National Green Tribunal
Makwana Naranbhai Rambhai vs Ministry Of Environment Forest And ... on 17 December, 2024
Item No.3 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Appeal No.161/2024 (WZ)
I.A. No.304/2024(WZ)
Makwana Naranbhai Rambhai & Ors.
.....Appellants
Versus
Union of India, MoEF&CC & Ors.
....Respondents
Date of hearing: 17.12.2024
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Appellant : Mr. Sanjay Parikh, Senior Advocate along-with
Mr. Abhimanue Shrestha, Advocate
ORDER
1. By our previous order dated 14.11.2024, when this appeal was first heard at length, we had expressed our opinion that the present appeal was not properly worded. In order to facilitate us to understand the issue involved in this case, liberty was granted to the appellants to amend the pleadings/grounds of the said appeal within seven days, pursuant to which I.A. No.304/2024(WZ) has been moved by the learned counsel for appellants re-wording the grounds of the appeal to make them precise and concise. Therefore, we are treating this I.A. as supplementary pleadings and allow this I.A. to be read as part of the pleadings of the present appeal.
I.A. No.304/2024(WZ) stands disposed of accordingly. Page 1 of 7 Appeal No.161/2024 (WZ)
2. We have heard the argument of learned senior counsel for appellants on admission.
3. This appeal has been filed seeking quashing of the EC dated 16.09.2024 granted by the respondent No.1- MoEF&CC to respondent No.5- M/s. Nirma Ltd. through its Authorized Representative for the proposed Vangar & Madhiya Limestone Mining Project, which involves limestone mining with a production capacity of 1.6 Million Tonnes Per Annum (MTPA) within a mine lease area of 612.1336 hectares, located at Villages of Vangar and Madhiya, Taluka Mahuva, District Bhavnagar, Gujarat, on the grounds that (A) the project consists of three mining project, which are captive to proposed cement plant, which are interlinked and interconnected, hence the procedure provided in the OM dated 24.12.2010 should have been followed, which has not been done; it is further mentioned in the ground no.(B) that out of total mining areas of 1626.196 ha. (612.1336 ha + 681.62 ha + 332.24 ha.) of the three mining projects, 1351.6489 ha. are private agriculture lands. The Project Proponent has admittedly purchased surface right only over 101.1967 ha. and has also not submitted any credible document showing the Intent of the Land owners to sell the land for the proposed project, which is mandatory as per the OM dated 01.10.2014. Moreover, the land owners have categorically stated during the public hearing and have also submitted affidavits stating that they are not willing to give away their land for the mining project in question and hence, the entire appraisal process stands vitiated.
4. It is further mentioned in the ground no.(C) that the limestone mined from the three mining areas in question are meant for captive use in the cement plant proposed by the same project proponent, though the Page 2 of 7 Environment Clearance was granted to the cement plant in December 2008, which was subsequently revoked in December 2011. The said revocation order was set aside by the Tribunal vide Judgment/ Order dated 14.01.2015. A review being Review Application No.9 of 2015 was filed, which also dismissed vide Order dated 18.05.2015. Both the aforesaid Judgments and Orders of this Tribunal are challenged before the Hon'ble Supreme Court in Civil Appeal No.8302-03 of 2015 and Civil Appeal No.939 of 2016, which are pending adjudication. In view of this, it is not made clear if the Cement Plant, for which the limestone is being proposed, would at all come up. In such an event to permit the mining activity to be undertaken would result into irreversible situation.
5. It is further mentioned in the ground no.(D) that the mining areas are located within the catchment area of Bandhara, constructed by the State of Gujarat, therefore, the mining on the said land cannot be permitted in view of the law settled by the Hon'ble Supreme Court in Tata Housing Development Co. Ltd. v. Aalok Jagga [(2020) 15 SCC 784]; it is further mentioned in the ground no.(E) that the project area falls within the coastal region of Saurashtra. In order to address the issue of Salinity Ingress, Bandharas have been constructed with the recommendation of High Level Committee, appointed by the Government of Gujarat. Limestone in Saurashtra is a natural wall in the coastal area between the sea and the landward area. It is the limestone that prevents the sea and sea water from making further ingress from underneath the land. If the limestone is removed, the natural barrier between the sea and landward side stands removed, which will invite salinity ingress in an astronomical manner and its adverse impact on the agriculturists will be writ evident when the question of food security arises and the same damage will not be quantifiable.
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6. It is further mentioned in the ground no.(F) that it is admitted that the project area falls within the limits of Greater Gir Conservation Reserve (Bruhad Gir), but the said fact has been concealed by the Project Proponent. Though there was Biodiversity Expert engaged, which confirmed presence of around 21 Schedule-I species and that there is no discussion or application of mind by the EAC, as to whether the said fact has been considered, while recommending grant of Environment Clearance; it is further mentioned in the ground no.(G) that EAC accepting the recommendation of Sub-Committee, directed the Project Proponent to conduct study to showcase the probable impact of mining on migratory birds, species and their fly-way passage (Central Asian Flyway). The study so conducted at the behest of the Project Proponent, confirmed presence of water bodies in the study area and that the migratory birds are mostly seen in water-logged area, which are located beyond 1.5 km from the lease area. It also concluded that mining lease area falls in the global migratory bird flyways i.e. Central Asian Flyway. EAC not being satisfied with the mitigation measures suggested by the Project Proponent, recommended vetting of said report by institute of national repute, which are working on conservation and protection of migratory birds. Therefore, while the said report is still pending, the EAC proceeded to recommend grant of Environment Clearance, by imposing a condition that the Project Proponent would implement all the mitigative measures mentioned in the aforesaid study report, which runs contrary to the "precautionary principle" and thus, violates the principle of "Sustainable Development". The issue of migratory birds was raised in the public hearing, which was brushed aside by the Project Proponent.
