Kerala HC Partly Quashes Centre's 2022 Memo Extending Validity Of Clearance For Mining Projects As Violative Of Environment Protection Act
The Kerala High Court has struck down portions of a 2022 notification and subsequent clarification (Office Memorandum (O.M.)) issued by the Union Ministry of Environment, Forest and Climate Change (MoEFCC) to the extent it gives extension of validity period of Environment Clearance to mining projects.
The requirement of prior environment clearance (EC) for mining projects over 5 hectares was introduced by the 1994 EIA (Environment Impact Assessment) notification. With the 2006 notification, State Level Environment Impact Assessment Authorities (SEIAA) and the State Level Expert Appraisal Committees (SEAC) were constituted.
Subsequently, District Level Environment Impact Assessment Authorities (DEIAA) and the District Level Expert Appraisal Committees (DEAC) were constituted, and the Mines and Minerals (Development and Regulation) Amendment Act, 2015 was introduced.
Justice C. Jayachandran in his order observed:
“The impugned Ext.P8 notification dated 12.04.2022 –insofar as it is applicable to mines and mining operations as provided in clause 9(iv) - is declared ultra vires the Environment (Protection) Act, the Environment (Protection) Rules, and also, the EIA notification, 2006 and hence struck down as unconstitutional. Ext.P9 Office Memorandum is also declared illegal and ultra vires the Environment (Protection) Act, the Environment (Protection) Rules and the EIA notification, 2006, insofar as it pertains to mines and mining operations. Consequently, the 6th respondent will stand directed, by a writ of mandamus, to take action in accord with law regarding the quarrying operations of the 9th respondent, treating Ext.P20 E.C. to have expired.”
66 writ petitions were filed seeking a direction to extend the benefit of the 2022 notification read with O.M. According to the petitioner entities, the environmental clearance (EC) granted to them have a validity of 30 years instead of 5 years in view of the notification.
However in one writ petition filed by petitioner Jijo Joy challenged the constitutional validity of the notification and OM. The amicus curiae also urged that the notification and OM are illegal and liable to be struck down.
As per the 2022 notification clause 9 of the EIA Notification 2006 was amended. The unamended clause 9 said that the prior EC granted for a mining project was valid for the 'project life' as estimated by the EAC(Expert Appraisal Committee), SEIAA or DEIAA, subject to a maximum of 30 years.
However, after the 2022 amendment, the prior EC granted for the mining projects is to be valid for 'project life' as laid down in the mining plan. The term 'project life' means the 'mine life', subject to a maximum of 30 years, whichever is earlier.
No public consultation conducted
The Court held that notification was bad in law since it did not adhere to the procedure laid down under the Environment Protection Rules. The notification was issued after dispensing with the public consultation provided under Rule 5(3) of the Rules.
The Court found that the 'public interest' exemption provided under Rule 5(4) do not apply in the present case since there is no purported public interest promoted by the notification. It observed:
“The solitary reason stated in Ext.P8 notification to dispense with public notice/consultation is 'public interest'; the very terminology of the requirement stipulated in Rule 5(4)…there is absolutely no clue as to what was the paramount public interest to dispense with the requirement of a public notification calling for objections in terms of Rule 5(3)(a) of the E.P. Rules.”
Interpreting Rule 5(4), it further observed:
“Rule 5(4) is liable to be interpreted strictly, and the paramount public interest to dispense with the mandatory requirement under Rule 5(3), has to be demonstrated, ideally in the notification itself; and at any rate, from the overall facts and circumstances as culled out from the counter affidavit or the statement of the authority, which introduces the notification. It needs no emphasis that the requirement of Section 5(4) of the E.P. Rules is definitely not to merely refer the term 'public interest'. Instead, the legal requirement is to state the real and actual facts constituting such public interest, justifying dispensation of public consultation, which is otherwise mandatory. In other words, there should be a fully convincing reason to do away with the requirement of notice in terms of Rule 5(3)(a).”
No public or environmental interest
The Court found that by the notification, the task of determination of project life was taken away from the SEAC and instead given to the competent authority under the Mines and Minerals (Development and Regulation) Act (MMDR).
“In substance, it has gone into the hands of the authority under the M.M.D.R. Act, which authority cannot be considered as an expert body constituted of domain experts in the fields concerned…Shifting of such powers from the hands of the expert body to an authority under another Act, the M.M.D.R. Act, certainly works against the purpose of introduction of the EIA notification. An amendment which negates - or at least, inconsistent with - the very purpose of the EIA notification, can hardly be sustained in law. Such shifting of power from the expert body to determine the project life and consequently, the validity of the E.C. cannot be said to be an act in furtherance of the purposes of the EIA notification,” the Court remarked.
Process dispensing public notice illegal
The Court considered the Supreme Court judgment in Noble M. Paikada v UOI and opined that the facts in the said case were strikingly similar to the present case, i.e., the impugned notification in both the cases were brought in with the purpose of aligning with the amendment to the MMDR Act.
It said:
“as held by the Supreme Court, there was no tearing hurry to dispense with public consultation, when Ext.P8 notification, was introduced with the object of aligning with the period of lease, brought in by an amendment to the M.M.D.R. Act. It is noteworthy that the M.M.D.R. Act was amended in the year 2015, whereas the impugned notification is introduced only in the year 2022. If the Central Government could afford to wait for a period of 7 years, it could have waited for 3 or 4 months more, so as to comply with the mandate of Rule 5(3)(a) to (d).”
