National Green Tribunal
Bhumi Adhigrahan Visthapan Avam ... vs State Of Jharkhand Represented Through ... on 24 September, 2024
Item No.09 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Original Application No.137/2023/EZ
IN THE MATTER OF
Bhumi Adhigrahan Visthapan
Avam Punarwas Kisaan Samiti,
Through its Honorary President Gaurav Singh
Having office at: Belwatika,
P.O. & P.S.: Daltonganj, District-Palamau,
PIN-822101,
..........Applicant(s)
Versus
1. State of Jharkhand,
Through Chief Secretary,
Government of Jharkhand,
1st Floor, Project Building,
Dhurwa, Ranchi
PIN-834004,
2. Department of Mines and Geology,
Government of Jharkhand,
Through the Secretary,
Yojana Bhawan,
Doranda, Ranchi,
PIN-834002,
3. Director, Mines, Mines Directorate,
Government of Jharkhand,
Yojana Bhawan,
Doranda, Ranchi,
PIN-834002,
4. Jharkhand State Mineral Development Corporation Ltd. (JSMDC),
(A Government of Jharkhand Undertaking),
Through its Managing Director,
Khanij Nigam Bhawan,
Doranda, Ranchi,
PIN-834002,
5. State Level Environment Impact Assessment Authority (SEIAA),
Through its Member Secretary,
Nursery Complex, Near Dhurwa Bus Stand,
Dhurwa, Ranchi,
PIN-834004,
1
6. Jharkhand State Pollution Control Board (JSPCB),
Through its Member Secretary,
H.E.C., Dhurwa,
Ranchi, Jharkhand,
PIN-834004,
7. Ministry of Environment, Forests and Climate Change,
Government of India,
Through the Deputy Director General of
Forest Integrated Regional Office,
Second Floor, Head Quarter,
Jharkhand State Housing Board,
Harmu Chowk, Ranchi, Jharkhand,
PIN-834002, ...(deleted vide order dtd.05.10.2023
8. Collector-cum-Deputy Commissioner,
Office of Deputy Commissioner and District Magistrate,
Collectorate Building - Garhwa, Jharkhand,
PIN-822114,
9. District Mining Officer,
Government of Jharkhand,
XIH39, Nawada,
Garhwa, Jharkhand,
PIN-822114,
10. Divisional Forest Officer,
Government of Jharkhand,
Garhwa North Division,
Van Bhawan, Kachari Road,
Garhwa, Jharkhand,
PIN-822114,
...........Respondent(s)
Date of hearing: 24.09.2024
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s) : Ms. Paushali Banerjee, Advocate
For Respondent(s) : Ms. Aishwarya Rajyashree, Advocate for R-1-4, 8-10,
Mr. Ashok Prasad, Advocate for R-5,
Mr. Surendra Kumar, Advocate for R-6
ORDER
1. Ms. Paushali Banerjee, learned Counsel is present for the Applicant.
2. The Applicant in the present Original Application is alleging that unabated illegal sand mining is going on in Pachadumar Sand 2 Mining Project of M/s Jharkhand State Mineral Development Corporation Ltd. ('JSMDCL' for short), Respondent No.4 herein. It is alleged that the Respondent No.4 has obtained Environmental Clearance on the strength of:-
(i) false Certificate of Divisional Forest Officer, Garhwa North and
(ii) is carrying on sand mining operation illegally without seeking Wildlife Clearance from the Standing Committee of the National Board for Wildlife (NBWL).
3. It is alleged that the sand mining activities of the Respondent No.4 has caused acute air and water pollution which is also causing an existential threat to the wildlife of Kaimur Wildlife Sanctuary of Bihar and adjoining Jharkhand. It is also alleged that the illegal sand mining is situated at a distance of 900 meters from the Kaimur Wildlife Sanctuary in gross violation of the various orders of Hon'ble Supreme Court with regard to Eco Sensitive Zone. It is stated that the Kaimur Wildlife Sanctuary is situated in the States of Bihar and Uttar Pradesh and adjacent boundary of Jharkhand separated by river Son.
4. It is also stated that the portion of the Kaimur Wildlife Sanctuary falling within Uttar Pradesh has got its Eco Sensitive Zone notified as final but the portion of the Kaimur Wildlife Sanctuary falling within Bihar has published its draft Notification dated 28.01.2015 and final notification is still pending. It is stated that in furtherance of the sand mining policy and Rules, the Director of Mines, Jharkhand, intimated the Managing Director of Jharkhand State Mineral Development Corporation Ltd., Respondent No.4, a 3 provisional list of 177 identified sand Ghats of Category-II spread over 19 districts of the State of Jharkhand for preliminary initiation of lawful process at the end of the Respondent No.4 vide its letter No.2649/M dated 21.11.2017. The Pachadumar Sand Ghat of Garhwa District is mentioned at G. Total No.68 of the aforesaid list.
5. It is stated that State Environment Impact Assessment Authority (SEIAA), Jharkhand has granted Environmental Clearance in favour of the Respondent No.4 in its 59th Meeting dated 09.08.2018 at Para I/c. However, Para I/k of the same Minutes notes "Submission of forged documents by M/s JSMDC Ltd. regarding submission of forged documents of Divisional Forest Officer, Garhwa North Division, without his knowledge".
6. It is also alleged that the Environmental Clearance dated 31.08.2018 clearly mentions that the same is subject to obtaining clearance under the Wildlife (Protection) Act, 1972, from the competent authority but M/s JSMDC, Respondent No.4, has till date not obtained any clearance from the National Board for Wildlife.
7. It is alleged that the sand mining is being carried on illegally at Plot No.2363(P) at Mouza - Pachadumar, Anchal - Ketar, Dist. - Garhwa, Jharkhand, area 20.24 ha. for which Consent has also been obtained from the State Board. It is also stated that the Applicant on coming to know about this illegality in February, 2022, has served notice to State Environment Impact Assessment Authority (SEIAA) dated 02.02.2022 with the prayer to cancel the Environmental Clearance under Rule 8(vi) of EIA Notification, 2006, read with Para C1 of Environmental Clearance dated 09.08.2018/31.08.2018 and to initiate criminal prosecution 4 against persons carrying on illegal mining but no action has been taken till date.
8. At the time of admission, the Tribunal constituted a Committee comprising of the following Members:-
i) Senior Scientist, Jharkhand State Pollution Control Board;
ii) Collector cum District Magistrate, Garhwa, or his nominee not below the rank of Additional District Magistrate (A.D.M.);
iii) District Mining Officer, Government of Jharkhand or his nominee being an Officer of Senior rank;
iv) Senior Scientist, State Environment Impact Assessment Authority (SEIAA), Jharkhand; and
v) Divisional Forest Officer, Garhwa North Division, Jharkhand
9. The Committee was directed to visit the site in question and submit its Report with regard to the allegations made in the Original Application within four weeks. It was also directed that in case violations are found, the Committee shall recommend penalty as well as Environmental Compensation and also suggest remedial measures, if any, in this regard.
10. Ms. Paushali Banerjee, learned Counsel for the Applicant submitted that Environmental Clearance was granted to the Pachadumar Sand Mining Project of M/s JSMDCL, Respondent No.4, at Plot No.2363(P) of Mouza-Pachadumar, Anchal, Ketar, District-Garhwa, Jharkhand, area 20.24 hectares, on 31.08.2018 (Annexure-A4 to the Original Application), for mineral reserve estimated at 3,24,480 cum and annual production capacity as per Form-I at 3,24,480 cum/annum. It is submitted that the proposal was apprised by the State Level Expert Appraisal Committee ('SEAC' for short) and 5 recommended for grant of Environmental Clearance in its meeting held on 25th and 26th June, 2018.
