Mr. Bhagwanbhai Bhanabhai Solanki vs Union Of India Through Secretary Moef & ... on 21 February, 2022

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National Green Tribunal

Mr. Bhagwanbhai Bhanabhai Solanki vs Union Of India Through Secretary Moef & ... on 21 February, 2022

1. These appeals have been preferred against two Environmental Clearances (EC) dated 12.11.2020, granted by State Environment Impact Assessment Authority (SEIAA), Gujarat for limestone mining by M/s. Ultratech Cement Limited and its subsidiary M/s. Narmada Cement Company Limited at village Babarkot, Taluka-Jafrabad, District Amreli, Gujarat for area of 49.84.54 hectares and 14.20.45 hectares (hereafter to be called the project proponent - PP). According to the appellant, the area 1 of mines is more than 50 ha on account of which project is category-A which cannot be cleared by the SEIAA. To overcome the mandate of law, the mines have been split into two. Mining leases in the area of 565.9394 hectares of the same PP are in already in existence.

2. The appellants have also contended that the ECs have been granted without following due process of law in an eco-sensitive area. There is no Wildlife Conservation Plan. The appraisal of the projects should have been as a 'cluster' instead of standalone mines. with. Public hearing was a farce. EC has been granted ignoring the impact on environment - wildlife, air pollution, water pollution, natural resources, water courses and the eco- sensitive area. Initially the SEAC sought additional data on 03.01.2018 but thereafter the project was approved, without availability of any authentic data on the subject. Mining started even before the grant of EC. Ex-post facto EC has been allowed without treating the project to be a violation case and without recovering compensation for such violations. There is no effective mechanism for compliance of the EC conditions. The area has Asiatic Lions and having regard to adverse impact of the project on the wildlife, the EC could not have been granted. Apart from lions, there are animals and other migratory birds. The applicants have also raised some other points to which reference does not appear to be necessary. Procedural History

3. Vide order dated 30.06.2021, the Tribunal appointed eight Member joint Committee comprising three nominees of the MoEFCC out of its EAC, a nominee of Chairman SEIAA, Gujarat out of its SEAC, nominees of CPCB, State PCB, Chief Wildlife Warden, Gujarat and District Magistrate, District Amreli to undertake visit to the site and interact with stake holders and furnish a factual and action taken report in the matter to the Tribunal. 2 The PP filed I.A. Nos. 54-55/2021 for recall of the order dated 30.06.2021. It was submitted that there is no point which requires appointment of a Committee as ECs in question were valid as per version of the PP and the documents filed and relied upon by the PP alongwith the said IAs. However, vide order dated 27.09.2021, the Tribunal found that the issues raised by the PP will be considered at appropriate stage, after the report is furnished by the Committee, appointed by the Tribunal. In pursuance of order dated 30.06.2021, report of the joint Committee has been filed on 15.01.2022.

Rival contentions and consideration of the issue

4. We have heard learned counsel for the parties and considered the matter. Contentions raised on behalf of the appellants are that mining area being more than 50 hectares, as per Notification dated 14.09.2006, the project is Category A project which has to be appraised by MoEF&CC not by SEIAA. The PP is trying to indirectly do what is directly prohibited by splitting the area into two, though the area is integral and more than 50 hectares. The appraisal has to be of entire area and not separate for the two adjoining areas, which infact forms a cluster, alongwith with the area in between which is also mining area of the PP.

5. The stand of the PP on the other hand is that there is a gap between two mines and therefore, two mining areas are independent and both are less than 50 hectares.

6. Thus, the main issue for consideration is whether the mining area is more than 50 hectares or it is expansion of existing mining lease of the same PP so as to hold that the project is category A, requiring appraisal by the MoEF&CC, instead of SEIAA.

7. Relevant entry in the Schedule to the EIA Notification dated 14.09.2006 is as follows:

"SCHEDULE (see Paragraphs 2 and 7) List of Projects or Activities requiring Prior Environmental Clearance Project or Activity Category with threshold limit Conditions if any A B 1 Mining, extraction of natural resources and power generation (for a specified production capacity) (1) (2) (3) (4) (5) 18[1(a) (i) Mining of ≥50 ha. of mining <50 ha > ha of 19[General conditions minerals lease area in mining lease shall apply

(ii) Slurry pipelines respect of non-coal area in respect Note: (i) Prior (coal lignite and mine lease. >150 ha of non-coal Environmental other ores) of mining lease area in mine lease. clearance is as well passing through respect of coal mine <150 ha > 5 ha required at the stage of national parks/ lease. Asbestos of mining lease renewal of mine lease sanctuaries/coral mining irrespective of area in respect for which application reefs, ecologically mining area. of coal mine should be made up to sensitive areas. lease] one year prior to date All projects. of renewal.

