Passing the order, the green bench of Justice A.K. Patnaik, Justice S.S. Nijjar and Justice Fakkir Mohamed Ibrahim Kalifulla rejected the central government's contention that under Section 2 of the Forest (Conservation) Act, 1980, the government alone is the regulator and no one else can be appointed so as directed in the case of Lafarge Umiam Mining Pvt Ltd.
Holding that the court did not find any force in the submission, Justice Patnaik, pronouncing the order, said: "We, therefore, direct the Union of India to appoint a regulator with offices in as many states as possible under sub-section (3) of Section 3 of the Environment (Protection) Act, 1986 as directed in the order in the case of Lafarge Umiam Mining Pvt Ltd...."
The government was also asked to file an affidavit along with the notification appointing the regulator in compliance of the court direction by March 31.
The court said that henceforth the task of processing, appraisals and approval of the projects for environmental clearance under the Sep 14, 2006, Environment Impact Assessment (EIA) notification would be done by the regulator as it could carry out independent, objective and transparent appraisal and also monitor the implementations of the conditions.
The court pointed out that the existing mechanism under the EIA notification with regard to "processing, appraisals and approval of the projects for environmental clearance is deficient in many respects".
"What is required is a regulator at the national level having its offices in all the states which can carry out an independent, objective and transparent appraisal and approval of the projects for environmental clearances and which can also monitor the implementation of the conditions laid down in the environmental clearances," it said.
Rejecting the government's contention that the apex court in its July 6, 2011, order had only suggested setting up of a regulator and there was no direction to that effect, the order said it is "therefore, not right in arguing that in the case of Lafarge Umiam Mining Pvt Ltd, this court has merely suggested that a national regulator should be appointed and has not issued any mandamus to appoint a national regulator".
The court said the July 6 order made it clear "that this court on an interpretation of Section 3(3) of the Environment (Protection) Act, 1986 has taken a view that it confers a power coupled with duty to appoint an appropriate authority in the form of a regulator at the state and at the central level for appraising projects, enforcing environmental conditions for approvals and to impose penalties on polluters...."
Accordingly the central government was directed to appoint a national regulator under the provision concerned of the act, it said.
As a caution, the court said the regulator would only operate within the area entrusted to it under the Environment Protection Act and would scrupulously refrain from exercising the powers in the domain of the central government under Section 2 of the Forest (Conservation) Act, 1980.
However, "while exercising such powers under the Environment Protection Act, it will ensure that the National Forest Policy, 1988 is duly implemented," the court said.
--IANS (Posted on 06-01-2014)