11. Learned Counsel for the Applicant referring to Annexure-A5, Minutes of the 59th Meeting of the State Level Environment Impact Assessment Authority ('SEIAA' for short), Jharkhand, dated 09.08.2018, submitted that in the said meeting during consideration of the project by the SEAC with regard to Pachadumar Sand Project, the Project in question, it was observed that M/s JSMDCL, Respondent No.4, had submitted forged documents of the Divisional Forest Officer, Garhwa North Division, without his knowledge i.e., without knowledge of the Divisional Forest Officer, Garhwa North Division. Learned Counsel submitted that in the Minutes of the Meeting, it is further noted that M/s JSMDCL has corrected the certificate itself in the case of Kharsota Sand Mining Project of M/s JSMDCL (8.10 Ha), Sundipur Sand Mining Project of M/s JSMDCL (10.12 Ha) and Pachadumar Sand Project of M/s JSMDCL (20.24 Ha) and suggests conspiracy.
12. Applicant has referred to the letter of the Divisional Forest Officer, Garhwa, North Division, dated 22.03.2018 (Annexure-A6, page 82 of the paper book), with regard to mining site in Plot No.2363(P) situated in Mouza-Pachadumar, Anchal-Ketar, and submitted that this letter of the Divisional Forest Officer contains false information. At Item No.2 of the letter it is stated that the demarcated forest area is at a distance of 900 meters from the proposed mining site and at Item Nos.3&4 it is stated that there is no National Park or Wildlife Sanctuary respectively, within the 10 kilometers radius of the proposed mining site. It is submitted that based on this false information regarding non-existence of Wildlife Sanctuary/National 6 Park inspite of declaration by the Ministry of Environment, Forests and Climate Change, Government of India of the same vide Notification S.O. 3549(E) dated 30.12.2015 (page 357 of paper book), if had been brought to the notice SEIAA/SEAC for consideration while granting the Environmental Clearance dated 31.08.2018, the said Environmental Clearance would not have been granted. The learned Counsel for the Applicant submitted that Environmental Clearance dated 31.08.2018 has been granted on the basis of this false information and there is non-disclosure of the material information while submitting application for grant of Environmental Clearance by the Project Proponent, JSMDCL, which makes the Environmental Clearance liable to be revoked.
13. Learned Counsel for the Applicant also submitted that earlier the Applicant had filed one Original Application No.55/2022/EZ (Bhumi Adhigrahan Visthapan Avam Punarvas Kisan Samiti Vs. State of Jharkhand & Ors.), before this Tribunal alleging that the JSMDCL is carrying on sand mining on the basis of an illegally granted Environmental Clearance dated 31.08.2018 for Sundipur Sand Mining Project in Sundipur Mouza, granted on the basis of forged documents and that a finding was recorded by the Tribunal in para 21 of its order dated 17.04.2023 that there had been forgery/misrepresentation in the coordinates of the sand mining area and the Tribunal had disposed of the Original Application with a direction to SEIAA, Jharkhand, to re-examine the observations made in the 58th Minutes of the Meeting with regard to the sand plots pertaining Mouza-Sundipur. Paras 21, 22, 23 and 24 of the judgment and order dated 17.04.2023 read as under:- 7
"21. Be that as it may, we find that the allegations of the Applicant, namely, that there has been forgery/misrepresentation in the coordinates of the sand mining area with regard to Plot No.2268(P) as being in North Koel River and not in Son River at Mouza-Sundipur, has not been controverted by any of the Respondents. The satellite pictures showing the coordinates of Plot No.2268 as falling in North Koel River has also not been controverted or disputed by the Respondents.
22. Considering the above facts, we are of the view that the matter with regard to the coordinates of Plot No.2268(P) being in North Koel River and not in Son River is a matter which needs to be examined by the SEIAA, Jharkhand.
23. We accordingly dispose of this Original Application with a direction to the SEIAA, Jharkhand, to re-examine the observations made in the 58th Minutes of Meeting of SEAC that JSMDC officials have attested forge letters under conspiracy with regard to Plot No.2268(P) and also with regard to the coordinates of the Plot No.2268(P) being in North Koel River and not River Son, and take a decision as to whether the said plot is in River Son, Mouza- Sundipur, or in North Koel River. Let a decision be taken with a period of two months i.e., by 30.06.2023.
24. In the meantime, the Environmental Clearance dated 31.08.2018 shall remain in abeyance."
14. We may note, at this stage, that the plot in question i.e., Plot No.2363(P), in the present case is situated at Mouza-Pachadumar, Anchal, Ketar, District-Garhwa, Jharkhand, and not in Mouza- Sundipur, and the learned Counsel is only trying to draw parallels to the findings of the SEIAA in its 58th Minutes of the Meeting in which the Pachadumar Sand Mining Project was also considered.
15. Learned Counsel for the Applicant has also referred to the letter of the Divisional Forest Officer, Garhwa North Division, dated 02.06.2018 (Annexure-I, page 91, to the Original Application), but perusal of this letter would show that the same is with regard to 8 Mouza-Sundipur, and does not relate to the sand mining project in the land in question in the present Original Application.
16. Learned Counsel for the Applicant further submitted that the draft notification of Kaimur Wildlife Sanctuary was published on 28.01.2015, copy of the Notification has been filed as Annexure-A1 to the Original Application, which mentions that Kaimur Wildlife Sanctuary situated in the then Shahbad District, presently in Rohtas and Kaimur District in the State of Bihar, spread over an area of 1504.96 sq.km. notified as Wildlife Sanctuary vide notification of the Government of Bihar, Forests Department No. S.O.1160 dated 20.07.1979, under the provisions of the Wild Life (Protection) Act, 1972. The Eco-Sensitive Zone of the said Wildlife Sanctuary, as per the notification, varies from zero to two kilometers around the Kaimur Wildlife Sanctuary excluding South- Eastern and Southern side of the Sanctuary and also the Western side of the Sanctuary which shares boundary with State of Uttar Pradesh and the area of the Eco-Sensitive Zone is 485.55 sq.km. As per the said Notification, the Eco-Sensitive Zone is bounded by 24°51'4.653'' N latitude and 84°6'23.382''E longitude towards East- North; 24°52'12.643''N latitude and 83°21'31.104"E longitude towards West; 25°1'53'385"N latitude and 83°30'45.046"E longitude towards North-West; and 24°55'48.562"N latitude and 83°42'29.518"E longitude towards South-West.
17. Learned Counsel submitted that the State of Jharkhand was created under the State Reorganization Act, 2000 and Garhwa falls within the State of Jharkhand and since there is a dispute with regard to the allegations of the sand mine in Garhwa as to whether it falls within the State of Jharkhand or within the State of Bihar, 9 therefore, in terms of the Government of India, Ministry of Environment, Forest and Climate Change, Guidelines for National Parks and Wildlife Sanctuaries issued vide F. No.1-9/2007/WL-I (Pt) dated 09.02.2011, the two States of Bihar and Jharkhand should have a mutual consultation and decide upon the width of the Eco-Sensitive Zone around the protected area in question. Reference has been made to para 6.5 of the said Notification dated 09.02.2011 which read as under:-
"6.5 It is to mention here that in cases where the boundary of a Protected Area abuts the boundary of another State/Union Territory where it does not form part of any Protected Area, it shall be the endeavor of both the State/Union Territory Governments to have a mutual consultation and decide upon the width of the eco- sensitive zone around the Protected Area in question."
18. Learned Counsel further submitted the Hon'ble Supreme Court in its order dated 03.06.2022 passed in I.A. No.1000/2003 in W.P.(C) No.202 of 1995 (T.N. Godavarman Thirumulpad Vs. Union of India & Ors.), has observed that each protected forest, that is, national park or wildlife sanctuary must have an ESZ of minimum one kilometer measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 09th February, 2011, shall be strictly adhered to. Paras 56 and 57 of the order dated 03.06.2022 reads as under:-
"56. We accordingly direct:
56.1. Each protected forest, that is, national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9-2-
2011 shall be strictly adhered to. For Jamua Ramgarh Wildlife Sanctuary, it shall be 500 m so far as subsisting activities are concerned.
10 56.2. In the event, however, the ESZ is already prescribed as per law that goes beyond one kilometre buffer zone, the wider margin as ESZ shall prevail. If such wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular national park or wildlife sanctuary awaiting final decision in that regard, then till such final decision is taken, the ESZ covering the area beyond one kilometre as proposed shall be maintained.
