National Green Tribunal
Jayant Kumar vs Ministry Of Environment Forest And ... on 7 December, 2022
Item No. 09 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
(Through Physical Hearing with Hybrid VC Option)
Original Application No.142/2022
(I.A. No.68/2022)
Jayant Kumar ...Applicant
Versus
Ministry of Environment,
Forest and Climate Change & Ors. ...Respondents
Date of hearing: 07.12.2022
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER.
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER.
Applicant: Mr. Vikas Kumar Singh, Advocate (through VC).
Respondents: Mr. Ravindra Kumar Gupta, Advocate for respondent no.
1-MoEF&CC (through VC).
Mr. Pradeep Misra, Advocate for UPPCB (through VC).
Mr. Utkarsh Sharma and Mr. Sharad Chauhan, Advocates
for respondents no. 5 and 6 (through VC).
Application under Section 18 of the National Green Tribunal Act, 2010
read with Rule 8 of the National Green Tribunal (Practice & Procedure)
Rules, 2011
ORDER
1. Grievance in the present application is against grant of mining lease to respondent no.5 (M/s. Sai Ram Enterprises) and respondent no.6 (M/s. C.S. Infra-construction Ltd.) on 5.10.2020 and 06.11.2020 respectively in violation of the judgment of the Hon'ble Supreme Court in Deepak Kumar Vs. State of Haryana & Ors. (2012), 4 SCC 629 and order dated 13.09.2018 of this Tribunal in O.A. no. 186/2016 titled as Satendra Pandey Vs. MoEF&CC & Anr.
2. Vide order dated 28.02.2022 this Tribunal constituted a Joint Committee comprising of State PCB, SEIAA and District Magistrate, O. A. No. 142/2022 Jayant Kumar Vs. MoEF&CC & Ors.
-2- Sonbhadra, (Uttar Pradesh) and directed the same to submit factual and action taken report within three months. In compliance thereof Joint Committee submitted its factual and action taken report dated 30.06.2022 vide email dated 01.07.2022.
3. Vide order dated 04.08.2022, notice was ordered to be issued to the respondents. None appeared for Ministry of Environment, Forest and Climate Change (MoEF&CC) and District Magistrate, Sonbhadra. Replies on behalf of respondent no. 2-SEIAA and respondents no. 5 and 6-project proponents were filed vide emails dated 01.09.2022 and 14.07.2022, respectively.
4. Objections to the report of Joint Committee and replies (rejoinders) to the replies of respondent no. 2 and respondents no. 5 and 6 were filed by the applicant vide email dated 04.08.2022, 30.06.2022 and 02.09.2022, respectively.
5. Arguments were heard and judgment was reserved vide order dated 08.09.2022 but subsequently vide order dated 06.12.2022, the matter was ordered to be listed for further hearing in view of the detailed reasons mentioned therein.
6. It is pertinent to observe that EIA Notification dated 14.09.2006 was amended vide Notifications dated 15.01.2016, 20.01.2016 and 01.07.2016 which were challenged before this Tribunal by filing O.A. No. 186/2016 titled as Satendra Pandey vs. MoEF&CC & Anr., and connected applications. This Tribunal allowed the applications vide order dated 13.09.2018 and relevant part of the order reads as under:-
"21. Dispensing with the requirement of Public Hearing which forms a part of the Public Consultation under Stage-III of the Environmental Clearance process under EIA Notification, 2006 for areas measuring 0 to 25 ha for individual mine areas and in cluster situation where public hearing has been provided, has resulted in gross dilution of EIA Notification dated 14th September, 2006. Such dilution would, in our O. A. No. 142/2022 Jayant Kumar Vs. MoEF&CC & Ors.-3-
view, result in its misuse by unscrupulous elements and the situation would revert back to the lawless state prevailing prior to the decision in the case of Deepak Kumar (supra). Stringent measures are, therefore, necessary if the rampant exploitation of the minor minerals is to be curbed. This apparently was also the view of the Hon'ble Supreme Court in the case of Deepak Kumar (supra).
22. For all these reasons, we direct that the procedure laid down in the impugned Notification be brought in consonance and in accord with the directions passed in the case of Deepak Kumar (supra) by (i) providing for EIA, EMP and therefore, Public Consultation for all areas from 5 to 25 ha falling under Category B-2 at par with Category B-1 by SEAC/ SIEAA as well as for cluster situation wherever it is not provided; (ii) Form-1M be made more comprehensive for areas of 0 to 5 ha by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant EC by SEIAA instead of DEAC/DEIAA; (iii) if a cluster or an individual lease size exceeds 5 ha the EIA/EMP be made applicable in the process of grant of prior environmental clearance; (iv) EIA and/or EMP be prepared for the entire cluster in terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendations 6, 7 and 8 thereof; (v) revise the procedure to also incorporate procedure with respect to annual rate of replenishment and timeframe for replenishment after mining closure in an area; (vi) the MoEF&CC to prepare guidelines for calculation of the cost of restitution of damage caused to mined-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining.