7. It is further mentioned in the ground no.(H) that the lease has been granted for captive use in the cement plant, the environment clearance Page 4 of 7 process proceeded on the said premise, in fact, the EIA Report was prepared on the said premise, the public hearing was held with the said understanding. But, subsequently, it has been made out that the chemical grade limestone would be used for their Soda Ash Plant about 100 km. away, therefore, the EIA Report will have to be revised, considering the impact of change in use and the public hearing would be required to be held afresh; it is further mentioned in the ground no.(I) that though the TOR recommended conduct of cumulative impact assessment by considering all the mining activity including the transport scenario of the mines in the study area. The documents submitted by the State of Gujarat in Nirma Ltd. Vs. UOI & Ors. (Appeal No. 4 of 2012), shows that there exist or is proposed several other mining leases, within the close vicinity of the three mining areas in question. The Project Proponent only disclosed existence of its own mining areas and Cement Plant and did not conduct the Cumulative Impact Assessment as per the TOR.
8. It is further mentioned in the ground no.(J) that Project Proponent was granted Terms of Reference, pursuant to their fresh proposal in the year 2022. The same was necessitated, in view of the fact that the Terms of Reference granted in the year 2017 was no more valid. Despite the fact that the fresh process was initiated and the Project Proponent relied upon the baseline data collected by the Min Mec R&D Laboratory, during March, 2021 to June, 2021. Since the process started in year 2017 had lapsed, there is no way that the study conducted during its validity could be used to process the fresh proposal. Final EIA was prepared by a consultant namely Centre for Envotech & Management Consultancy Pvt. Ltd. on the basis of baseline study conducted between 1st March - 2nd June, 2021 (Summer Season) by Min Mec R&D Laboratory. As noted in Page 5 of 7 the EAC Minutes of Meeting dated 18.10.2022 observed that the MM Mec Consultancy Pvt. Ltd. is not accredited for 1(a) Mining of Minerals. Therefore, the EIA Report, prepared on the baseline data collected by Min Mec R&D Laboratory, as held by the Hon'ble Supreme Court in Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338 and as per the OMs issued by the MoEF, could not have been relied upon to prepare the EIA Report and the EIA report itself was liable to be rejected.
9. It is further mentioned in the ground no.(L) that though the Notice for Public Hearing states that the Draft EIA Report and the Executive Summary are available at the offices mentioned therein, but the same admittedly was not provided to the Gram Panchayat. In fact, the Appellants were not made available fresh Draft EIA Report, if any prepared, in terms of the fresh TOR issued. Therefore, they were constrained to participate in the public hearing proceedings, relying upon the Draft EIA Report and the Executive Summary prepared by Min Mec Consultancy Pvt. Ltd. in the year 2021. Therefore, the conduct of Public Hearing, based on the Draft EIA Report prepared earlier by Min Mec Consultancy Pvt. Ltd., vitiates the public hearing; it is further mentioned in the ground no.(M) that the three Public Hearing for three mining projects were held on 28.04.2023 at the premises of Nirma Cement Plant Area, NH 8 E/51, Survey No. 80, Village: Padhiyarka, Taluka: Mahuva, Dist.: Bhavnagar, respectively, at 9:30 am, 1:00 pm 86 4:00 pm. Holding three separate Public Hearing on the same day over a slot of 3-4 Hrs. each is against the mandate and requirement of EIA Notification, 2006, as also held by the Hon'ble High Court of Delhi in Utkarsh Mandal v. Union of India, 2009 SCC Online Del 3836. Therefore, it is submitted that the Public Hearing was vitiated.
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10. It is further mentioned in the ground no.(N) that the Minutes of Meeting only note representation and assurance made by the Project Proponent, which have been accepted as gospel truth and the Minutes of Meeting do not demonstrate any application of mind on any of the queries raised.
11. In view of above submission, we deem it appropriate to admit this appeal and accordingly admit the same.
12. Registry is directed to issue Notice to the respondents, returnable within 04(four) weeks.
13. Appellants are directed to take necessary steps for service to the respondents by both ways (Dasti as well as by Registered Post) and also on available e-mail/WhatsApp and submit service affidavit within one week.
14. Appellants are also directed to supply copy of the appeal and relevant documents to the respondents within a week.
15. Respondents are directed to submit their reply affidavits within four weeks through e-filing portal of NGT and also circulate the same to the appellants as also other respondents by available e-mail.
16. Rejoinder, if any, is directed to be submitted within one week thereafter.
Put up this matter for further consideration on 05.02.2025 Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM December 17, 2024 Appeal No.161/2024 (WZ) I.A. No.304/2024(WZ) P.Kr Page 7 of 7