56.3. The Principal Chief Conservator of Forests as also the Home Secretary of each State and Union Territory shall remain responsible for proper compliance of the said Guidelines as regards nature of use within the ESZ of all national parks and sanctuaries within a particular State or Union Territory. The Principal Chief Conservator of Forests for each State and Union Territory shall also arrange to make a list of subsisting structures and other relevant details within the respective ESZs forthwith and a report shall be furnished before this Court by the Principal Chief Conservator of Forests of each State and Union Territory within a period of three months. For this purpose, such authority shall be entitled to take assistance of any governmental agency for satellite imaging or photography using drones.
56.4. Mining within the national parks and wildlife sanctuaries shall not be permitted.
56.5. In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as per the 9-2-2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ.
11 56.6. The minimum width of the ESZ may be diluted in overwhelming public interest but for that purpose the State or Union Territory concerned shall approach CEC and MoEF&CC and both these bodies shall give their respective opinions/recommendations before this Court. On that basis, this Court shall pass appropriate order.
56.7. In the event CEC, MoEF&CC, the Standing Committee of National Board for Wildlife or any other body of persons or individual having special interest in environmental issues consider it necessary for maintaining a wider or larger ESZ in respect of any national park or wildlife sanctuary, such body or individual shall approach CEC. In such a situation CEC shall be at liberty to examine the need of a wider ESZ in respect of any national park or wildlife sanctuary in consultation with all the stakeholders including the State or Union Territory concerned, MoEF&CC as also the Standing Committee of the National Board for Wildlife and then approach this Court with its recommendations.
56.8. In respect of sanctuaries or national parks for which the proposal of a State or Union Territory has not been given, the 10 km buffer zone as ESZ, as indicated in the order passed by this Court on 4-12-2006 in Goa Foundation [Goa Foundation v. Union of India, (2011) 15 SCC 791] and also contained in the Guidelines of 9-2-2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till a final decision in that regard is arrived at.
56.9. IA No. 1412 of 2005 and IA No. 117831 of 2019 do not relate to the issues involved in IA No. 1000 of 2003. These applications may be placed before the appropriate Bench to be heard independently.
56.10. For the same reason, IA No. 1992 of 2007 shall also be dealt with independently by the appropriate Bench and no order is being passed concerning this application at this stage. 56.11. The application of the State of Rajasthan registered as IA No. 3880 of 2015 relates to clarification of an order passed in Goa Foundation [Goa Foundation v. Union of India, (2011) 15 SCC 791] [WP (C) No. 460 of 2004]. Let this application be placed before the Bench taking up the case of Goa Foundation.
12 56.12. IA No. 96949 of 2019 and IA No. 65571 of 2021 are disposed of with directions that the MoEF&CC as also CEC shall proceed to take a decision in regard to the draft proposal for ESZ made by the State of Maharashtra to the extent of 0-3.89 km and the MoEF&CC shall take final decision on that basis within a period of three months, if the said decision has not already been taken.
56.13. Prayers for impleadment of the applicants in IAs Nos. 984 of 2003, 1026, 1123, 1197 and 1251 of 2004 are allowed. Necessary amendments may be carried out in these regards. 56.14. For the reasons already given, however, prayers of the applicants in IAs Nos. 982 of 2003, 1027, 1124, 1198, 1210, 1250 of 2004 and 1512 of 2006 are rejected.
56.15. CEC shall quantify the compensation to be recovered from each miner indulging in mining activities within the Jamua Ramgarh Sanctuary in violation of any statutory provision or order of this Court. Specific recommendations for compensatory afforestation, reclamation, clearing overburden dumping as also compensation in monetary units for degradation of forest resources shall also be made. A further set of recommendations concerning confiscation of earth-moving equipments and other machineries lying within or in the periphery of the said sanctuary shall be made by CEC. Recommendations shall be made within a period of four months before this Court in the form of an application. This Court shall consider passing appropriate order upon going through such application. The exercise concerning such reparation, including quantifying compensation shall be undertaken upon giving the mining operator, State and MoEF&CC opportunity of hearing.
56.16. In the event there is any subsisting order of any High Court or any court subordinate to such High Court covering any of the issues dealt with by this Court in this order, this order shall prevail over any such order which may be contrary to these directions. 56.17. We have already observed that there are certain overlapping issues involved in this writ petition and the cases of Goa Foundation [Writ Petition (C) No. 460 of 2004] and [Writ Petition (C) No. 435 of 2012]. We request the Hon'ble the Chief Justice of India to consider having the present writ petition i.e. T.N. 13 Godavarman Thirumulpad, In re v. Union of India; WP (C) No. 460 of 2004 (Goa Foundation v. Union of India) as also WP (C) No. 435 of 2012 (Goa Foundation v. Union of India) be heard together before the same Bench. The Registry may place this order before the Hon'ble the Chief Justice of India.
57. This order disposes of IA No. 1000 of 2003 in the above terms. Pending application(s), if any, shall stand disposed of.
19. However, we find that subsequently in I.A. No.131377 of 2022 in W.P. (C) No.202/1995 (T.N. Godavarman Thirumulpad Vs. Union of India & Ors.), the Hon'ble Supreme Court has modified/clarified its earlier order dated 03.06.2022 vide order dated 26.04.2023 and has proscribed mining activities within one kilometer distance of Wildlife Sanctuaries. Paras 64 to 67 of the order dated 26.04.2023 read as under:-
"64. We further clarify that the direction contained in paragraph 56.1 of the order dated 3rd June 2022 (supra) would not be applicable where the National Parks and Sanctuaries are located on inter-State borders and/or share common boundaries.
65. We also modify the direction contained in paragraph 56.4 of the order dated 3rd June 2022 (supra) and direct that mining within the National Park and Wildlife Sanctuary and within an area of one kilometre from the boundary of such National Park and Wildlife Sanctuary shall not be permissible.
66. We also modify the directions contained in paragraph 56.5 of the order dated 3rd June 2022 (supra) and replace the same as under:
(i) The MoEF & CC and all the State/Union Territory Governments shall strictly follow the provisions in the said Guidelines dated 9th February 2011 and so also the provisions contained in the ESZs notifications pertaining to the respective Protected Areas with regard to prohibited activities, regulated activities and permissible activities;14
(ii) We further direct that while granting Environmental and Forest Clearances for project activities in ESZ and other areas outside the Protected Areas, the Union of India as well as various State/Union Territory Governments shall strictly follow the provisions contained in the Office Memorandum dated 17th May 2022 issued by MoEF & CC.
67. All the other present I.As shall stand disposed of in terms of the above. No costs."
20. Learned Counsel for the Applicant referring to the letter of the Divisional Forest Officer, Garhwa North Division, dated 02.06.2018 (page 91 of paper book), submitted that in the said letter in Item No.3 of the queries in the said letter, the Divisional Forest Officer has stated that there is no park within 10 kilometers radius of the sand mine project. As we have already noted hereinabove, in the letter dated 02.06.2018 the sand mine project referred to was of Mouza-Sundipur, Anchal, Kanti, Thana-Kanti, Plot No.2268(P) which is not the sand mining project in question in the present Original Application.
21. The Jharkhand State Pollution Control Board, Respondent No.6, in its affidavit of 10.01.2024 has stated that the Consent to Establish was issued to the Pachadumar Sand Mining Project vide State Board's letter dated 24.10.2018 for product and capacity sand of 3,24,480 cum/annum over an area of 50.01 acres at Plot No.2363(P) situated in Mouza-Pachadumar, District-Garhwa. It is stated that this Consent to Establish was issued to the Unit by relying upon the contents of the Environmental Clearance dated 31.08.2018 issued by SEIAA, Jharkhand, and the Notification dated 16.08.2017 issued by the Department of Industries, Mines and Geology, Government of Jharkhand. It is stated that thereafter three Consents to Operate were issued to the said Project vide State 15 Board's letter dated 06.11.2018 valid upto 30.09.2019; letter dated 15.10.2019 valid upto 30.09.2021; and letter dated 29.01.2022 valid upto 31.08.2023. It is also stated that at present the Unit has applied for renewal of Consent to Operate vide their application No.16612954 which is under process.