23. We have permitted retention of 0-5 ha as a category keeping in view that some States grant isolated single lease of 5 ha and less not falling in cluster situation for which stringent requirements in Form-1M will serve the purpose of providing safeguards for protection of the environment and sustainable mining of minor minerals. This is particularly true in smaller and mountainous States as will also appear from condition no. 2 under "The Issues and Management of Mining in Cluster" referred to earlier in para 20 of this order.
24. It is reiterated that any attempt to split the lease area for the purpose of avoiding the applicable regulatory regime shall be viewed seriously. This in our view will be in the interest of the environment as deliberated in detail in the case of Deepak Kumar (supra) and would also satisfy the Precautionary Principle and the Principle of Sustainable Development contemplated under Section 20 of the National Green Tribunal Act, 2010.
25. The MoEF&CC shall, therefore, take appropriate steps to revise the procedure laid down in the impugned Notification dated 15th January, 2016 in terms of the above directions and observations so that it is conformity with the letter and spirit of the directions passed by the Hon'ble Supreme Court in Deepak Kumar (supra).
The applications stand disposed of."
7. The MoEF&CC issued OM No. F.No. L-11011/175/2018-IA-II(M) dated 12.12.2018, the relevant part of which reads as under:-
O. A. No. 142/2022 Jayant Kumar Vs. MoEF&CC & Ors.
-4-
" Office Memorandum
Sub: Order dated 04th September, 2018 & 13th September, 2018 passed by the Hon'ble National Green Tribunal, New Delhi in O.A. No. 173 of 2018 & O.A. No. 186 of 2016 in the matters titled "Sudarshan Das Vs. State of West Bengal & Ors." & ""Satendra Pandey Vs. Ministry of Environment Forest & Climate Change & Anr." respectively-regarding.
This is with reference to the recent order of the Hon'ble NGT dated 04th September, 2018 in the matter titled as Sudarshan Das Vs. State of West Bengal & Ors. and order dated 13th September, 2018 in the matter titled as Satendra Pandey Vs. Ministry of Environment Forest & Climate Change & Anr. Copy of the orders are enclosed herewith for ready reference.
2. The Hon'ble NGT vide order dated 13th September, 2018 (Satendra Pandey Vs. Ministry of Environment Forest & Climate Change & Anr.) has inter-alia directed as follows:-
"(i) Providing for EIA, EMP and therefore, Public Consultation for all areas from 5 to 25 ha falling member Category B-2 at par with Category B-1 by SEAC/SEIAA as well as for cluster situation wherever it is not provided.
(ii) Form-1M be made more comprehensive for areas of 0 to 5 ha by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant EC by SEIAA instead of DEAC/DEIAA;
(iii) if a cluster or an individual lease size exceeds 5 ha the EIA/EMP be made applicable in the process of grant of prior environmental clearance;
(iv) EIA and/or EMP be prepared for the entire cluster in terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendations 6, 7 and 8 thereof;
(v) revise the procedure to also incorporate procedure with respect to annual rate of replenishment and timeframe for replenishment after mining closure in an area;
(vi) The MoEF&CC to prepare guidelines for calculation of the cost of restitution of damage caused to mined-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining."
3. In view of the above, the undersigned is directed to forward the copy of the aforementioned orders for necessary compliance and inform the Ministry about the action taken. A copy of the same has been sent to the Chief Secretaries of all the States/UTs."
8. However, it appears that EIA Notification 14.09.2006 as amended vide notifications dated 15.01.2016, 20.01.2016 and 01.07.2016 was not suitably O. A. No. 142/2022 Jayant Kumar Vs. MoEF&CC & Ors.
-5- revised by the MoEF&CC which has created confusion and has also resulted in non-compliance with order dated 13.09.2018 passed by this Tribunal in Satendra Pandey (supra), as is demonstrated by the facts of the present case. Such confusion has even led to contradictory stands by the concerned authorities in different cases at different stages as demonstrated in the following paragraphs.
9. In O.A. No. 474/2019 tilted as Surender Singh Vs. MoEF&CC and Others, in the report filed by the Joint Committee it was mentioned as under:-
"VI. As per order of NGT dated 11.12.2018 a joint meeting of SEIAA and SEAC was held on 05.02.2019 and following decision was taken.
"In compliance of MoEF&CC, GOI, OM dated 12.12.2018, it is decided that all mining cases of minor minerals having 0 to 5 ha area will be appraised by UPSEIAA for Environment Clearance. All concerned project proponents will apply to UPSEIAA in Form-I with other required supporting documents on online MoEF&CC website www.environmentclearance.nic.in to process the application for grant of prior environment clearance with immediate effect till further order.
