National Green Tribunal
Gabhabhai Devabhai Chauhan vs Union Of India on 24 September, 2020
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 07 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Appeal No. 62/2018
Gabhabhai Devabhai Chauhan & Ors. Appellant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 15.09.2020
Date of uploading of order: 24.09.2020
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
ORDER
1. This appeal has been preferred against grant of Environmental Clearance (EC) by the Ministry of Environment, Forest and Climate Change (MoEF&CC) vide order dated 25.01.2018 for the project "Limestone Mine of M/s UltraTech Cement with production capacity of 2.074 Million TPA located at Villages-Kalsar, Dayal & Kotda, Taluka-
Mahuva, District Bhavnagar, State-Gujarat."
2. The appellants claim to be residents of the three villages where limestone mining will be undertaken. Case of the appellants is that on 03.06.2003, Mining Plan in question was submitted. Environment Management Plan and Progressive Mine Closure Plan were part of the Mining Plan. The same were approved in the year 2004 by the State of Gujrat. In February 2013, the State of Gujarat filed details of four Bandharas (structures for impounding or diverting water of river, stream, lake or natural collection, as defined under Section 4A of the Bombay 1 Irrigation Act, 1879) namely: Kalsar, Nikol, Malan and Samadhiyala. A letter of intent was issued by the State of Gujarat on 09.05.2015 for the lease in favour of the project proponent. The project proponent applied for Terms of Reference (ToR) in Form-I on 10.12.2015. The ToRs were accordingly issued. Notice for public hearing was issued on 13.05.2016.
The Panchayat wrote letter dated 04.06.2016 that it had not received the notice for public hearing. Public hearing was held on 15.06.2016. The project proponent has proposed three areas of mining in the vicinity, apart from Cement Manufacturing Plant, Captive Power Plant and Sea Water Desalination Plant at Mahuva Taluka, District Bhavnagar, Gujarat. The projects being interlinked, cumulative impact assessment was required to be undertaken in terms of Office Order dated 24.12.2010 issued by the MoEF&CC. EIA/EMP report was filed by the project proponent on 02.08.2016. Lease was granted by the State of Gujarat on 08.01.2017. The revised Mining Plan filed on 01.06.2017. EC was granted on 25.01.2018. The grant of EC was mechanical, without meaningful public hearing and ignoring several vital aspects.
3. The appeal was filed on 27.04.2018. After considering the rival submissions, a Bench of this Tribunal, vide order dated 07.02.2019, dismissed the appeal as barred by limitation. The matter was remanded by the Hon'ble Supreme Court for hearing on merits vide order dated 02.09.2019 in Civil Appeal No. 5186/2019. Thereafter, on 20.02.2020, the appeal was deferred as the appellant wanted 15 days' time for filing rejoinder. However, no rejoinder was filed. On the next date i.e. 18.03.2020, none appeared for the appellant and the matter was again deferred and has been listed for hearing today. As per procedure, the matter was shown in the weekly list which was issued about a week back and advance list which was issued two days back. However, during the 2 hearing, after substantial arguments had been advanced, learned Counsel for the appellant submitted that he has sent a mail yesterday at 4:30 pm for adjournment but he did not press for the same. He submitted that after completion of oral hearing, one week time may be given for filing written submissions. We accepted the said request and heard the Counsel at length with further liberty to file written submissions within one week.
4. The appellants have raised as many as 29 grounds for challenging the EC in the grounds of appeal. Many grounds are overlapping.
However, during the hearing, four points were formulated by the learned Counsel for the appellants based on the said grounds, namely:
i. Prevention of Salinity Ingress.
ii. Adverse impact on the catchment area of the wetland.
iii. Absence of cumulative impact assessment.
iv. Absence of effective public hearing.
5. Reply has been filed by the contesting parties, particularly the project proponent to which reference needs to be made. The reply deals with 16 main points which emerge from the memo of appeal. The pleadings of the parties can be captured in a tabular form giving the contention of the appellant and the reply thereto as follows:
" Sl. Contention of the appellant Response of the project No. proponent I Allegation: Form I and EIA a) It is submitted that the said Report by the Answering allegation is baseless as the Respondent does not EAC has considered the final disclose the grave problem EIA report which included a of salinity ingress which salinity study report. In order affects irrigation and water to figure out the possibilities of supply. Limestone acts as a sea water ingress/intrusion in natural sieve for the the mine lease area, detailed prevention of ingress of salinity study was carried out. salty sea water into the A copy of the salinity study ground water. The proposed report is annexed hereto and 3 Methala Bandhara to check marked as ANNEXURE R -3/2. salinity ought to have been promoted instead of the b) In response to the queries raised project since the same during the public hearing and in would give employment to writing after the public hearing 50,000 persons as opposed regarding salinity ingress, the to the project which would Answering Respondent had give employment to 120 stated that there will be no persons. insertion of saline water towards the land. It was stated that the ultimate depth of mining was above the ground water table and water table will not get intersected by the working of the mine (the same has been dealt with in para 7.2.13.2 of the final EIA Report) Mining will done in a mechanized manner and/or eco-friendly manner with the help of either surface miner and mine dozer, ripper.