22. The SEIAA, Jharkhand, Respondent No.5, in its affidavit of 05.01.2024 has stated that the SEAC in its 57th Meeting held on 31.05.2018 and 01.06.2018 had observed that there was some correction/rectification in the plot number in the letter No.873 dated 22.03.2018 issued by the Divisional Forest Officer, Garhwa North Division. It is stated that thereafter the Divisional Forest Officer, Garhwa, issued a letter dated 02.06.2018 (Annexure-A, page 151, to the affidavit), mentioning that the Pachadumar Sand Mining Project Plot No.2363(P) is 900 meters distant from the Forest area. However, in this letter we find that the Divisional Forest Officer, Garhwa, in Item No.3 has falsely mentioned that there is no National Park within 10 kilometers of the sand site in question.
23. It may be noted here that only the plot number was now correctly mentioned as 2363(P) in place of 2563 earlier wrongly mentioned in the letter of the Divisional Forest Officer, Garhwa, dated 22.03.2018.
24. It is stated that thereafter the SEAC in its 58th Minutes of Meeting held on 25th to 26th June, 2018, after full deliberations recommended for grant of Environmental Clearance and on the basis of the said recommendations the SEIAA in its Minutes of Meeting held on 09.08.2018 decided to grant Environmental Clearance to the Pachadumar Sand Mining Project of M/s JSMDCL 16 in Plot No.2363(P) situated in Mouza-Pachadumar, District- Garhwa, Jharkhand, area 20.24 hectares.
25. It is stated that the SEIAA sought a clarification from the Divisional Forest Officer, Garhwa North Division, vide letter dated 16.04.2022 with regard to the Pachadumar Sand Mining Project of M/s JSMDL, Respondent No.4, and the Divisional Forest Officer, Garhwa, replied vide his letter dated 27.07.2022 based on the 07.06.2022 of the Divisional Forest Officer, Kaimur Forest Division, Bhabhua, Bihar.
26. A perusal of the letter of the Divisional Forest Officer, Kaimur Forest Division, Bhabhua, dated 07.06.2022 (Annexure-C, page no.154, to the affidavit), with regard to as to whether the Pachadumar Sand Mining Project of JSMDCL was situated within the Eco-Sensitive Zone of the Kaimur Wildlife Sanctuary replied in the negative but stated that it is zero distance from the Eco- Sensitive Zone.
27. The letter of the Divisional Forest Officer, Garhwa, dated 27.07.2022 (page no.152 of the paper book) has been filed with the affidavit, relying on the GPS coordinates prepared by the District Mining Officer, Garhwa, vide his letter dated 17.05.2022, which mentions that the Pachadumar Sand Mining Project of M/s JSMDCL is at a distance of 1.8 kilometer from the Eco-Sensitive Zone of the Kaimur Wildlife Sanctuary and is outside the Eco- Sensitive Zone of the said Wildlife Sanctuary.
28. The Collector-cum-Deputy Commissioner, Garhwa, Respondent No.8, has filed affidavit dated 13.02.2024 stating that the Pachadumar Sand Mining Project of Respondent No.4, JSMDCL, is being carried on in Plot No.2363, area 20.24 hectares situated in Village-Pachadumar under Ketar Block, District-Garhwa. It is 17 stated that the said Sand Mining Project is at present inoperative due to lack of Consent to Operate.
29. However, we may, at this stage, clarify that the Jharkhand State Pollution Control Board in its affidavit dated 10.01.2024 has clarified that Consent to Operate of Respondent No.4 Unit is under process of renewal vide application No.16612954.
30. In the affidavit of the Collector-cum-Deputy Commissioner, Garhwa, it is also stated that initially the plot number in the said Sand Mining Project was wrongly mentioned as Plot No.2563 in the No Objection Certificate (NOC) issued by the Divisional Forest Officer (North), Garhwa, but the error was pointed out and the said plot number was corrected to Plot No.2363 vide Divisional Forest Officer (North), Garhwa, letter No.3012 dated 02.06.2018. It is also stated that previously the distance of the Pachadumr Sand Mining Project of Respondent No.4 was stated to be 900 meters from the Kaimur Wildlife Sanctuary Bihar but later on the distance was verified by the Divisional Forest Officer, Garhwa, and it has been mentioned that the Pachadumar sand Mining Project is at a distance of 1.8 kilometer from the Kaimur Wildlife Sanctuary and its Eco-Sensitive Zone.
31. So far as the distance of 900 meters from the forest area is concerned, the letter of the Divisional Forest Officer, Garhwa North Division dated 22.03.208 has been controverted by the Divisional Forest Officer, Garhwa North Division, in his further letter dated 27.07.2022 (page 152) of the paper book, wherein it has been clearly described that through the assessment of the distance on the basis of GPS coordinates of the proposed mining site, it is found that the proposed mining site is at a distance of 1.8 kilometer from 18 the Kaimur Wildlife Sanctuary and is outside its Eco-Sensitive Zone and, therefore, the Environmental Clearance granted on 31.08.2018 is valid on this count.
32. However, we find that the letter of the Divisional Forest Officer, Garhwa North Division, dated 22.03.2018 (page 82 of the paper book), on the basis of which Environmental Clearance dated 31.08.2018 was issued, this clarification was not available and the letter of the Divisional Forest Officer, clearly gives false information regarding non-existence of any wildlife sanctuary/national park within 10 kilometers of the proposed mining site.
33. A further affidavit dated 21.03.2024 has been filed by the Collector-
cum-Deputy Commissioner, Garhwa, bringing on record the geographical coordinates of the Pachadumar Sand Mining Project site which is as under:-
Points Latitude Longitude
1 24°31΄08.90″N 83°33΄02.99″E
2 24°31΄08.90″N 83°33΄39.72″E
3 24°31΄02.59″N 83°33΄39.72″E
4 24°31΄02.59″N 83°33΄02.99″E
34. In the affidavit, it is reiterated that the Kaimur Wildlife Sanctuary is situated at a distance of 1.8 kilometer from the Mine site. It is also stated that the Ministry of Environment, Forest and Climate Change, has issued final notification of the Eco-Sensitive Zone of the Kaimur Wildlife Sanctuary vide Notification S.O. No.3549(E) dated 30.12.2015 and the Eco-Sensitive Zone of the said Wildlife Sanctuary has been notified to an extent upto two kilometers from 19 the boundary of the Kaimur Wildlife Sanctuary in the State of Bihar.
35. At this stage, Mr. Ashok Prasad, learned Counsel for the SEIAA, Jharkhand, Respondent No.5, raised a preliminary objection that the Original Application is not maintainable as it has been filed with the intention to commit fraud upon the Court by referring to a draft notification of the Ministry of Environment, Forest and Climate Change with the Original Application.
36. In support of his contention, learned Counsel has relied upon the judgment of the Hon'ble Kerala High Court in (1996) 1 KLT 377 (Association of Planters of Kerala Vs. State), judgment of the Hon'ble Calcutta High Court in (2016) 332 ELT 515 (Nilachal Iron and Power Ltd. Vs. CESTAT, EZB), and judgment of this Tribunal dated 10.04.2024 passed in Original Application No.03/2024/EZ (Dasarathi Sethi & Anr. vs. State of Odisha & Ors.).
37. We have gone through the aforesaid judgments and we find that none of the judgments have any application to the facts of the present case.
