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Khaitan gets SC nod for Lafarge mining project, important guidelines laid down

Khaitan & Co has won the Supreme Court’s (SC’s) approval for French cement company Lafarge to mine limestone in the country’s north-eastern region in a landmark ruling setting the tenor for future reforms in environmental governance after last year’s ban.

Khaitan & Co litigation partner Sanjeev Kapoor instructed senior advocates F S Nariman and Jayant Bhushan for the company which had commenced mining activity in Meghalaya as a French-Spanish joint venture Lafarge Umiam Mining.

Lafarge successfully defended allegations of fraud and wilful concealment of facts while contesting the case after last year’s prohibition from mining. The company’s project involved sending limestone across the Indo-Bangladesh border on a conveyor belt as raw material for its cement plant in Bangladesh.

“This is a landmark judgement in the context of environment and mining especially for projects involving use of forest land for non-forest purposes. The judgement dwells deep into many areas which were till today were untouched by any judicial interpretation,” said Khaitan & Co in a press release.

The SC forest bench has upheld the decision of the ministry of environment and forest (MoEF) which had granted revised environmental clearance, site clearance and stage-I forest clearance to Lafarge.

The bench comprising of chief justice S H Kapadia and justices Aftab Alam and K S Radhakrishnan dismissed the petition of 21 tribal activists under Shella Action Committee opposing Lafarge’s mining activity in the forest region.

The court took into consideration the principles of economic sustainability and environmental viability while laying down significant guidelines such as appointment of a ‘National Regulator’ to appraise projects, enforce environmental conditions and to impose penalties on polluters.

“The word “development” is a relative term. One cannot assume that the tribals are not aware of principles of conservation of forest. In the present case, we are satisfied that limestone mining has been going on for centuries in the area and that it is an activity which is intertwined with the culture and the unique land holding and tenure system of the Nongtrai Village. On the facts of this case, we are satisfied with due diligence exercise undertaken by MoEF in the matter of forest diversion,” the court held.

The doctrine of proportionality, principles of sustainable development, inter-generational equity and the polluter pays principle were invoked in favour of Lafarge by the court which had reserved its judgement after hearing the case in May 2011.

The court has asked the MoEF to submit a status report on the implementation of various guidelines and reforms within six months.

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