Utkarsh Mandal Vs. Union of India (UOI). Country/Territory India Type of court National - higher court Date Nov 26, 2009 Source UNEP, InforMEA Court name High Court of Delhi Judge Ajit Prakash ShahMuralidhar, S. Language English Subject Mineral resources Keyword Mining Abstract The procedural propriety of the grant of an environmental clearance to the Borga Mines to Panduranga Timblo Industrias was the issue before the High Court of Delhi in a writ petition filed by Utkarsh Mandal. The Petitioner had approached the Court after an appeal against an environment clearance granted to the renewal of a mining lease in Goa was dismissed by the NEAA. The High Court highlighted three questions to address. First, whether there was a requirement to make the Executive Summary of the EIA available at least 30 days prior to the Public Hearing; and if it is not, would that vitiate the Environmental Clearance? Second, whether the principle of natural justice was violated by the fact that the EAC (Mines) was chaired by a person who was the Director of four mining companies. Third, whether the absence of reason in a decision of an administrative decision making body vitiated the decision itself. On the first question, the Court held that for project affected persons to meaningfully participate in public hearing, they must have the full information of the pros and cons of the proposed project and the impact it is likely to have on the environment of the area. The EIA report is not in the public domain until the public hearing. Unless it is made available mandatorily, the project affected persons would have no knowledge of the environmental impact of the project. To this extent, the Court disagreed with the holding of the NEAA which held that there was no procedural infraction in making the Executive Summary available only 9 days before the Public Hearing as was the case in the present instance. However the Court held that despite the Executive Summary not being available to project affected persons 30 days before the Public Hearing, there was no need to hold the Public Hearing again as it had been attended by a number of people and 67 objections were received. On the second question, the Court noted that appointing a person who had a direct interest in the promotion of the mining industry as Chairperson of the EAC (Mines) was an unhealthy practice that would rob the EAC of its credibility since there is an obvious and direct conflict of interest. The Court further found the practice of passing several environmental clearances by the EAC on the same day as an "unsatisfactory state of affairs". According to the Court, not more than five applications should be considered in a single meeting of the EAC. The EAC before recommending a clearance to the Project had not given any reasoning as to how the objections raised by the Public were either satisfied by the project proponents response or were otherwise over-ruled by the EAC. The NEAA while considering the Appeal of the Petitioner had also observed that the EAC in its minutes 9 of the meeting had done a detailed analysis of the various technical and environmental issues but it was not apparent that the opposition to the Project had passed such a rigorous test. The NEAA propounded on the need to have reasoning recorded in the decision making process and for the MoEF to advise its Committees to record their reasons for recommendations. Despite this the NEAA decided that the absence of the reasoning in the present case did not vitiate the environmental clearance order in any manner. On the third question, the Court pointed out that the EAC was a delegate of the MoEF and the task of evaluation had been outsourced to it. Though the decision of the EAC is not binding on the MoEF, it performs a public law function as is expected to function in accordance with the same standards which the law requires the MoEF to adhere. The EIA Notification requires the EAC to undertake a detailed scrutiny of the objections raised during the public hearing and the response given to the objections by the Project Proponent. Therefore, it is necessary that the decision of the EAC to recommend a project must reflect the consideration made on the merit of the objections. It is not enough that the MoEF applies its mind to the matter. It is imperative that the body and not merely the MoEF, applies its collective mind to the objections. With regard to the issue of conditional clearances given to certain Projects, the Court advised the MoEF to review its practice of giving conditional clearances without specifying whether the conditions have to be mandatorily met before or after the commencement of the Project. Finally, the Court set aside the order of the NEAA and directed the EAC (Mines) to hear the matter afresh consider all the objections raised and conduct a site visit itself or through a sub-committee. Full text COU-156277.pdf