rock breakers to remove the limestone rather than conventional method of mining in which blasting and drilling is done, therefore, geological structural of that area will not be disturbed and EAC after considering the above stated facts and recommended for the grant of EC.
c) Further, the contentions of the Appellant that the Limestone prevents sea water from making ingress into land is unsubstantiated and without any scientific basis. In any event the mining lease is situated at a distance of more than 500 meters away from the High Tide Line. It is reiterated that the mining operations will not intersect ground water table and therefore, the allegation of the Appellants is unfounded.
d) The Answering Respondent is not concerned with the question regarding inaction of the Government in not commencing work on Methala Bandhara for the last 30 years. The said inaction cannot, in any event, be said to be a reason to not grant EC to the project of the Answering Respondent.4
II Allegation: The project a) It is submitted that the area falls within mining lease area does not catchment area of four fall under any 'catchment bandharas, as per Rule 4 area' or 'wetland' as notified of Wetland Rules, mining by State Government or the cannot be permitted in Central Government. The four the said area. This fact Bandharas which mentioned was also not disclosed in by Appellant are Malan, EIA Report. It is Samdhiyala. Nikol, and contended that the Kalsar. Out of the aforesaid, Answering Respondent two bandharas, namely, ought to have disclosed Malan and Samadhiyala, the details of all pending does not fall within the applications for grant of buffer area of the mining mining lease in the said lease. The EIA Report areas for proper states that the Nikol appraisal of the Bandhara exists about Answering Respondent's 8.00 km in South west application for grant of direction from the mining EC. lease and the proposed mining area does not fall within the catchment area of the bandhara. (Para 1.3 of final EIA Report) Nikol Bandhara is also connected only with seasonal rivers. It is also relevant to note that the Kalsar Bandhara is very small and no river or canal is connected to the said bandhara.
b) The def inition of Wetlands as per Rule 2(g) of the "Wetlands (Conservation and Management) Rules, 2010"
categorically stipulated that the catchment areas are to be determined by the authority. It is submitted that the area where the mining lease is situated has not been notified as a catchment area by the authority.
c) Without prejudice, the Appellant has erroneously stated that 'catchment' is included in the definition of `wetlands'. As per the "Wetlands (Conservation and Management) Rules, 2017"
dated 26 September 2017 which superseded the Wetlands (Conservation and Management) Rules, 2010, wetland is defined as: "wetland" means an area of marsh, fen, peatland or water; whether natural or artificial, permanent or temporary, with water that is static or flowing, 5 fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six meters, but does not include river channels, paddy fields, human-made water bodies/tanks specifically constructed for drinking water purposes and structures specifically constructed for aquaculture, salt production, recreation and irrigation purposes."
Therefore, it is evident that the definition of wetlands does not include catchment areas.
d) It is submitted that the Answering Respondent, under the EIA Notification is required to disclose other existing or planned activities in the locality, within its knowledge, which has been done by the Answering Respondent.
III Allegation: Hard copies of a) It is submitted that aforesaid EIA Report including allegation of the Appellants summary EIA Report in is frivolous and baseless English and local language since in accordance with not made available to Clause 2.2 of Appendix 4 of Panchayat office in EIA Notification, the contravention of Clause 2.2 Answering Respondent had of Appendix IV of the EIA on 11 April 2016 submitted Notification. Panchayat has the hard copy of draft not received any intimation EIA/EMP report alongwith regarding public hearing Executive Summary in except for newspaper Gujarati and English to advertisement. Illegal GPCB, Gram Panchayat, holding of public hearing. Taluka Mahua. Copies of the Letters dated 11 April 2016 sent by the Answering Respondent to GPCB and Gram Panchayat, Taluka Mahua are annexed hereto and marked as ANNEXURE R -- 3/3. GPCB had issued notice of public hearing on 11 May 2016. A copy of the notice for public hearing is annexed hereto and marked as ANNEXURE R- 3/4.
It is submitted as per Clause 3 of Appendix IV of the EIA Notification, State Pollution Control Board has to inform the public only by way of advertisement. Accordingly, 6 the notice was published in Gujarati and English newspaper on 13 May 2016, copy of which are annexed hereto and marked as ANNEXURE R -3/5 (Colly).
b) As per Clause 2.2 of Appendix IV, EIA reports are to be arranged to be forwarded to the following authorities:
a. District Magistrate/s b. Zila Parishad or Municipal Corporation c. District Industries Office d. Concerned Regional Office of the Ministry of Environment and Forests.