38. In the present case, we find that though the Original Application had been filed relying on a draft notification dated 28.01.2015 issued by the Ministry of Environment, Forest and Climate Change prescribing the extent and boundaries of the Eco-Sensitive Zone of the Kaimur Wildlife Sanctuary notifying an area upto two kilometers from the boundary of the protected area of the Kaimur Wildlife Sanctuary in the State of Bihar, the final notification was also issued on 30.12.2015 (page 171 of the paper book). It may be that the Applicant at the time of filing the present Original Application was not aware of the final notification of the Eco- 20 Sensitive Zone of the Kaimur Wildlife Sanctuary dated 30.12.2015 or should have been more careful in verification of his facts but we find that there is not much material difference in the prescribed extent of two kilometers in the Eco-Sensitive Zone from the boundaries of the Kaimur Wildlife Sanctuary in the State of Bihar, from that envisaged in the draft notification dated 28.01.2015 (page no.37 of the paper book), filed by the Applicant and, therefore, it cannot be said that by filing the draft notification of the Eco- Sensitive Zone of the Kaimur Wildlife Sanctuary dated 28.01.2015 the Applicant was trying to mislead the Tribunal. It is not the case of the Respondents that the draft notification dated 28.01.2015 has been scrapped or rejected by the Ministry of Environment, Forest and Climate change, implying thereby that the Applicant was trying to mislead the Tribunal by relying upon the said notification. It is not disputed by the Respondents that the final notification of the Eco-Sensitive Zone of the Kaimur Wildlife Sanctuary was, in fact, notified by the Ministry of Environment, Forest and Climate Change on 30.12.2015. Therefore, the preliminary objection raised by Mr. Ashok Prasad, Counsel for the SEIAA, Jharkhand, has no effect on the issues raised in the Original Application and thus is wholly misconceived and is rejected.
39. So far as the allegation of the Applicant that the Environmental Clearance granted to the Respondent No.4, JSMDCL, was wrongly issued, since SEIAA in its 59th Meeting had pointed out that the SEAC in its 58th Meeting held on 25th and 26th June, 2018, had observed that JSMDCL, Respondent No.4, had submitted forged document of the Divisional Forest Officer, Garhwa North Division, with regard to the Pachadumar Sand Project (20.24 hectares), is 21 concerned, we find that the issue was brought to the notice of the Divisional Forest Officer, Garhwa, immediately and thereafter the Divisional Forest Officer, Garhwa, in his letter dated 02.06.2018 with regard to Pachadumar Sand Mining Project has clarified that Plot No.2563 was wrongly mentioned instead of Plot No. 2363(P) in the earlier letter dated 22.03.2018 which appears to be a typographical error and was immediately corrected by him on the very next day i.e., on 23.03.2018 under his signature.
40. We may also mention here that in the letter of the Divisional Forest Officer, Garhwa, dated 02.06.2018 he has mentioned the distance of the Pachadumar Sand Mining Project as being 900 meters from the Wildlife Sanctuary but subsequently on 27.07.2022 he has issued a clarificatory letter based on the GPS coordinates provided by the District Mining Officer, Garhwa, and he has mentioned that the distance of the Pachadumar Sand Project of JSMDCL, Respondent No.4, is at 1.8 kilometer from the Kaimur Wildlife Sanctuary and is also situated outside its Eco-Sensitive Zone.
41. We may also mention that the Hon'ble Supreme Court while deciding the I.A. No.1313787 of 2022 (T. N. Godavarman Thirumulpad Vs. Union of India & Ors.) vide is judgment and order dated 26.04.2023 has modified/clarified its previous order dated 03.06.2022 stating that the directions contained therein would not be applicable to the Eco-Sensitive Zones in respect of which a draft and final notification has been issued by the Ministry of Environment, Forest and Climate Change and in respect of the proposals which have been received by the Ministry of Environment, Forest and Climate Change, and further that mining within the National Park and Wildlife Sanctuary within an area of 22 one kilometer from the boundary of such National Park and Wildlife Sanctuary shall not be permissible.
42. Ms. Paushali Banerjee, learned Counsel for the Applicant submitted that on the date of issuance of the Environmental Clearance i.e., 31.08.2018, to the Respondent No.4 the said clarification of the Hon'ble Supreme Court was not in existence and, therefore, the limit of one kilometer as mentioned by the Hon'ble Supreme Court would not apply.
43. In our opinion, in view of the clarification issued by the Divisional Forest Officer, Garhwa North Division, that the Pachadumar Sand Mining Project of the JSMDCL, Respondent No.4, is situated at a distance of 1.8 kilometer beyond the Kaimur Wildlife Sanctuary and is outside its Eco-Sensitive Zone, the Environmental Clearance under challenge in the present Original Application cannot be faulted and is held to be valid and does not require any clarification from the SEIAA, Jharkhand.
44. The Divisional Forest Officer, Garhwa, Respondent No.10, has filed affidavit dated 06.04.2024 bringing on record the Ministry of Environment, Forest and Climate Change, Government of India, Office Memorandum dated 17.05.2022 on the subject "Clarification on requirement of various Environmental and Forest Clearances for Project/Activity in Eco-Sensitive Zone and other such Areas outside Protected Area", as well as Ministry of Environment, Forest and Climate Change, Government of India, Guidelines dated 13.12.2023 which refers to the activities inside Eco-Sensitive Zones, and it is stated that "Notifications of Eco-Sensitive Zones (ESZ) specify the activities which are prohibited, regulated and promoted in the ESZ. Proposal for prohibited activities in the ESZ notification and the 23 guidelines regarding declaration of ESZ issued by the Ministry dated 09.02.2011 (in view of order of Hon'ble Supreme Court dated 28.04.2023 in W.P. (C) No.202 of 1995) shall not be forwarded for consideration of the Standing Committee of National Board for Wildlife (SCNBWL). For taking up any activity within an ESZ, if notified, or within 10 km zone of the boundary of National Parks or Sanctuaries, if ESZ has not been notified, prior approval of the SCNBWL shall be required:
i. for construction and allied activities undertaken by and for Indian Railways and any of its subsidiaries/sister concerns; or ii. if the activity/project is listed in the schedule of the Environment Impact Assessment Notification, 2006 as amended from time to time."
It is, therefore, stated that the Pachadumar Sand Mining Project is not situated within any protected or notified area under the Wildlife (Protection) Act, 1972, and is not situated within a distance of one kilometer from the boundary of the nearest protected area.
45. The SEIAA, Jharkhand, Respondent No.5, has filed affidavit dated 09.04.2024 to the same effect as already covered by the affidavit of the Divisional Forest Officer, Garhwa, and it is stated that the Project in question is situated at a distance of 1.8 kilometer from the Kaimur Wildlife Sanctuary.
46. The Ministry of Environment, Forest and Climate Change Notification dated 21.07.2022 (page no.393 of the paper book), clearly mentions that for carrying on any activity within an ESZ, if notified, or within 10 km of the boundary of National Parks or sanctuaries, if ESZ has not been notified, prior approval of the 24 Standing Committee of the National Board for Wildlife shall be required: (i) for construction and allied activities undertaken by and for Indian Railways and any of its subsidiaries/sister concerns; or
(ii) if the activity/project is listed in the schedule of the Environment Impact Assessment Notification, 2006, as amended from time to time.
47. We may, however, reiterate that after the judgment of the Hon'ble Supreme Court dated 26.04.2023 the Hon'ble Supreme Court has clarified/modified its previous order dated 03.06.2022 and it has been provided that mining activity within the National Park and Wildlife Sanctuary and within an area of one kilometer from the boundary of such National Park and Wildlife Sanctuary shall not be permissible. However, we find that the Hon'ble Supreme Court in its order dated 03.06.2022 in para 56.1 has held that each protected forest, that is, national park or wildlife sanctuary must have an ESZ of minimum one kilometer measured from the demarcated boundary of such protected forest in which activities proscribed and prescribed in the Guidelines of 9-2-2011 shall be strictly adhered to. In para 56.2 of the judgment, the Hon'ble Supreme Court directed that in the event, however, the ESZ is already prescribed as per law that goes beyond one kilometer buffer zone, the wider margin as ESZ shall prevail.... In para 56.4 the Hon'ble Supreme Court has held that mining within the national parks and wildlife sanctuaries shall not be permitted. In para 56.5 of the judgment, the Hon'ble Supreme court has held that in the event any activity is already being undertaken within the one kilometer or extended buffer zone (ESZ), as the case may, of any wildlife sanctuary or national park which does not come within the 25 ambit of prohibited activities as per the 9-2-2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the persons responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Paras 56 and 57 of the judgment have already been extracted hereinabove.
