National Green Tribunal
Ghanai vs State Level Environment Impact ... on 27 April, 2023
Item No.01 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
(Through Physical Hearing with Hybrid VC Option)
Appeal No. 07/2022
(I.A. No. 50/2022 & I.A. No. 51/2022)
IN THE MATTER OF:
1. Ghanai
S/o Binde
R/o 1045, Naroghat, Kotra
Jalaun, Uttar Pradesh-285223
...Appellant
Versus
1. State Level Development Impact Assessment Authority,
Through its Chairman
Directorate of Environment
Vineet Khand-1, Gomti Nagar
Lucknow, U.P.-226010
Email: [email protected]
Ph. No. 05222300541
2. M/s R.N.S. Pvt. Ltd.
Through its partner Shri Devnath Singh
R/o 299, Munshipur, Maunath Bhanjan,
District Mau, U.P.
Email: [email protected];
3. District Magistrate, Jalaun, U.P.
District Magistrate Office Jalaun at Orai,
Uttar Pradesh-285123
Email: [email protected];
Contact: 05162252201
4. Chief Wildlife Warden, Government of U.P.
17, Rana Pratap Marg, Lucknow-226001
Email: [email protected],
contact: 05222206584
5. Uttar Pradesh State Pollution Control Board
Through its Member Secretary
Having its office at:
Building No. TC-12V, Vibhuti Khand, Gomti Nagar
Lucknow-226010
Ph: 0522-2720831
Email: [email protected];
Ph. No. 0522-2720831
Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.
-2-
6. Ministry of Environment and Forests and Climate Change
Through its Secretary,
Ministry of Environment and Forests and Climate Change
Indira Paryavaran Bhavan, Jor Bagh Road,
New Delhi-110003
Email ID: [email protected];
Ph. No. 011-24695132
7. M/s Globus Environment Engineering Services
326 AB Sahara Shopping Centre, Neelgiri Crossing,
Faizabad Road, Lucknow-226016
Email ID: [email protected];
Mob: 9984896973
8. M/s Green Enviro Engineers Pvt. Ltd.
Plot No. 316, Awadhpuri, Vikas Nagar
Near Sale Tax Office, Kanpur-208024
Email ID: [email protected];
M. 9670557744 ...Respondents
Counsel for the Appellant
Mr. Abhishek Yadav and Mr. Saurabh Yadav, Advocates.
Counsel for the Respondents:
Ms. Priyanka Swami, Advocate for Respondent No. 1.
Mr. Rahul Khurana, Advocate for Respondent No. 2.
Ms. Ruchi Kohli, Advocate for Respondent no. 6 (through VC).
None for Respondents No. 3, 4, 5, 7 to 8.
Present:
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER.
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER.
Reserved on : 06.04.2023
Date of Judgment : 27.04.2023
JUDGMENT
1. The Appellant, who is a resident of village Noraghat, Kotra, Jalaun and whose agricultural land is situated adjacent to the proposed leased site, has filed the present appeal challenging the Environmental Clearance (EC) dated 03.12.2021 granted under the Environmental Impact Assessment (EIA) Notification, 2006 by the Respondent no.1-State Environment Impact Assessment Authority (SEIAA), Uttar Pradesh to the Respondent No.2 M/s R.N.S. Pvt. Ltd. Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -3- (the Project Proponent) for proposed River Sand/Morrum mining, with sanctioned Lease Area 8.502 ha., at Gata No. 03GA, Khand No.-03, Village-Nandha, Orai, Jalaun, Uttar Pradesh and sought the following reliefs :-
"(i) Quash and set aside the impugned Environmental Clearance dated 03.12.2021 granted by the by the State Level Environment Impact Assessment Authority, U.P. (hereinafter referred to as "SEIAA") to M/s R.N.S. Pvt. Ltd.
partner Sri Devnath Singh bearing EC identification no. EC21B001UP187714, for proposed river Sand/Morrum mining at Gata No. 03GA, Khand No.-03, Village-Nandha, Orai, Jalaun, U.P., sanctioned Lease Area 8.502 ha. As contained in Annexure No. A-1 to this Appeal.