In compliance of the aforesaid clause, the advertisement published in the newspaper accordingly mentions that the EIA report is available in the above said agencies. It is submitted that the Answering Respondent is in full compliance of the procedure mentioned in the EIA notification 2006.
c) It is further submitted that Gram Panchayats such as Mika Gram Panchayat, Mekol Gram Panchayat, Talli Gram Panchayat supported the project. The Answering Respondent craves leave to rely on the relevant correspondence as and when deemed necessary by this Hon'ble Tribunal. Copies of the letters of the support are annexed hereto and marked as ANNEXURE R -3/6 "COLLY".
d) Therefore, it is submitted all the conditions of Appendix IV of EIA Notification such as submission of draft EIA Report has been compiled with by the Answering Respondent.
IV Allegation: Cement plant, a) The Answering Respondent had and three mining projects are applied for Environment interlinked, therefore, there Clearance for the following must cumulative impact mining projects:
assessment of all the projects. EC of cement plant (i) Mining lease over 851.3216 and the mining project has to hectares at villages Methla, be considered together. Madhuvan, Jhanjmer, Rajapara, Relia & Gadhula, 7 Taluka Talaja, District Bhavnagar (Gujarat) with production capacity of 3.21 MTPA.
(ii) Mining lease over an area of 193.3269 hectares at Villages Talli & Bamhor, Taluka Talaja, District Bhavnagar (Gujarat) with production capacity of 0.53 MTPA.
(iii) Mining lease over an area of 632.0064 hectares at villages Kalsar, Dayal & Kotda, Taluka Mahuva, District Bhavnagar (Gujarat) with production capacity of 2.074 MTPA.
which is the only subject
matter of the present
appeal.
It is submitted that cumulative impact of all three mining leases has been considered while assessing impacts of project activities on existing physical, biological and social environment like land environment, meteorology, air environment, noise environment, water environment, soil environment, biological environment and socio-economic environment. The study area included an area of 10 km radius from the proposed mine lease boundary which included the other two mining leases as mentioned above. The cumulative impact of transportation of Limestone to the Cement plant has also been considered in EIA study. Thus, the allegations made herein by the Appellants are totally misconceived and without any basis.
V Allegation: Reserved forest a) In Terms of Reference issued is not 6.4 Km away as by MoEF&CC on 8 February mentioned in EIA report but 2016, the Answering 1 Km away Respondent was asked to indicate location of National Park, Sanctuaries, Biosphere Reserve, wildlife corridors, Tiger/Elephant Reserves, if any, within 10 Km of mine lease area. The Answering Respondent had vide its letter dated 9 March 2016 8 requested the Chief Wildlife Warden, Gandhinagar, Gujarat to authenticate the location map of the study area (10 km radius from mining lease boundary). The Chief Wildlife Warden forwarded the same to the Chief Conservator of Forest.
The Chief Conservator of Forest authenticated the location map. Copy of the Letter dated 9 March 2016 is annexed hereto and marked as ANNEXURE R -3/7.
b) The EIA/EMP Report clearly states that one reserve forest exists within the study area of the mine site. The location map duly authenticated by the Chief Conservator of Forests was also enclosed as ANNEXURE - IV with the EIA/EMP Report. It is submitted that the Answering Respondent had provided details with respect to the protected forest (Methala) being 6.4 kms away from the mining lease area as per the survey (since the toposheet for the project area is restricted due to it being near the coastal zone). However, the Appellant is referring to "reserve forest" and is therefore trying to mislead. The details of reserve forest were also provided by the Answering Respondent by way of authenticated map.
c) Further, vide Letter dated 12 September 2016, the Chief Conservator of Forest, Junagadh Forest Circle sent the aforesaid Authenticated location map to the Principal Chief Conservator of Forest and categorically stated that no National Park, Sanctuary, Biosphere Reserve, Ramsar site, Tiger/ Elephant Reserve falls within the radius of 10 kms. Copy of the Letter dated 12 September 2016 is annexed hereto and marked as Annexure R-3/8.
d) The EAC in its 11th meeting held on 24-25 October 2016 9 took note of the fact that one reserve forest was constituted within 10 Km radius of the study area. The EAC in its meeting held on 30-31 January 2017 has also taken cognizance of the fact that there exists a reserve forest within 10 Km radius study area. There is no reserve forest found in the mining project area. Copy of the summary record of 11 1 "
meeting of the EAC during 24
-- 26 October 2016 is annexed hereto and marked as ANNEXURE R -- 3/9. Copy of the summary record of 14th meeting of the EAC during 30
-- 31 January 2017 is annexed hereto and marked as ANNEXURE R -- 3/10.
e) It is submitted that no protected area, i.e. national park, sanctuary, eco sensitive zone, conservation reserve or a community reserve under the provisions of the Wildlife (Protection) Act, 1972 has been notified within 10 km radius of the mining lease area.
f) In view of the above, the Answering Respondent submits that the allegations stated hereinabove are baseless and unsubstantiated and the said allegation raised by the Appellant at the time of public hearing has been suitably responded to by the Answering Respondent and the EAC has also considered the same and only thereafter as granted EC.