Thus, the Court found that the whole process of issuing notification dispensing with public notice is illegal and ultra vires due to non-application of mind.
Project life not defined
The Court noted that though the term 'project life' is used in the notification, it is not defined anywhere. Though the counsels for the petitioners took a contention that 'project life' is synonymous with 'life of mine' as used in the MMDR Act, the Court refused to accept the same.
The court said that the essential difference noticeable before the amended and unamended clas is that the power of the expert body constituted under EIA Notification, 2006, to estimate the 'project life' has been given a go-bye completely.
It observed:
“Thus, the mine, or life of mine, continues till exhaustion of mineable reserve; and there can be different owners during different times from the grant of first mining lease, till such exhaustion. It is, therefore, obvious that there can be different mining leases in respect of the same mine, during the life of mine… The mining plan does not contain any reference to the 'project life'. It only speaks about the life of mine. Therefore the validity period of an E.C. cannot be made equivalent to the project life, as laid down in the mining plan.”
OM is ultra vires and bad in law
The Court found three illegalities in respect of clarification memo. It found that the clarification did not refer to the Environment Protection Act or EP Rules. Moreover, the validity of all ECs which were valid as on 12.04.2022 was automatically extended for a period of 30 years.
It observed:
“The legal vice in Ext.P9 lies in its direction that all E.Cs will stand automatically extended to a period of 30 years, thus virtually supplanting the concept of project life for estimating the validity period of an E.C. Ext.P9 O.M. is thus ultravires the E.P. Act, E.P. Rules and the EIA Notification.”
Thus, the Court found the notification and clarification OM to be illegal and ultra vires in so far as it applies to mines and mining operations.
Case No: WPC (C) No.23150 of 2023 and connected cases
Case Title: C.P. Muhammed v. The Geologist and Ors. and connected cases
Citation: 2025 LiveLaw (Ker) 539
Counsel for the petitioner: Philip J. Vettickattu, Sajitha George, Neenu Bernath, K.J. Manu Raj, K. Vinaya, Jobi Jose Kondody, Mathew Kuriakose, J. Krishnakumar (Adoor), Moni George, Manu Govind, Enoch David Simon Joel, S. Sreedev, Rony Jose, Leo Lukose, Karol Mathew Sebastian Alencherry, Derick Mathai Saji, Karan Scaria Abraham, Ittoop Joy Thattil, S.K. Saju, Pranav, E. Adithyan, Latheef P.K., A.J. Riyas, Krishna Das, Saritha Thomas, Alen J. Cheruvil, Sahl Abdul Kader, Devika Warrier, N. James Koshy, T. Sanjay, Alex Abraham, Mansoor B.H., Sakeena Beegum, Jeswin P. Varghese, Shaji Thomas, Jen Jaison, Thomaskutty Sebastian, K. Babu, P.M. Ziraj, Irfan Ziraj, Vishnu P.S., Mohammed Shehin S.S., Bipin Krishnakumar, Abhijith P.A., N. Anand, Rajesh O.N., Ameer Salim, Roy Antony, Saju S. Dominic, T.P. Sajid, Shifa Latheef, K.P. Mohamed Shafi, Muhammed Haroon A.N., Hasharurahuman U., Mohemed Favas, Sreeshma B. Chandran, Beas K. Ponnappan, V.M. Krishnakumar, P.R. Reena, Winston K.V., Anu Jacob, K. Mohanakannan, A.R. Pravitha, Jacob P. Alex, Joseph P. Alex, Manu Sankar P., Amal Amir Ali, Deepu Thankan, Ummul Fida, Lakshmi Sreedhar, Lekshmi P. Nair, Vineetha Bose, Cindia S., Gayathri G., V. Harish, P. Deepak (Sr.). Rajan Vishnuraj
Counsel for the respondent: Ajith Viswanathan – GP, M.P. Sreekrishnan – SC - SEAC, Deepa Narayanan – Sr. GP, T. Naveen – SC – PCB, M.H. Hanilkumar, M. Shajina – CGC, C.N. Prakash, Shaji P.K., M. Krishnakumar, O.M. Shalina – DSGI, K. Ravi (Pariyarath), Sunu P. John, Vishnu J. – CGC, K.V. Sree Vinayakan, V. Girishkumar, K. Arjun Venugopal – CGC, H. Subhalekshmi, M.S. Kiran, Sunil J – CGC, Siju Kamalasanan – SC – Pallickal Grama Panchayat, S. Kanna – Sr. GP, Achuth Krishnan R. – CGC, U.P. Balakrishnan, T.C. Krishna, O.V. Maniprasad, Harikrishnan P., Jose Antony, S. Krishna, P. Ramakrishnan, Preethi Ramakrishnan, Pratap Abraham Varghese, Manojkumar G., Ashok Menon, K.T. Sidhiq, Vandana P. – CGC, U.K. Devidas, M.R. Sasith, Chitra Chandrasekharan, Biju Balakrishnan, C. Dinesh – CGC, Johny K. George, Athulya Martin, Ranjith Thamban (Sr.), Saurav Thampan, V. Usha Nandini
Amicus Curiae: Ramola Nayanpally