National Green Tribunal
Rajjan vs State Of Uttar Pradesh on 26 April, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 04 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 327/2021
(With report dated 21.04.2022)
Rajjan Applicant
Versus
State of U.P. & Ors. Respondent(s)
Date of hearing: 26.04.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. Vanshdeep Dalmia & Mr. Suchakshu Jain, Advocates
Respondent(s): Mr. Priyanka Swami, Advocate for SEIAA, UP
Mr. Pradeep Misra, Advocate for UPPCB
ORDER
1. Grievance in this application challenging grant of EC for mining is that cluster EIA procedure was required to be followed having regard to the location of the mining sites in favour of respondents no. 7 to 10-M/s. Limelight Dealers Pvt. Ltd., M/s. Pragyasan Business Pvt. Ltd., M/s. Alok Mishra and M/s. Anantadrishti Multiventures LLP which has not been followed.
2. Vide order dated 14.12.2021, considering the grievance of the applicant, the Tribunal sought an independent report from a joint Committee of MoEF&CC, CPCB and SEIAA, UP. The Tribunal also issued notice to the respondents, including the private respondents and directed 1 that the report may be uploaded on the website of CPCB so that the concerned parties can access the same for further course of action.
3. In pursuance of above, report has been filed by the joint Committee through the SEIAA, UP acknowledging illegality in grant of EC as follows:-
"3. The Committee conducted virtual meetings on 25.01.2022 and 10.03.2022. During the meeting various issues discussed in reference to above NGT case including the procedure being adopted by SEIAA/SEAC UP for appraisal and grant of Environmental Clearance (EC).
3.1. The geo-referenced co-ordinates as provided by mining department have been considered without any physical or digital verification.
3.2. The cluster certificate issued by the Mining Department has also been considered without any cross verification, and the Mining Departments mostly indicates operational mine (if any) in the surrounding for issuing the cluster certificate. As such the mine areas which are under consideration of EC for which the cluster certificate has been issued by them is not indicated in the cluster certificate.
3.3. However, in the 'Enforcement & Monitoring Guidelines for Sand Mining' issued by Ministry of Environment, Forest and Climate Change in January, 2020 it has been recommended that 'The State Expert Appraisal Committee (SEAC) under SEIAA, consisting of experts from renowned fields such as Mines, Environment, Sociology etc. shall conduct a site inspection of the proposed sand quarry site and after intense scrutiny, may recommend the proposal to SEIAA for approval.
3.4 Thus, the recommendation of 'Enforcement & Monitoring Guidelines for Sand Mining' is not been considered by SEIAA & SEAC while issuing the EC.
4. The committee visited the site on 16.03.2022 to verify the actual status. The District Administration, mining department and UPPCB were also requested to depute concerned officials for the said inspections. Accordingly, SDM Shri N P Maurya, Mining Officer Shri Rajesh Kumar and Shri Ra, monitoring assistant Jas Prasad from UPPCB were also present during the visit to give the relevant inputs.
5. The Committee also calculated the lease area based on the latitude and longitude mentioned in the EC and compared it with the lease area mentioned in the EC. The details of the mining projects in question are as given in Table- 1 2
6. Issues related to EC issued to the project proponents 6.1. Total permitted mining lease area of these four projects is 113.75 Hectare.
6.2. As explained at point No 3, the ECs has been appraised by SEIAA/SEAC considering the Cluster certificates issued by the mining department.
6.3. The cluster certificates issued are stating that no mine has been situated within the 500 m from the proposed site. The said cluster certificates have been issued erroneously by the mining department due to which the decision taken by SEIAA based on the said cluster certificate has been erroneous.
6.4. All the allotted mine lease areas are adjoining to each other. Mine M/s. Limelight Dealers Pvt. Ltd shares its boundary with M/s. Alok Mishra mine on South and M/s. Pragyasan Business Pvt. Ltd. on North. The M/s. Anantadrishti Multiventures LLP is located only at 24 m in North of M/s. Pragyasan Business Pvt. Ltd. The concerned Google Earth image is attached at Annexure - 1.
6.5. Thus, the required 500 m distance between the mine lease area is not available and thus EC issued to individual mine instead of considering the case of cluster mine is not in accordance with the provisions of the EIA Notification, 2006.
6.6. Significant difference has been observed in total lease area mentioned in EC, geo-coordinates mentioned in EC, Lease Area mentioned in lease agreement and actual allotted area, as per KML provided by Mining Department.