VI Allegation: Concerns of a) It is submitted that the local people and allegations raised by the stakeholders not dealt Appellants are frivolous with in public hearing. and denied. On the EIA Report does not contrary the Answering address them either. Respondent state that Not a single person has during the public hearing, favoured the proposal. questions were raised by the affected parties which were responded to by the Answering Respondent.
Various queries were 10 received by GPCB, local people and various parties including Praktuti Nature Club, Protection of Environment & Public Service Committee, Kishan Sangharsh Samiti. It is submitted that with respect to the subject project, around 1900 written queries were received and all the said queries were duly answered by the Answering Respondent during the period 17 June 2016 to 18 June 2016.
Further, the issues which were raised verbally during the public hearing were also duly answered by the Project Proponent at the time of public hearing itself and all the responses are considered in the f inal EIA Report. The representations and reply letters along with postage proof are annexed hereto and marked as ANNEXURE-R-3/11.
b) The Public hearing was conducted as per the EIA Notification and issues raised during the public hearing by the local people and the comments of the Answering Respondent to such issues were addressed in EIA Report. It is further submitted that Gram Panchayats such as Mika Gram Panchayat, Mekol Gram Panchayat, Talli Gram Panchayat supported the project.
VII Allegation: Project area It is submitted that the seismic falls in seismic zone III of zone III considered as moderate zoning map of Bureau of zone. Zone V is seismically the Indian Standards. most active region, while zone II is the least. The present mining area does not fall within the danger zone or the active regions, therefore, it is permissible to mine in such areas. The EIA Report categorically states that 'the risk of earthquake at the site is minimal and so the site is safe' (Para 3.4.1 of the final EIA Report).
11VIII Allegation: Process of grant a) Section 10A (2) (c) of the Mines of EC started even in the and Minerals (Development absence of mining lease and Regulation) Act, 1957 (as granted by the State amended in 2015), provides Government. that the mining lease shall be granted subject to fulfilment of the conditions of the letter of intent within a period of two years from the date of commencement of the said Amendment Act.
It was on this basis that the mining lease was issued in favour of the Answering Respondent prior to the grant of EC. The Answering Respondent also commenced the process of obtaining EC Thus, the allegation of the Appellants that process of grant of EC started even in the absence of mining lease is incorrect and liable to be dismissed.
IX Allegation: EIA does not a. Project proponent address impact on flora wrongly stated that and fauna like: there is no forest or sanctuary in the vicinity of the project.
b. Inventory of faunal diversity shows presence of Asiatic Lion etc. c. The area has abundance of fish and birds in winter. Presence of flamingoes and oriental white ibis and black ibis is not even mentioned in Chapter IV of EIA Report.
d. In the EIA Report presence of variety of flora and fauna has been suppressed.
a. It is submitted that no protected area, i.e. national park, sanctuary, eco sensitive zone, conservation reserve or a community reserve under the provisions of the Wildlife (Protection) Act, 1972 has been notified within 10 km radius of the mining lease area, The Answering Respondent vide its letter dated 9 March 2016 requested the Chief Wildlife Warden to 12 authenticate the location map of study area (10 Km radius) from mining lease boundary. The Chief Wildlife Warden forwarded the same to the Chief Conservator of Forest. The Chief Conservator of Forest authenticated the location map showing that a National park is located 96 Km away from the mine lease area.
b. Vide letter dated 22 June 2016, the Deputy Conservator of Forest, Bhavnagar informed that Regional Forest Officer, Mahuva had conducted a
spot inspection and collected details of flora and fauna in core zone and buffer zone.
As per the spot inspection five schedule-I fauna namely Asiatic lion, Chinkara, Leopard, Wolf and Peafowl were found in the study area. Copy of the Report dated 22 June 2016 is annexed hereto and marked as ANNEXURE R -3/13.
c. The Answering Respondent therefore vide letter dated 16 July 2016 submitted a Conservation plan for Schedule-I species as per Wildlife Protection Act. 1972 alongwith budgetary allocation as required in point No.18 of the TOR. Copy of letter dated 16 July 2016 along with the Conservation Plan is annexed hereto and marked as ANNEXURE R -
3/14.
d. The EAC in its 11' meeting held on 24-25 October 2016 took note of the fact that one reserve forest was constituted within 10 Km radius of the study area. It also noted that the list of flora and fauna had been authenticated by the Forest Department. It is submitted that Bombay Natural History Society, one of the largest non-Governmental 13 Organization in India engaged in conservation and bio-diversity research has found that there are no important bird area falling within the study area. The same has been noted by the EAC in its meeting held on 24-25 October 2016.
e. The impact on flora and fauna and measures to minimise the impact is given in Chapter IV of the EIA Report. Conservation plan also prepared for the Schedule--I species with consultation with the Forest Department. The presence of Flamingoes, oriental white Ibis and black Ibis is given in the Chapter 11 of EIA report. These species are listed as Schedule IV of the Wildlife Protection Act 1972.
f. The detailed mitigation of impact on f lora and f auna has been given in Para 4.16.3 & 4.16.4 of the EIA Report as per the scientif ic methodology accepted by competent authorities. The mitigation measures given in Chapter IV of EIA report also concentrate mainly on the effect due to mining activities to the surrounding environment.