(ii) Mineral prospecting is exempted.]

8. As already noted, the area of one mine is 49.84.54 ha (slightly less than 50 ha) and the other is 14.20.45 hectares. In close by area there is 565.9394 hectares area which is also subject matter of mining by the PP for which EC has been separately granted by the MoEF&CC. Thus, if the EC in the present case is taken to be of more than 50 ha or expansion of already granted EC for 565.9394 hectares area, the project will be category A. Report of the Fact-finding Committee

9. We may now refer to the fact-finding Committee, which undertook visit to the site on 04.12.2021 and interacted with the stakeholders, including the PP. In the report, following maps have been filed to show the mining areas:

Figure-1. Location of the limestone mine leases of M/s Ultratech Cement Limited.

From Figure‐1, it may be inferred that both the mine leases are separate two patches of land and aerial distance between the nearest boundary of these two mine leases is about 600 m. However, there exists common boundary with other operational mine and 49.84.54 ha mine. The shortest distance between operational mine and 14.20.45 ha mine lease is about 43 m.

Figure-2. Map showing distance between mines in the area."

10. The pre-feasibility report, filed by the PP Annexure R-12/2 to its IA, is as follows:

"xxx ..................................xxx ................................xxx 2.1.2 The Project Background Govt. of Gujarat issued Letter of Intent (LOI) vide letter no. MCR- 102011-ML-739-CHH.1 dt.04.02.2012 over an area of 49.8454 ha 5 for grant of lease and advised to submit an approved Mining Plan under MCR.

The State Govt. has finalized guidelines for grant of applied area of limestone and identified pending cases under sec.10 A (1) (C) of MMDR Amendment Act-2015. The case of Narmada Cement Jafarabad Works of UltraTech Cement Ltd. was also included in the list and under active consideration for grant. (Annexure-II).

This 49.8454 Hector mine is proposed to enhance the life of clinkerisation plant of Narmada cement - Jafarabad works. Presently Narmada cement mine (565.9394 Hector) is main source of raw material for the plant and it is adjacent to this proposed project. The mine will operate by open cast mechanized method of working through same machinery, infrastructures and resources available in existing adjacent mine. The 49.8454 ha. mine is surrounded by two major limestone mines owned by UltraTech Cement, so there is no additional impact will be create on the environment as the major part of the machinery and infrastructures, roads and other facilities etc. will be common. The Mining plan for approval is being submitted for grant of the mining lease as per conditions of LOI."

11. It is, thus, clear that the mining area in question is integral part of total mining area, which is more than 50 hectares. Two mining leases together are of more than 50 hectares and cannot be treated as standalone for purposes of EIA. There is also already existing mine of more than 50 hectares. The entire area is one cluster. In this view of the matter, for all purposes, the area being more than 50 hectares has to be treated as category 'A' project, requiring appraisal only by the MoEF&CC. Even if, the two are taken as separate, it is expansion of an existing project in which case also it has to be appraised by MoEF&CC even if it is less than 50 hectares.

12. Learned Counsel for the PP has relied upon conclusion of the fact finding Committee, which is as follows:

"xxx .............................xxx.................................xxx

4. Though the two mine leases may not qualify as cluster but the area is a mining cluster and requires integrated approach for environment management. By and large, the mining leases in the area are in the name of M/s Ultratech Limited and hence efforts for environmental measures emerged after assimilative 6 capacity study may be undertaken in an integrated way irrespective of ownership and isolated consents & clearances. The assimilative capacity outcome may be considered as additional condition of Consents issued by GPCB and environmental clearance issued by SEIAA, if required or whenever required."