6.7. Even the lease boundary of M/s Alok Mishra is overlapping with the lease boundary of M/s Limelight Dealers.
7. The details of the replenishment study are not provided.
It is understood that the EC has been issued without any replenishment study and the project proponents have been asked to submit the said study within the 2 years. The replenishment rate has not been considered in any mechanism at present scenario.
8. The substantial portions of permitted mine lease areas are found in submerged condition under the active stream of the river. The condition of active river stream observed during third week of March 2022 is expected to prevail even during the upcoming summer season. It has been informed by the mining officer that some of the lease areas have been restricted during physical allotment at site considering these conditions. In such cases the operational lease area of mine is less than the area mentioned in the EC. (Details mentioned in the Table- 1).
9. Several ponds have been observed in each mine area. It has been informed that the water from the surroundings has percolated in the excavated pits forced to form these kinds of ponds.3
10. The first mine from the north direction, i.e., M/s.
Anantadrishti Multiventures LIP mine falls in the portion of the river where sand bars have formed due to riverine migration/ lateral shift/ meandering, due to which the river water streams seen around both the sides of the mining area resulting in the higher rate of seepage during the excavation.
11. Several heaps have been observed throughout the mining lease areas. It has been informed that the quality of the sand in the upper strata is of poor quality which is not generally saleable in the market. The overburden material is removed and kept aside for extraction of sand of better quality. If these heaps remain during the rainy season, then there is every possibility for obstruction for river water stream which would result in the change in the river course.
12. The members of the committee visited the allotted corners of each lease area to record the latitude and longitude of these points. It has been observed that most of the demarcation poles were not at the designated demarcated place. The pillar points are not matching with the co- ordinates mentioned in the EC.
13. As per the information from UPPCB, M/s. Pragyasan Business Pvt. Ltd. has yet not obtained Consents under Air and Water Acts. The mine has been in production since 06.02.2021 without obtaining consents. The proponent is liable to pay applicable Environmental Compensation. However, the UPPCB has not initiated any action against the defaulter mine under Water and Air Act.
14. All the mine projects have installed DG Set without permission from UPPCB. Similarly, they have installed multiple bore wells but not obtained desired NOC from CGWA/SGWA. Compliance of these conditions are also anticipated by above mentioned projects through the Consents issued by UPPCB.
15. All the mine proponents were supposed to submit Geo-
hydrological study report within six months to confirm the quality and level of ground water. However, no such report has been submitted by the proponents.
16. Committee observed that all lessee have separate road from active mine pits to weigh bridge which are passing through the same village.
17. Following are some of the additional non-compliance of the EC and Consent conditions 17.1. Not having indicative Hoardings/boards at site.
17.2. Not having facilities for water sprinkling on haul road to control dust emission.
17.3. Non-operational PTZ cameras in some of the mines.
17.4. Not having wastewater treatment facilities in temporary habitation campus.4
17.5. Vehicle used for transportation could not produce PUC certificates during the visit.
17.6. Commi ttee noticed that M/s Alok Mishra, and M/s Pragyas an Business Pvt. Ltd., having the light arrangement which reflected that the mining operations could also be conducted during the night hours.
17.7. Committee noticed that, no green belt has developed so far.
18. Project proponents have been supposed to submit the EC Compliance report on every six months to respective integrated Regional Office of MOEF&CC, SEIAA, concerned RO UPPCB and District Mining Officer. However, as per records of integrated Regional Office of MOEF&CC, no such reports have been received so far.
19. The mining department and project proponents have been requested to provide actual daily production details to verify the status of production with reference to the quantity permitted as per the EC issued by SEIAA. However, this data has not been provided till the date by them.
20. Findings of the committee: In view of the facts and observations referred above, it is evident that the environmental clearance have been issued based on the erroneous cluster certificates given by the mining department. As of now SEIAA has no mechanism to cross verify the data provided by mining department. Similarly, the compliance of the various conditions of EC and consent have neither been strictly ensured nor been verified by the concerned departments. Due to these lacunae several environmental, technical and administrative issues have been piling up in the matter.
21. Recommendations of the Committee 21.1. SEIAA, UP can be asked to strictly review the environmental clearance issued by them to said project proponents in accordance with the provisions of EIA Notification, 2006 and its subsequent amendments. 21.2. The mining department shall develop SOP for issuing cluster certificates in future to eliminate such kind of erroneous certifications.
21.3. Department of Environment can be asked to develop mechanism for cross verification of the data provided by Mining Department.
21.4. SEIAA, UP shall consider the findings of the replenishment study and district survey before issuing the EC pertaining to river bed mining cases.