The EAC has considered the above stated facts and recommended for the grant of EC.
X Allegation: The project a) It is submitted that the area falls under CRZ I Answering Respondent, vide a letter dated 4 February 2016, had approached Institute of Remote Sensing, Anna University. Chennai for preparation of CRZ demarcation map. It is submitted that the said Institute is one of the agencies authorised by MoEF & CC for carrying out the High Tide Line ("HTL"), Low Tide Line ("LTL"), CRZ 14 demarcation and mapping in a project area.
b) Following the CRZ Regulation Guidelines 2011, the Institute examined the proposed mining area and inter alia, vide its report dated 1 September 2016, copy of which is annexed hereto and marked as ANNEXURE R -3/15, concluded that except 27.6717 hectares [276716 M 2 ] rest of the proposed mining area falls away from Arabian sea (Gulf of Khambhat).
c) The Answering Respondent, vide its letter dated 12 September 2016, copy of which is annexed hereto and marked as ANNEXURE R-3/16, brought the aforesaid report to the notice of the Government of Gujarat, Industries and Mines Department and requested the Government to issue the grant order for mining lease after deducting the area falling under CRZ.
d) In the 11' meeting of the EAC held on 24-25 October 2016, it was recorded that the Answering Respondent has reported that 27.6717 hectares of the proposed project f alls within CRZ-III zone as per the report of the Institute of Remote Sensing. It was recorded that the composite block covering an area of 38.4762 hectares will be excluded from total mining lease area of 670.4826 hectares during mining lease execution as per Condition No.4 of the Letter of Intent dated 4 June 2001 and 9 July 2015. It is submitted that as per the aforesaid report, the area which fell under CRZ was about less than 5% of the proposed mining lease area. It was also recorded that the said issue was raised 15 during the public hearing conducted on 15 June 2016 and an action plan with respect to the same has been prepared and submitted. The EAC deliberated at length the information submitted by the Answering Respondent and deferred the proposal for submission of certain information regarding rehabilitation, details of trees species etc. The EAC accepted the report of the Institute of Remote Sensing and the conclusion that to the exclusion of the area found to be falling under CRZ-Ill, there is no question of the mining area falling under CRZ.
It is submitted that even in the Environmental Clearance dated 25 June 2018, it has been recorded that the Answering Respondent itself reported that 27.6717 hectares of the proposed project falls within CRZ-III zone and that the composite block of 38.4762 hectares will be excluded from the mining lease.
e) On 8 January 2017, the Government of Gujarat issued the grant order for the mining lease over 632.0064 hectares after reducing the area found to be under CRZ, a copy of which is annexed hereto and marked as ANNEXURE R / -3/17.
f) On 11 January 2017, the Deed for grant of mining lease, was executed over an area of 632.0064 hectares, copy of which is annexed hereto and marked as ANNEXURE R-
3/18.
g) In the EAC meeting held on 30-31 January 2017, the Committee noted that the proposal was earlier considered for mining lease area of 670.4826 hectares 16 and in view of the reduction of the lease area to 632.0064 hectares, the Answering Respondent should submit a revised mining plan and therefore, deferred the proposal.
h) The revised mining plan submitted by the Answering Respondent was approved by Indian Bureau of Mines on 1 June 2017. The Answering Respondent submitted the revised approved mining plan to MoEF & CC on 12 June 2017 by hand, copy of the letter dated 12 June 2017 alongwith approval letter dated 1 June 2017 are annexed hereto and marked as ANNEXURE R- 3/19 (LOLLY). On 22 June 2017, submission of the same was made online.
i) In view of the above, the proposal was considered in the EAC meeting held on 24 July 2017 where the Committee examined the information submitted by the Answering Respondent and recommended grant of Environment Clearance for mining of 2.074 Million TPA of limestone over mining lease area of 632.0064 hectares subject to the following conditions:
i. The answering respondent shall ensure rehabilitation of 147 families and provide a house with a total expenditure of 12.25 crores.
ii. The Answering Respondent shall help interested PAFs for purchase of alternate agricultural land.
iii. Trees species tolerant to the climate conditions and preferably fruit tree species to be used the greenbelt plantation.
iv. Adequate routes in the mine area for local people to 17 access the sea, needs to be provided.
The Committee was also of the opinion that a fresh public hearing is not needed as the area was reduced by about 5% of the total land involved. Copy of the minutes of the EAC meeting held on 24 July 2017 has been annexed in the appeal filed by the Appellant as ANNEXURE --
A -- 6 (Page 373 to 378).
In light of what has been stated hereinabove it is submitted that the contentions of the Appellant that the project area falls under CRZ I and the same has not been stated in the EIA report is unsubstantiated and baseless.