VII. The Director, Directorate Environment and Director, Geology and Mining by their orders dated 14.02.2019 requested all the District Magistrate to act as per decision taken by Joint Committee of SEIAA and SEAC on 05.02.2019 as follows (Annexure-12).
"In compliance of MoEF&CC, GOI, OM dated 12.12.2018, it is decided that all mining cases of minor minerals having 0 to 5 ha area will be appraised by UPSEIAA for Environment Clearance. All concerned project proponents will apply to UPSEIAA in Form-I with other required supporting documents on online MoEF&CC website www.environmentclearance.nic.in to process the application for grant of prior environment clearance with immediate effect till further order."
10. However, in the report of the Joint Committee filed in the present case no reference was made to the decision taken in the joint meeting of SEIAA and SEAC held on 05.02.2019 and orders dated 14.02.2019 conveyed by the Director, Directorate Environment and Director, Geology and Mining to all O. A. No. 142/2022 Jayant Kumar Vs. MoEF&CC & Ors.
-6- the District Magistrates in the State of U.P. On the other hand while referring to the provisions of the Uttar Pradesh Minor Minerals (Concession) Rules, 2021 and by completely ignoring directions given by Hon'ble Supreme Court in Deepak Kumar (supra) order dated 13.09.2018 passed by this Tribunal in Satendra Pandey (supra) and OM dated 12.12.2018 issued by MoEF&CC, it has been submitted that on 23.10.2018, the District Level Environmental Assessment Authority was legally working and the EC issued to respondents no. 5 and 6 is valid as well as in accordance with law.
11. In the present case, notice of the application was issued to MoEF&CC and District Magistrate, Sonbhadra but none appeared and no response was filed on their behalf in this case. Pursuant to information given regarding listing of this case for further hearing, Mr. Ravindra Kumar Gupta, Advocate has appeared for MoEF&CC, today.
12. No doubt, OM dated 12.12.2018 was issued by MoEF&CC for compliance with order dated 13.09.2018 passed by this Tribunal in Satendra Pandey (supra), but MoEF&CC was also thereby required to revise Notification dated 14.09.2006 as amended by notifications dated 15.01.2016, 20.01.2016 and 01.07.2016 which were challenged in that case. The notification issued in exercise of statutory powers could be revised only by issuance of another notification in exercise of such statutory powers. Office Memorandum issued in exercise of administrative powers cannot be said to be due compliance of the order for revision of the notification. Therefore, mere issuance of OM dated 12.12.2018 cannot be said to be due compliance of order dated 13.09.2018 passed by this Tribunal in Satendra Pandey (supra).
13. In view of the above, MoEF&CC is directed to file an affidavit regarding compliance by it with order dated 13.09.2018 passed by this Tribunal in O. A. No. 142/2022 Jayant Kumar Vs. MoEF&CC & Ors.
-7- Satendra Pandey (supra). In case the notification has already been revised after 12.12.2018 then copy of the revised notification be filed before this Tribunal and in case, the notification has not been revised so far then the same be revised in consonance with the orders of Hon'ble Supreme Court and the Tribunal in the matter within one month and compliance report in this regard be filed within two months by email at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF.
14. Further, this Tribunal has observed that mining leases in which environmental clearance was granted by DEIAA in view of amendment notification dated 15.01.2016 are still continuing even after passing of order dated 13.09.2018 by this Tribunal in Satendra Pandey (supra) and issuance of OM dated 12.12.2018 by MoEF&CC without any re-appraisal by SEIAA and appropriate remedial action on the basis of such re-appraisal. All such mining leases in which environmental clearance was granted by DEIAA need to be brought in consonance with the directions given by Hon'ble Supreme Court in Deepak Kumar (supra) and order dated 13.09.2018 by this Tribunal in Satendra Pandey (supra) by re-appraisal by SEIAA and only such mining leases may be continued which have been on re-appraisal granted environmental clearance by SEIAA. MoEF&CC is, therefore, directed to take appropriate steps for compliance in this regard by issuance of requisite directions in exercise of the statutory powers under the Environment (Protection) Act, 1986. For this purpose, MoEF&CC is directed to collect information regarding such mining leases in which environmental clearance was granted by DEIAA and the period of which has not yet expired and are still continuing in all the States and Union Territories and by issuing appropriate directions for compliance with directions given by Hon'ble Supreme Court in Deepak Kumar (supra) and order dated 13.09.2018 O. A. No. 142/2022 Jayant Kumar Vs. MoEF&CC & Ors.
-8- passed by this Tribunal in Satendra Pandey (supra) by re-appraisal for grant of EC by SEIAA.
15. Action taken report in this regard be filed by MoEF&CC before this Tribunal within two months by email at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF.
16. List for further consideration on 09.02.2023.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM December 07, 2022 AVT