21.5. The concerned departments can be asked to verify the compliances with respect to 21.5.1. Status of replenishment study.
21.5.2. Amount of portion of lease area lying in the active river stream 21.5.3. Amount of portion of lease area lying in 5 submerged conditions 21.5.4. Status of permissions taken from UPPCB for DG sets 21.5.5. Status of NOC from CGWA/SGWA in compliance to the EC condition 21.5.6. Status of green belt developed by project proponent 21.5.7. Status of compliance of EC and consent conditions in totality.
21.6. As the daily production and other related data required for calculation of Environmental Compensation was not made available to the committee, the UPPCB and mining department shall issue notices and impose requisite Environmental Compensation as per the Guidelines issued by CPCB for the non-compliance of consent conditions and daily production limit prescribed in the EC.
Additional views of Committee Member, SEAC-1, UP nominated by SEIAA on point no. 3.4 of the report The State Level Environment Appraisal Committee (SEAC) has been constituted under the EIA Notification, 2006 for recommending the issuance of EC by SEIAA. The Members of committee conduct the meetings for issuing the EC for the various category-B projects according to the EIA Notification, 2006 and paid a very nominal honorarium for the purposes.
Moreover, Chairman/ members of SEIAA/SEAC are part time and are not full-time serving officer to the Government. They are either serving or retired government officials/ scientists/ academicians.
Therefore, it is not feasible to survey the sites of each and every project which laid down for the recommendation of EC."
4. Reply has also been filed by SEIAA, UP on 25.04.2022 which merely mentions the procedure followed by SEIAA in granting EC. No reply has been filed by Project Proponents. We accept the report of the joint Committee and direct further action in the light thereof.
5. We declare the EC to be illegal and direct SEIAA, UP to review the ECs granted by it, develop SOP for issuing cluster certificates in future, develop mechanism for cross verification of the data provided by Mining Department, and to consider the findings of the replenishment study and verification of the compliances with respect to:-
"21.5.1. Status of replenishment study.
21.5.2. Amount of portion of lease area lying in the active river stream 21.5.3. Amount of portion of lease area lying in 6 submerged conditions 21.5.4. Status of permissions taken from UPPCB for DG sets 21.5.5. Status of NOC from CGWA/SGWA in compliance to the EC condition 21.5.6. Status of green belt developed by project proponent 21.5.7. Status of compliance of EC and consent conditions in totality."
6. We further direct SEIAA, UP to develop Public Grievance Redressal Mechanism for considering any grievance against illegal grant of ECs. The State PCB may recover compensation inter-alia considering the observations of the Hon'ble Supreme Court in Common Cause Vs. UOI & Ors., (2017) 9 SCC 499 and Section 21(5) of the Mines and Mineral (Development and Regulation) Act, 1957, apart from compensation for damage to the environment as found by the joint Committee, including illegal borewells and illegal extraction of ground water. The Chief Secretary, UP may ensure appropriate action against erring officers who gave misleading information, leading to illegal grant of EC and consequential loss to the environment.
7. We note that the Tribunal has directed audit of functioning of SEIAA, vide order dated 13.08.2021 in OA No. 199/2021, Saviour Park Apartment Owners Association vs. State of Uttar Pradesh & Ors., as follows:
"5. Accordingly, apart from a Committee for the conduct of functional audit of functioning of SEIAA in the matter of grant of ECs, there is need to conduct audit of compliance of environmental requirements in the project in question by an independent Expert Committee. For this purpose, we constitute a four-member Expert Committee comprising nominees of MoEF&CC, CPCB, IIT Bombay and Member Secretary, State PCB. The Committee will be at liberty to take assistance from any other expert/institution. The CPCB and State PCB will be nodal agency for coordination and compliance. The Committee may visit the site and conduct the proceedings online, wherever necessary and also interact with the stakeholders. The functional audit report as well as the Expert Committee report about status of compliance in the project may be furnished within three months by e- mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF before the next 7 date with an advance copy to the PP for its response, if any, before the next date. Copy of second report about status of compliance of the project may be furnished to the PP in advance for its comments, if any, before the next date. Copy of the first report about functional audit may be furnished to the MoEF&CC also for its response in terms of action taken before the next date."
8. The Committee constituted for functional audit as above, may look into the report of the Committee in the present case which has been quoted above for purposes of submitting its report to this Tribunal in OA No. 199/2021, supra.
The application is disposed of.
A copy of this order be forwarded to MoEF&CC, CPCB, Chief Secretary, UP, SEIAA, UP and UP PCB by e-mail for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM April 26, 2022 Original Application No. 327/2021 SN 8