XI Allegation: No clarification or studies submitted by the a) The Answering Respondent project proponent with submitted all the information respect to the / clarification as sought by information sought by the Respondent No. 1, vide EAC in 24/25 October letter No. 2016 meeting i.e. details UTCL/GCW/KLM/2016- regarding R&R, tree 17/151 dated 10 November species to be used in the 2016 and based on which greenbelt plantation, EAC reconsidered the methodology for mercury proposal. Therefore, the said pollution survey, allegation is completely methodology for baseless. Copy of the letter tuberculosis dated 10 November 2016 is surveillance, adequate annexed hereto and marked routes for local people to as ANNEXURE R-3/20.
access the sea. In meeting of the EAC dated 23/25 November 2016, proposal was deferred on the ground that written complaints have been received by local people but the same have been ignored.
XII Even though mining plan a) It is submitted that the aforesaid revised no fresh public issue was deliberated by the EAC hearing took place. in its meeting held on 24 July 2017.
The EAC was of the opinion that a fresh public hearing was not required as area was reduced by less than 5% of the total land involved. It is submitted that all concerns raised by all stakeholders during the public hearing conducted on 15 June 2016 was duly 18 addressed by the Answering Respondent earlier. No new concerns could have been raised if a fresh public hearing was to be conducted since the mining area was not increased but was only decreased by a small percentage. The Appellants have failed to show that any prejudice was caused to them and therefore, the decision of the EAC on 24 July 2017 to not conduct a fresh public hearing does not vitiate the EC granted to the Answering Respondent.
XIII Consent should be a) Rule 22 (1) of the Mineral taken from all Concession Rules, 1960 provides landowners as per that an application for grant of provisions of Mineral mining lease in respect of land in Concession Rules, 1960 which minerals vest in the and MMDR Act, 1957. Government shall be made to the No information about State Government in Form I. Sub- the consent has been rule (3) (h) further states that furnished. applicant may furnish consent of the owner for starting mining operations in the area or a part thereof after execution of the lease deed but before entry into the said area. Therefore, such consent from landowners is required to be furnished only before entry in the area and the same is not a requirement for grant of EC.
b) Further, it is a fact that mining is carried out in phases, hence in general practice, the entire mining area, if not owned, is not be purchased at one time or used for mining. Therefore, consent may be obtained in phases as well.
c) It is therefore submitted obtaining consent for conducting mining operations to the process of grant of EC. The EIA Notification 2006 does not prescribe that consent is to be obtained prior to grant of the EC.
XIV Condition of EC states a) It is submitted that the mining that in case of water project will not affect any natural scarcity, PP will provide water bodies or the ground water water to villagers. This table (Para 7.2.13.2 of final EIA condition is strange Report). The water collected in the since it is asserted that mining area is collected through ground water will not be garland drains and stored in the disturbed. mining sump. The rain-water harvested will be utilized for plantation, dust suppression. and if required will be supplied to the villagers. No adverse conclusion against the Answering Respondent can be drawn from the said 19 condition which has been added only by way of abundant caution and in fact benefits the villagers. XV Baseline data stated in a) Due to constraint of time.
the EIA Report as well baseline studies were carried out as EC was collected immediately after the date of during December 2015 application for EC. It is submitted to February 2016 that no such notification or whereas ToR was issued guidelines state that baseline on 8.2.2016. No other studies are to be carried out after period in which study is TOR only. It is submitted that no conducted. This is in such notification or guidelines state violation of EIA that baseline studies are to be Notification 2006. carried out after TOR only.
In fact, the notification dated 10 April 2015 bearing No. S.O. 996(E) issued by MoEF & CC clearly states that the standard TOR shall enable the Project Proponent to commence preparation of an Environment Impact Assessment Report after successful online submission and registration of the application. Copy of the notification dated 10 April 2015 is annexed hereto and marked as ANNEXURE R-3/21. XVI Cultivable land will be a) It is submitted that Answering ruined. Respondent had noted that the Table 3.1 of the Final EIA Report, it was submitted that land use pattern based on satellite image of 10 km radius study showed that crop land comprised of only 29.57%. Therefore, there can be said to be no significant cultivable land which would be required.
b) The EIA Report notes the following protection measures to be carried out to increase the productivity of the area.
i) Awareness for new
methodologies of the
agricultural practices viz.
mixed farming, crop rotation and agricultural cropping pattern suitable for the lease area.
ii) Providing seeds, manure and fertilizers from different sources.
XVII EC granted in absence of a) It is submitted that in the 11' R&R plan. Loss of meeting of EAC held on 24-25 livelihood of people. October 2016, EAC had called upon the Answering Respondent to provide the details with respect to project affected people in respect of purchase of alternate agricultural 20 land at lower cost in and around nearby villages for livelihood as part of rehabilitation and resettlement.
