribals but nevertheless Public Hearing was held on 03.10.2018 and 1250 persons' written representations were received and almost 500 to 600 people attended the Public Hearing and 52 persons presented their opinions which were noted. In such circumstances, even if 3000 people had attended the meeting it does not necessarily imply that all 3000 persons had expressed their opinions, as submitted by the learned Counsel for the Appellants and the absence of recording of opinion of 3000 persons will not vitiate the grant of Environmental Clearance on the ground that no Public Hearing was held or that the Public Hearing was farcical or a sham proceeding. It may be that a large body of persons may express a common view which is recorded. We are firmly of the view that the Public Hearing held on 03.10.2018 in the Dalmia Industrial Training Institute, was duly notified and held as per prescribed procedure and cannot, therefore, be held to be farcical or a sham Public Hearing.

22. We may further note that though in the present Appeal the Appellants have made additional headings; A. Deliberate Concealment and Submission of Misinformation in Form 1, B. Deficiencies in EIA Report, D. Mining Outside of Mining Lease Area, E. Improper Appraisal by EAC for assailing the grant of Environmental Clearance to the Project Proponent, none of these points have been argued by the learned Counsel for the Appellants nor have any adequate pleadings been made in the Appeal pointing out exactly what are those points which the EAC has not considered and, in fact, we specifically asked the learned Counsel for the Appellants what he wants to say about these headings viz., A, B, D & E, the learned Counsel submitted that he would confine his arguments only to Heading C, namely, 'Public Hearing Conducted in a Farcical Manner'. This aspect of the matter, we have already considered herein above and we find, on the facts as they stand, a Public Hearing was conducted on 03.10.2018 and whatever happened on that date has been carefully noted and considered by the EAC which we have also noted extensively herein above.

23. Therefore, on the facts as they stand, we do not find any merit in the present Appeal and the same is accordingly dismissed.

24. The I.A. No. 85/2021/EZ is also disposed of.

25. There shall be no order as to costs.