48. In the clarificatory order dated 26.04.2023, the Hon'ble Supreme Court modified the directions contained in para 56.5 of its earlier order dated 03.06.2022 and directed that the MoEF&CC and all the State/Union Territory Governments shall strictly follow the provisions in the said Guidelines dated 9th February 2011 and so also the provisions contained in the ESZs notifications pertaining to the respective Protected Areas with regard to prohibited activities, regulated activities and permissible activities, and further that while granting Environmental and Forest Clearances for project activities in ESZ and other areas outside the Protected Areas, the Union of India as well as well as various State/Union Territory Governments shall strictly follow the provisions contained in the Office Memorandum dated 17th May, 2022 issued by MoEF&CC. Para 66 of the order read as under:-
"66. We also modify the directions contained in paragraph 56.5 of the order dated 3rd June 2022 (supra) and replace the same as under:-
(i) The MoEf&CC and all the State/Union Territory Governments shall strictly follow the provisions in the said Guidelines dated 9th February 2011 and so also the provisions contained in the ESZs notifications pertaining to the respective Protected Areas with regard to prohibited activities, regulated activities and permissible activities;26
(ii) We further direct that while granting Environmental and Forest Clearances for project activities in ESZ and other areas outside the Protected Areas, the Union of India as well as various State/Union Territory Governments shall strictly follow the provisions contained in the Office Memorandum dated 17th May 2022 issued by MoEF&CC."
49. The Jharkhand State Pollution Control Board, Respondent No.6, has filed affidavit dated 14.05.2024 stating that the Joint Inspection of the Pachadumar Sand Mining Project of M/s JSMDCL situated at Mouza-Pachadumar, Anchal, Ketar, District-Garhwa, Jharkhand, was carried out on 25.04.2024, wherein it was noted that there was no activity of sand mining operation taking place within the confines of the Pachadumar Sand Mining Project operated by M/s JSMDCL at Mouza-Pachadumar, Anchal, Ketar, District-Garhwa, Jharkhand. It was also observed that the said Sand Mining Project does not pose an existential threat to the wildlife of Kaimur Wildlife Sanctuary of Bihar and the adjoining area of Jharkhand. It is further stated that the nearest distance of the aforementioned mining site from the Kaimur Wildlife Sanctuary in the State of Bihar is approximately 1.8 kilometer and not 900 meters and the project site is located outside the boundary of the Eco-Sensitive Zone delineated around the Kaimur Wildlife Sanctuary in Bihar as notified by the Ministry of Environment, Forest and Climate Change, Government of India, vide notification S.O. 3549(E) dated 30.12.2015. The Inspection Report reads as under:-
"Report on the Pachadumar Sand Mining Project of M/s Jharkhand State Mineral Development Corporation Ltd. (JSMDC) situated at Mouza - Pachadumar, Anchal - Ketar, 27 District - Garhwa, Jharkhand in light of the directions issued by the Hon'ble National Green Tribunal (Eastern Zone Bench), Kolkata in the matter of Bhumi Adhigrahan Visthapan Avam Punarwas Kisaan Samiti Versus State of Jharkhand & Ors.
In Original Application No.137/2023/EZ dated 15.04.2024 The present report has been prepared in compliance to the directions issued by the Hon'ble National Green Tribunal, Eastern Bench, Kolkata, pursuant to its orders dated 05.10.2023 & 10.04.2024 in Original Application No. 137/2023/EZ (Bhumi Adhigrahan Visthapan Avam Punarwas Kisaan Samiti. Applicant versus the State of Jharkhand and Others. Respondents). It is organized into three sections. Part-I provides insight into the contextual framework that gave rise to this report. Part-II presents the committee's findings/observations regarding the subject matter as mandated by the Hon'ble National Green Tribunal. Part-III summarizes the conclusions drawn from these findings, which are based on site inspections and available factual records.
Report prepared by
SI. No Name Designation
1 Dileep Kumar Yadav Divisional Forest Officer, Garhwa North Forest Division , Jharkhand.
2 Matiyash Vijay Toppo Additional Collector, Garhwa, Jharkhand
3 Nand Dev Baitha District Mining Officer, Garhwa, Jharkhand
4 Dr. Kirti Avishek Senior Scientist, State Environment Impact Assessment Authority
(SEIAA), Jharkhand
5 Ram Pravesh Kumar Regional Officer, Ranchi JSPC Board, Jharkhand
Part-I: Background
1. The petitioner/applicant, Bhumi Adhigrahan Visthapan Avam Punarwas Kisaan Samiti, filed a complaint bearing Original Application No.137/2023/EZ before the National Green Tribunal, Eastern Bench, Kolkata. The complaint alleges the illegal extraction of sand within the Pachadumar Sand Mining Project operated by M/s Jharkhand State Mineral Development Corporation Ltd. (JSMDC) at Mauza -Pachadumar, Anchal - Ketar, District - Garhwa, Jharkhand, resulting in significant air and water pollution. Additionally, the activity poses a threat to the wildlife inhabiting the Kaimur Wildlife Sanctuary in Bihar, as well as the surrounding areas of Jharkhand. 28
2. The applicant alleges in the aforementioned application that Jharkhand State Mineral Development Corporation Ltd. (JSMDC) purportedly secured the Environmental clearance for the aforesaid sand mining on the strength of :-
a. False certificate of Divisional Forest Officer, Garhwa North, and b. Is being carrying on sand mining operation illegally without obtaining Wildlife Clearance from the Standing Committee of the National Board for Wildlife (NBWL)
3. In the mentioned application, the applicant asserts that during the 59th Meeting of the State Environment Impact Assessment Authority (SEIAA), Jharkhand, held on 09.08.2018, environmental clearance was granted to the Pachadumar Sand Ghat, as outlined in Para I/c. However, Para I/k of the same Minutes acknowledge the "Submission of forged documents by Ws JSMDC Ltd. regarding submission of forged documents of Divisional Forest Officer, Garhwa North Division without his knowledge".
4. Additionally, the applicant stated in the aforementioned application that the Environmental Clearance granted by the State Environment Impact Assessment Authority (SEIAA), Jharkhand, for the aforesaid mining project dated 31.08.2018 explicitly states in the clearance letter that the environment clearance is subject to obtaining clearance under the Wildlife (Protection) Act, 1972 from the competent authority.
5. The Hon'ble National Green Tribunal (NGT), Eastern Zone Bench, Kolkata, through its order dated 05.10.2023, issued the following direction as detailed herein below:
"15. Considering the allegations made out in the Original Application, we deem it appropriate to constitute a Committee comprising of the following Members:
Senior Scientist, Jharkhand State Pollution Control Board, Collector cum District Magistrate, Garhwa or his nominee not below the rank of Additional District Magistrate (A.D.M.) State PCB and District Mining Officer, Government ofJharkhand or his nominee being an Officer of Senior rank.29
Senior Scientist:, State Environment Impact Assessment Authority (SEMA),Jharkhand;
Divisional Forest Officer, Garhwa North Division, Jharkhand"
17. The Committee shall visit the site and submit its Report with regard to the allegations made in the Original Application within four weeks.
18. The Jharkhand State Pollution Control Board shall be the Nodal Body for all logistic purposes and shall file the Inspection Report on affidavit.
19. In case violations are found, the Committee shall recommend penalty as well as Environmental Compensation and also suggest remedial measures, if any."
6. In accordance with the directions issued by the Hon'ble NGT, Eastern Zone Bench, Kolkata, a Committee comprising of the following members was constituted:
i. Nominee of the District Magistrate, Garhwa, ii. District Mining Officer, iii. Representative of Jharkhand State Pollution Control Board (JSPCB).
The aforementioned committee conducted a site inspection on 17.11.2023 to verify the facts as alleged by the Applicant. However, due to the absence of the representative from the State Environment Impact Assessment Authority (SEIAA), Jharkhand, owing to the non-constitution of the new SEIAA and SEAC Committee, the inspection could not be concluded. Consequently, the Committee requested the Hon'ble NGT, Eastern Zone Bench, Kolkata, for an extension of four (4) weeks' time to file the inspection report. The Hon'ble NGT accepted the plea made by the Committee and granted a period of four (4) weeks' time to file the affidavit.