In August 2016, the Answering Respondent submitted a detailed action plan for rehabilitation and resettlement, copy of which is annexed hereto and marked as ANNEXURE R -3/22. Therefore, it is denied that the EC was granted in absence of R & R plan
b) For the said action plan reconnaissance of the entire area was undertaken. Secondary source such as District Gazetteer and District Census Handbook of the project districts were reviewed. Topographical survey map was used to identify land likely to be affected. Census and socio- economic survey were conducted.
c) It was stated in the EIA Report that the landowners will be compensated and all other benefits as per the Rehabilitation and Re- settlement plan will be provided.
d) It is further provided in the final EIA Report by the Answering Respondent that the compensation is fixed as per the calculation according to R&R Gujarat State Policy and New Land Acquisition Act, 2013 considering the market price, cost of resettlement, and alternate income generation of affected families holding agricultural land. It is submitted that in the rehabilitation and resettlement plan, based on social and economic survey, apart from the compensation provided to the private landowners. The Answering Respondent will give preference to the local people for employment for the proposed project as set out in the EIA/EMP Report. Apart from direct employment, indirect employment will also be generated and trainings including vocational training, skill development etc. will be provided.
e) The Answering Respondent has specifically mentioned in the EIA Report that it will also undertake activities for upliftment of the social 21 community by providing infrastructure for education, promoting vocational training and skill and promotion for adult education programme. The R&R plan also provides for a plan for income restoration and inter alia, provides that to restore and enhance the economic condition of the affected families, certain income generation and income restoration programmes will be initiated like organizing vocational training, entrepreneur development programmes including women members and providing advice for starting suitable small-scale industry. Dairy, pottery, handicraft etc. have been identified as viable rehabilitation option. A grievance redressal system is also provided for in the R&R plan and it is provided that reports documenting progress on resettlement implementation would be submitted by the Project Management Cell to the Answering Respondent. Therefore, it is submitted that enough safeguards have been provided for in the EIA Report and "
specific conditions have been imposed in the EC to address the concerns of the project affected families.
6. We have heard learned counsel for the appellant and the project proponent at length. They have mainly repeated the submissions advanced in the pleadings. We have also perused the written submissions filed on behalf of the appellant after conclusion of the oral hearing. In the written submissions, it has been submitted that EIA study was conducted before the ToR was issued. Mining area with captive plant has been processed without cumulative impact assessment.
There is misrepresentation with regard to eco-sensitivity of the area.
Mining is in the catchment areas of the check dams set up to prevent salinity ingress. The area is fragile land on which mining can be only with the permission of the farmers. In Form-I, material facts have been 22 concealed. Public hearing is not as per norms. Gujarat High Court has already appointed an Expert Committee to examine the impact of the project on the ecology. Reply filed by the MoEF&CC is cryptic. A list of judgments has also been filed as follows:
"1. Tata Housing Development Company Ltd. Vs. Aalok Jagga and Others, 2019 SCC OnLine SC 1419
2. Keystone Realators Pvt. Ltd. Vs. Anil V. Tharthare & Ors. , 2020(2) SCC 66
3. Rajendra Shankar Shukla Vs. State of Chhatisgarh & Ors, (2015) 10 SCC 400
4. N. D. Jayal Vs. UOI, 2004(9) SCC 362
5. Raja Veligoti Venkata Sesha Varada Raja Gopalkrishna Yachendra Vs. UOI, AIR 2004 AP 179
6. Pallava Granites Industrial Pvt. Ltd. Vs. Govt. of Ap & Ors., 1997 (4) SCC 559
7. Thressiamma Jacob & Ors Vs. Geologist, Dept.of Mining & Ors, 2013 (9) SCC 725
8. Hanuman Laxman Aroskar Vs. UOI, 2019 (15) SCC 401
9. Bhanwarlal Vs. State of Rajasthan & Ors., 2017 SCC OnLine NGT 509
10. Nanga Ram Dangi Vs. Secretary, Department of Environment & Forests and Others, 2018 SCC OnLine NGT 2353
11. A.P. Pollution Control Board Vs Prof.M.V. Nayudu (Retd.) & Ors.
1999 (2) SCC 718
12. A.P. Pollution Control Board II Vs Prof.M.V. Nayudu (Retd.) & Ors.
2001 (2) SCC 62
13. Jitendra Singh Vs. Ministry of Environment & Others, 2019 SCC OnLine SC 1510
14. Shailesh R. Shah Vs. State of Gujarat and Ors., (2002) 43 (3) GLR 2295
15. Utkarsh Mandal Vs. UOI, 2009 SCC OnLine Del 3836
16. T. Mohana Rao Vs. The Director, MOEF & Ors. 2012 SCC OnLine NGT 40"
We have considered the submissions. The points raised are also by and large reproduction of the pleadings.
7. We may now proceed to deal with the four main questions framed in Para 4 above. The rival contentions have already been reproduced above.