13. We note that the Notification dated 14.08.2018 amends the schedule to the Environment (Protection) Rules, 1986 by making a separate provision for EC proposal for minor mineral mining in cluster situations, as follows:

"S.O. 3977(E).-- Whereas, by notification of the Government of India in the erstwhile Ministry of Environment and Forests vide number S.O.1533 (E), dated the 14th September, 2006 issued under sub- section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government directed that on and from the date of its publication, the required construction of new projects or activities or the expansion or modernisation of existing projects or activities listed in the Schedule to the said notification entailing capacity addition with change in process or technology or product mix shall be undertaken in any part of India only after prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Government under sub-section (3) of section 3 of the said Act, in accordance with the procedure specified therein;

xxx ......................................xxx........................................xxx Now, therefore, in exercise of powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986), read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby makes the following further amendments in the Environment Impact Assessment Notification, 2006 namely:-

In the said Notification, in the SCHEDULE, for item 1(a), 1(c), and the Schematic Presentation of Requirements on Environmental Clearance of Minor Minerals including cluster situation in Appendix-XI and entries relating thereto, the following item and entries shall be substituted, namely:

xxx ......................................xxx........................................xxx Area of Category Requirement Requirement Requirement Who can Who will Authority Authority to Lease of Project of EIA / EMP of Public of EC prepare EIA / apply for to monitor EC (Hectare) /DSR Hearing EMP EC appraise compliance /grant EC EC Proposal of Sand Mining and other Minor Mineral Mining in cluster situation 7 Cluster area 'B2' Form -1M, PFR, No Yes State, State Project DEAC/ DEIAA of mine DSR and Agency, Group Proponent DEIAA/ SEIAA leases up to Approved Mine of Project SPCB 5 ha Plan Proponents, CPCB Project MoEFCC Proponent Agency Cluster area 'B2' Form -I, PFR, No Yes State, State Project DEAC/ nominated of Mine DSR and Agency, Group Proponent DEIAA/ by MoEFCC leases > 5 Approved Mine of Project ha and < 25 Plan and one Proponents, ha with no EMP for all Project individual leases in the Proponent lease > 5 ha Cluster Cluster area 'B2' Form -I, PFR, No Yes State, State Project SEAC/ of Mine DSR and Agency, Group Proponent SEIAA leases > 5 Approved Mine of Project ha and < 25 Plan and one Proponents, ha with any EMP for all Project individual leases in the Proponent lease > 5 ha Cluster Cluster of 'B1' Form -I, PFR, Yes Yes State, State Project SEAC/ mine leases DSR and Agency, Group Proponent SEIAA of area ≥ 25 Approved Mine of Project hectares Plan and one Proponents, with EIA/EMP for all Project individual leases in the Proponent lease size ≤ Cluster 100ha Cluster of 'A' Form -I, PFR, Yes Yes State, State Project EAC/ any size DSR and Agency, Group Proponent MoEFCC with any of Approved Mine of Project the Plan and one Proponents, individual EIA/EMP for all Project "

lease      >                 leases in the                         Proponent
100ha                        Cluster



                      Finding and conclusion

14. We hold the project to be category A as the mining area is integral and more than 50 ha. The conclusion of the Committee does not support the PP. Infact, it is found that the entire area is a cluster. Though the PP has argued that cluster concept as per MoEF&CC Notification dated

14.08.2018 applies to minor mineral leases, the spirit of EIA requires that the impact of entire activity is studied in integral manner and the spirit of EIA notification requires such projects to be category A. Even if we agree that splitting up is not with the intention to avoid consequence of project being A category and the two leases are separate, in substance the project is category A. Further, it is expansion of existing project which has to be appraised by MoEF&CC only and not by SEIAA, as has been done by way of impugned ECs.

15. Once we hold the project in question to be category 'A' project, the impugned ECs have to be quashed, without prejudice to the grant of fresh 8 EC, by adopting the procedure of category 'A' project, by the competent authority, in accordance with law. Accordingly, the impugned ECs are quashed. The appeals are allowed.

16. We also take this opportunity to observe that to give effect to the precautionery principle, the MoEF&CC needs to lay down guidelines on the subject of appraisal of mining clusters in respect of major minerals, as the guidelines laid down in Notification dated 14.08.2018 are confined to minor minerals. In doing so, the clusters may be clearly defined in respect of inter-se distance between the two mines and procedure for appraisal laid down. The guidelines may also address the grievance that Project Proponents split up the mining projects to defeat the mandate of law, so as to avoid appraisal in the manner laid down in the EIA Notification. The guidelines may also provide for role of SEIAA and District Mining Authorities in safeguarding this aspect in discharge of their functions.

The appeals are disposed of in above terms.

A copy of this order be forwarded to MoEF&CC by e-mail for compliance.

Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dr. Nagin Nanda, EM Dr. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM February 21, 2022 Appeal Nos. 57 & 58 of 2020(WZ) A + DV 9

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