7. The Hon'ble NGT in its order dated 10.04.2024, has instructed the Committee as follows:
"6. The Committee in its Report shall also state specifically the distance of the mining lease area from the Kaimur Wildlife Sanctuary/Eco-Sensitive Zone.": 30
8. The Ministry of Environment, Forest and Climate Change (MoEF&CC), Government of India through its Gazette notification S.O. No. 1641 (E) dated 8th April, 2024, has reconstituted the State Environment Impact Assessment Authority, Jharkhand (SEIAA) and State Level Expert Appraisal Committee (SEAC), Jharkhand. Upon the reconstitution of the SEIAA, Jharkhand, the Member Secretary, SEIAA, in its Memo No-33 dated- 16.04.2024; has appointed Dr. Kirti Avishek, Member SEIAA, as a Member of the Committee formed in accordance with the direction issued by the Hon'ble NGT (ESZ), Kolkata in O.A No-137/2023 EZ.
9. In compliance with the aforementioned directions issued by the Hon'ble NGT, Eastern Zone Bench, Kolkata, a Committee comprising the following members was re-constituted:
i. Divisional Forest Officer, Garhwa North Forest Division, Jharkhand ii. Additional Collector, Garhwa, Jharkhand iii. Regional Officer, Jharkhand State Pollution Control Board, Ranchi, Jharkhand iv. District Mining Officer, Garhwa.
v. Dr. Kirti Avishek, Member SEIAA, Jharkhand.
Part-II : Committee's findings/observations
10. This segment presents the committee's findings/observations regarding the subject matters as mandated by the Hon'ble National Green Tribunal, pursuant to its orders dated 05.10.2023 & 10.04.2024 in Original Application No. 137/2023/EZ (Bhumi Adhigrahan Visthapan Avam Punarwas Kisaan Samiti. Applicant versus the State of Jharkhand and Others. Respondents). The aforementioned Committee inspected the site, namely Pachadumar Sand Mining Project of Ws Jharkhand State Mineral Development Corporation Ltd. (JSMDC), situated at Mauza - Pachadumar, Anchal - Ketar, District -Garhwa, Jharkhand, on dated 25.04.2024. The Committee has delineated below the observations are based on the site inspection conducted and the documents submitted by the Project Proponent.
A. Applicant is alleged that unabated illegal sand mining is going on in Pachadumar Sand Mining Project of M/s Jharkhand State Mineral Development Corporation Ltd. (JSMDC), Respondent No.4 herein. It is alleged that the 31 Respondent No.4 has obtained Environmental Clearance on the strength of:-
(i) False certificate of Divisional Forest Officer, Garhwa North and
(ii) Is carrying on sand mining operation illegally without seeking Wildlife Clearance from the Standing Committee of the National Board for Wildlife (NBWL).
Committee Findings: i) M/s Jharkhand State Mineral Development Corporation Ltd. (JSMDC) submitted an application in accordance with Gazette notification No- Kha. Ni -67/2017-1905 dated-16.08.2017 to obtain Environmental Clearance for the sand mining activity at plot no. 2363(P) in Mauza - Pachadumar, Anchal
- Ketar, District - Garhwa, Jharkhand. During the evaluation of the project, the State Level Expert Appraisal Committee (SEAC), Jharkhand, noted an ambiguity with the plot number mentioned in letter No- 873 dated- 22.03.2018 issued by the Divisional Forest Officer (DFO), Garhwa North Forest Division, Garhwa. ii.) SEAC Jharkhand requested clarification to verify the authenticity of the letter issued by the Divisional Forest Officer, Garhwa North Forest Division, regarding information concerning plot no-2363(P) of Mauza - Pachadumar, Anchal - Ketar, District - Garhwa, Jharkhand. Consequently, the Divisional Forest Officer, Garhwa North Forest Division, submitted a revised certificate vide his office letter no-3012 dated-02.06.2018. Subsequently, the State Environment Impact Assessment Authority (SEIAA) sought clarification from the Divisional Forest Officer, Garhwa North Forest Division, Garhwa, Jharkhand, vide letter no -10 dated 16.04.2022 regarding the distance from the Wildlife Sanctuary and Eco-Sensitive Zone (ESZ). In response, the Divisional Forest Officer, Garhwa North Forest Division, Garhwa, submitted its reply to the SEIAA, Jharkhand, vide letter no-1385 dated 27.07.2022. This response was based on a letter submitted by the Divisional Forest Officer, Kaimur Forest Division, Bhabhua, Bihar , who is in the charge of the Kaimur Wildlife Sanctuary , Bihar (letter no-1440 dated-07.06.2022), wherein the Divisional Forest Officer, Kaimur Forest Division, Bhabhua, Bihar, stated that the Pachadumar Sand Mining Project of Ws Jharkhand State Mineral Development Corporation Ltd. (JSMDC) situated at plot no. 2363(P) of Mauza - 32 Pachadumar, Anchal - Ketar, District - Garhwa Jharkhandis not a part of the Eco-Sensitive Zone of the Kaimur Wildlife Sanctuary and the nearest distance of the Pachadumar Sand Project from the boundary of the Kaimur Wildlife Sanctuary is approximately 1.8 KM.
iii.) Consequently, as per the guidelines issued by the Ministry of Environment, Forest, and Climate Change, Government of India, pertaining to projects necessitating Wildlife Clearance from the National Board for Wildlife, no Wildlife Clearance is deemed necessary for the said sand mining project.
B. It is alleged that the sand mining activities of the Respondent No.4 has caused acute air and water pollution which is also causing an existential threat to the wildlife of Kalmar Wildlife Sanctuary of Bihar and adjoining Jharkhand. It is also alleged that the illegal sand mining is situated at a distance of 900 meters from the Kaimur Wildlife Sanctuary in gross violation of the various orders of Hon'ble Supreme Court with regard to Eco Sensitive Zone. It is stated that the Kaimur Wildlife Sanctuary is situated in the States of Bihar and Uttar Pradesh and adjacent boundary of Jharkhand separated by river Sone. Committee Findings: i) M/s Based on the Environmental Clearance granted by the SEIAA, Jharkhand, vide letter no. EC/SEIAA/2018-19/2074/2018/205 Ranchi, dated 31.08.2018, for the aforementioned mining project, the Jharkhand State Pollution Control Board has granted Consent to Operate (CTO) under the Air Act and Water Act vide his office letter no 4SPCB/HO/RNC/CTO-16612954/2024/47 dated-24.03.2021. As per the terms and conditions outlined in the consent letter, the CTO is valid till 10.06.2024. (Copies of the letters are annexed herewith and marked as Annexure-02).
ii.) Air Quality Monitoring reports submitted to the State Pollution Control Board, Jharkhand, for the said sand mining unit indicated that the Ambient Air Quality parameters were within the prescribed limits of the National Ambient Air Quality Standards (Copy is attached as Annexure-3).
iii.) In letter no-1406 dated-07.06.2022, the Divisional Forest Officer, Kaimur Forest Division, Bhabhua, Bihar, stated that the 33 aforementioned project is not within the Eco-Sensitive Zone (ESZ) of the Kaimur Wildlife Sanctuary and the nearest distance of the Pachadumar Sand Mining Project from the Kaimur Wildlife Sanctuary is approximately 1.8 KM.
iv.) According to letter No-3012, Garhwa/dated-02.06.2018, from the Divisional Forest Officer, North Forest Division, Garhwa, the distance from forest land to M/s Pachadumar Sand Mining Project is 900 meters. The SEIAA, Jharkhand, Minutes of Meeting held on - 07.05.2013, stipulate that the mining leasehold area/mining project should not be within 250 meters from reserved forest/protected forest. (Copy of Minutes of Meeting dated- 07.05.2013 is attached as Annexure-04).
C. It is stated that State Environment Impact Assessment Authority (SEIAA), Jharkhand, has granted Environmental Clearance in favour of the Respondent No.4 in its 59th Meeting dated 09.08.2018 at Para I/c. However, Para I/k of the same Minutes admits "Submission of forged documents by M/s JSMDC Ltd. regarding submission of forged documents of Divisional Forest Officer, Garhwa North Division without his knowledge.