Prevention of Salinity Ingress 23
8. As already noted, plea of the appellants is that there is no study how salinity ingress will be checked and if not checked, the project will cause damage to the environment. Saline water will enter the mined areas. On the other hand, the stand of the project proponent is that detailed salinity study has undertaken which has been produced as Annexure R-3/2 concluding as follows:
"Based on the above discussion, it may be concluded that major part of all three limestone mines are not affected from direct sea water ingress. Southern portion of Limestone Mine-2 south and eastern part of Nicha Kotda lying close to Methla creek is supposed to be affected by Sea water intrusion. Similarly, western most part of Limestone Mine-3 near village Methla shall be affected by back water effect of Methla creek. However, no impact has been envisaged on Limestone Mine-1.
Moreover, no further sea water ingress is expected be take place due to mining activities, as groundwater shall not be affected by mining activities at any stage of project development as well as groundwater development in the main land is within SAFE category as per the detailed hydro- geological assessment carried out in buffer zone area.
It is necessary to establish a monitoring network system by sinking new piezometers and measuring the groundwater levels periodically along with chemical and isotopic analysis of water samples for studying the movement of sea water towards land.
Another method to prevent sea water intrusion is to minimize the groundwater exploitation. This could be done through surface runoff utilization/rainwater harvesting by constructing check dams/anicuts on small streams at suitable locations to raise groundwater levels."
9. Apart from the said study, Environment Impact Assessment (EIA) report also includes salinity study. The said EIA report is Annexure R-
3/1 on record.
10. The said material was duly available before the Expert Appraisal Committee (EAC) as specifically mentioned in the impugned order in para
3. It has been noted that salinity ingress due to the project is not envisaged. Moreover, in the EIA report, Annexure 3/1 in para 4.5 impact 24 on water environment & mitigation measures have been discussed. It is mentioned therein:
"It is, therefore, apparent that there will be negligible impact of mining on the surface water regime."1 "No chemical having toxic elements will be used for carrying out mining activity. Also, neither Limestone nor overburden contains any kind of toxic element which can contaminate the water. The hydrogeology report of the area has been discussed in Chapter- VII of this Final EIA/ EMP report."2 Adverse impact on the catchment area of the wetland
11. As noted above, the stand of the project proponent is that two Bandharas (check dams) i.e. Malan and Samadhiyala do not fall in the buffer area of the lease. Third i.e Nikol is about 8 km and is not in the catchment area. The fourth i.e. Kalsar is very small and there is no river or canal connected to the same. Judgment of the Hon'ble Supreme Court in Jitendra Singh v. Ministry of Environment & Ors.3 and of the Gujarat High Court in Shailesh R. Shah v. State of Gujarat 4 to the effect that water bodies need to be protected have no relevance in the present fact situation when there is no threat to any water body. Other relied upon judgments also do not advance the case of the appellant in view of distinguishing features in the facts of the present case.
Absence of Cumulative Impact Assessment
12. As noted earlier, the stand of the project proponent is that the cumulative impact has been duly conducted and is part of the EIA study.
Chapter 4 of the EIA study refers to detailed observations and findings 1 Para 4.5.1 2 Para 4.5.2 3 (2019) SCC OnLine SC 1510 4 (2002) 3 GLR 2295 25 on the subject. We find it to be so. Thus, it cannot be held that such study has not been conducted.
Absence of effective public hearing
13. The project proponent has explained with reference to the documents that the public notice was duly issued through the concerned statutory authorities and the Panchayats in the area supported the project. As regards fresh public hearing after revising of the Mining Plan, the EAC held that such fresh public hearing was not required as the mining area was reduced by less than 5% and concerns of all the stakeholders had already been duly addressed.
14. Further, the impugned order has taken into account the EIA reports and other study reports. There is also reference to the public hearing and the issues considered therein. There is further reference to the EAC meetings dated 24-25 October, 2016 and 23-25 November, 2016 wherein relevant aspects were duly considered. The EAC further considered the matter on 30-31 January, 2017 and observed that no fresh public hearing was required. A report was also sought from the District Collector, State PCB and Geology Mining Department of Gujarat.
Written representations from the public were also duly considered. After approving the proposal for grant of EC, 'specific' and 'standard' conditions taking care of the possible concerns have been laid down.
15. Since the project has not yet commenced, it is not possible to go into the question of compliance of the said conditions at this stage.
Needless to say that such conditions are mandatory and binding and must be observed. Any violation thereof may render the EC liable to be canceled, as mentioned in clause 16 of the conditions. Moreover, there 26 has to be monitoring of such conditions during execution of the project by the statutory authorities, including MoEF&CC and the State PCB.
In view of above, we do not find any ground to interfere with the impugned EC.
The appeal is dismissed.
In view of order passed on merits, misc. applications, if any, will stand disposed of.
Adarsh Kumar Goel, CP S. P. Wangdi, JM Dr. Nagin Nanda, EM September 24, 2020 Appeal No. 62/2018 (M.A. No. 726/2018) DV 27