Committee Findings: M/s Jharkhand State Mineral Development Corporation Ltd. (JSMDC) submitted an application in accordance with Gazette notification No- Kha. Ni(Vivid) -67/2017-1905 dated- 16.08.2017 to obtain Environmental Clearance. During the appraisal of the project, the State Level Expert Appraisal Committee (SEAC), Jharkhand, noted an ambiguity with the plot number mentioned in letter No- 873 dated- 22.03.2018 issued by the Divisional Forest Officer (DFO), Garhwa North Division, Garhwa. SEAC Jharkhand sought clarification to verify the authenticity of the letter issued by the DFO, Garhwa North Forest Division, regarding complete information pertaining to plot no- 2363(P) of Mauza - Pachadumar, Anchal - Ketar, District - Garhwa, Jharkhand. In response to the above, the DFO, Garhwa North Forest Division, submitted a revised certificate vide reference no- 3012 dated-02.06.2018. (A copy of the reply submitted by DFO, Garhwa North Forest Division, is enclosed as Annexure-I).Based on the revised certificate provided by the DFO, Garhwa (N), 34 Environmental Clearance has been granted to M/s Pachadumar Sand Mining Project.
D. It is stated that the Environmental Clearance dated 31.08.2018 clearly mentions that the same is subject to obtaining clearance under the Wildlife (Protection) Act, 1972, from the competent authority but M/s JSMDC, Respondent No.4 has till date not obtained any clearance from the National Board for Wildlife.
Committee Findings: The Divisional Forest Officer of Kaimur Forest Division, Bhabhua, Bihar, in correspondence bearing reference number 1440 dated 07th June, 2022, has affirmed that the Ws Pachadumar Sand Mining Project does not fall within the Eco-Sensitive Zone (ESZ). Furthermore, it has been asserted that the nearest distance from the aforesaid sand mining project site to the Kaimur Wildlife Sanctuary is approximately 1.8 kilometers. Consequently, in accordance with the directives set forth by the Ministry of Environment, Forest, and Climate Change, Government of India, pertaining to projects necessitating Wildlife Clearance from the National Board for Wildlife, no Wildlife Clearance is deemed necessary for the said sand milling project E. The Committee in its Report shall also state specifically the distance of the mining lease area from the Kaimur Wildlife Sanctuary/Eco-Sensitive Zone. Committee Findings: According to the information provided by the Divisional Forest Officer (DFO), Bhabhua, Bihar it has been clarified that the M/s Pachadumar Sand mining Project does not fall within the Eco-Sensitive Zone (ESZ) of the Kaimur Wildlife Sanctuary. Additionally, the nearest distance from the project site to the Kaimur Wildlife Sanctuary is approximately 1.8 kilometers. Moreover, the proximity of the said mining project site to the nearest boundary of the Kaimur Wildlife Sanctuary, Bihar has also been evaluated employing Geographic Information System (GIS) software, referring the cartographic depiction enclosed with the Final Declaration of Eco-Sensitive Zone of Kaimur Wildlife Sanctuary, Bihar. The distance stands at around 1.7 kilometers. 35 The related maps are enclosed herewith for the kind perusal of the Hon'ble Tribunal.
Part-III: Conclusion
11. This Section presents a summary of the findings obtained through on-site inspections and the scrutiny of available factual records, outlined as follows:
a) During inspection, it was noted that there was no active sand mining operation taking place within the confuses of the Pachadumar Sand Mining Project operated by M/s Jharkhand State Mineral Development Corporation Ltd. (JSMDC) at Mauza -
Pachadumar, Anchal - Ketar, District -Garhwa, Jharkhand.
b) Upon inspection, it was observed that the aforementioned sand mining project does not pose an existential threat to the wildlife of Kaimur Wildlife Sanctuary of Bihar and the adjoining area of Jharkhand. No documented evidence or information available on record indicates how the said sand mining project could potentially endanger wildlife in and around the project site. The allegation made by the applicant lacks substantive proof to believe that the said sand mining project could potentially endanger the wildlife of Kaimur Wildlife Sanctuary of Bihar and the adjoining area of Jharkhand.
c) The nearest distance of the aforementioned mining site from the Kaimur Wildlife Sanctuary in the State of Bihar is approximately 1.8 kilometers, not 900 meters as alleged by the applicant in the application.
d) The aforementioned project site is located outside the boundary of the eco-sensitive zone delineated around the Kaimur Wildlife Sanctuary in Bihar, as notified by the Government of India, Ministry of Environment, Forest and Climate Change, vide notification S.O.3549 (E) dated 30.12.2015.
e) The Distance Certificate issued by the Divisional Forest Officer, Garhwa North Forest Division, serves the purpose of determining whether the M/s Pachadumar Sand Mining Project is situated more than 250 meters away from the nearest reserved forest/protected forest boundary, along with providing other relevant details. As per Letter No-3012, Garhwa/dated- 02.06.2018, from the Divisional Forest Officer, Garhwa North Division, Garhwa, the distance from forest land to the M/s Pachadumar Sand Mining Project is reported as 900 meters. Furthermore, the SEIAA, Jharkhand, Minutes of Meeting held on
-07.05.2013, specify that the mining leasehold area/mining 36 project should not fall within a distance of 250 meters from reserved forest/protected forest boundaries.
f) According to the guidelines issued by the Ministry of Environment, Forest, and Climate Change, Government of India, regarding projects requiring Wildlife Clearance from the National Board for Wildlife, no Wildlife Clearance is deemed necessary for the said sand project.
g) The said sand mining project does not violate the provisions of the Eco-Sensitive Zone notified for the Kaimur Wildlife Sanctuary in the State of Bihar.
h) During the inspection, it was observed that there is no potential threat of water pollution as no mining activity was operational, and the land was completely dry.
i) Air Quality Monitoring reports submitted to the State Pollution Control Board, Jharkhand, for the said sand mining unit indicated that the Ambient Air Quality parameters were within the prescribed limits of the National Ambient Air Quality Standards."
Note:- A letter related to above facts has been sent to Regional Officer, JSPCB, Ranchi along with Circle Officer, Ketar report by Additional Collector Garhwa."
50. The Applicant has filed rejoinder affidavit dated 16.07.2024 placing on record a judgment of the Hon'ble Supreme Court dated 27.02.2024 passed in Civil Appeal No.255-257 of 2023 (The State of Uttarakhand & Ors. Vs. Nandan Singh Bora & Ors.), wherein the Hon'ble Supreme Court has reiterated its earlier directions in paras 7 and 8 of its judgment and directed that mining activities shall be prohibited in the areas notified as ESZ areas and, in any case, within a radius of one kilometer from the protected forest; needless to state that wherever the ESZ areas provides for distance of more than one kilometer, the restriction of mining shall also apply to such a larger area. Paras 7 and 8 of the judgment reads as under:-
"7. It is directed that the mining activities shall be prohibited in the areas notified as ESZ areas and, in any case, within a radius of one kilometer from the protected forest.
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8. Needless to state that wherever the ESZ areas provides for distance of more than one kilometer, the restriction of mining shall also apply to such a larger area."
51. The case of the Respondents is that Pachadumar Sand Mining Project is located at a distance of 1.8 kilometer from the boundary of the Kaimur Wildlife Sanctuary. As per the Eco-Sensitive Zone of the Kaimur Wildlife Sanctuary notified by the MoEF&CC on 30.12.2015, the Eco-Sensitive Zone of the Kaimur Wildlife Sanctuary extends upto two kilometers from the boundary of the said Wildlife Sanctuary but there is nothing on record to show that it is two kilometers at Garhwa also.
52. For reasons aforesaid, we dispose of the present Original Application with a direction to the SEIAA, Jharkhand, Respondent No.5, to re-examine the matter in the light of the observations made hereinabove.
53. I.As., if any, stand disposed of accordingly.
54. There shall be no order as to costs.
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B. Amit Sthalekar, JM ............................................. Dr. Arun Kumar Verma, EM September 24, 2024, Original Application No.137/2023/EZ AK 38