(ii) Direct the Chief Wildlife Warden, U.P. respondent no. 4 to declare the leased area and the adjoining areas frequented by the crocodiles for nesting be declared sensitive zone so that no further mining leases are granted at the said areas.
(iii) Pending the adjudication of the present Appeal, stay the operation and implementation of the impugned Environmental Clearance dated 03.12.2021.
(iv) Grant ad-interim ex-parte relief in terms of prayer clause (a) and (b);
(v) Any other orders may be passed in the interest of justice by this Hon'ble Tribunal as it deems appropriate." DETAILS ABOUT THE PROJECT IN QUESTION
2. The Project is for river sand/morrum mining at Gata No. 03GA, Khand No.-03, Village-Nandha, Orai, Jalaun, Uttar Pradesh with sanctioned Lease Area 8.502 hactares. An e-tender was floated for the project from 05.08.2019 to 08.08.2019 and auction for the tender was done on 14.08.2019. The Respondent no.2 was the highest bidder in the auction and on 24.10.2019 it was issued the letter of intent by the Mining Department, Jalaun Orai. Form-I application and subsequently, the EIA documents were submitted by the project proponent, duly prepared by the respondent no. 7 consultant on 02.09.2020 for issuance of environmental clearance. On 21.09.2020, presentation for grant of Terms of Reference ('TOR') was given. The SEAC issued the Terms of Reference (TOR) on Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -4- 04.11.2020. The Public hearing was conducted on 20.07.2021 by the project proponent through Respondent No..8, a professional environmental consultant. Report of public hearing was submitted on 27.01.2021. The final EIA report was submitted on 13.08.2021/27.08.2021 to the Member Secretary, SEAC/SEIAA, Uttar Pradesh. The SEAC considered the application and the EIA report in its meeting dated 12.10.2021 and recommended for grant of environmental clearance to the project proponent. The SEIAA accepted the recommendation of the SEAC in its meeting dated 23.11.2021 and issued the impugned environmental clearance on 03.12.2021 vide EC identification no. EC21B001UP187714. On 03.01.2022 lease deed was executed between the State of UP through the District Magistrate Jalaun and the project proponent for the Project.
GROUNDS OF CHALLENGE
3. The Appellant has challenged the EC for proposed mining on two grounds that the proposed mining leased area is habitat of crocodiles who use the area for nesting and any mining at the site would be highly detrimental to the wild fauna and their nesting grounds and that the leased site is a rocky terrain with rocks exposed therein and there is no sufficient mineable mineral deposit which would suffice for the volume approved for mining in the impugned EC which would lead to illegal mining from nearby areas and adjoining land of the appellant.
4. The Appellant has referred to the EIA notification 2006 and requirement of submission of application for environmental clearance in prescribed Form I and submitted that Form I Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -5- categorically asks for the details interalia related to whether the proposal involves clearance under the Wildlife (Protection) Act, 1972, whether the operation of the proposed project would lead to loss of native species or genetic diversity, whether the Area is used by protected, important or sensitive species of flora or fauna for breeding, nesting, foraging, resting, over wintering, migration. Form I further in the Note appended to it obligates that where the projects are to be located within 10 km of the National Parks, Sanctuaries, Biosphere Reserves, Migratory Corridors of Wild Animals, the project proponent shall submit the map duly authenticated by Chief Wildlife Warden showing features vis-à-vis the project location and the recommendations or comments of the Chief Wildlife Warden thereon, at the stage of EC. The appellant has averred that the Project Proponent and his consultants deliberately did not provide the requisite information and provided wrong information and concealed material facts with an objective to secure the EC. The requisite map with recommendations or comments of the Chief Wildlife Warden was also not submitted in the present case. As per section 9 of the Wildlife (Protection) Act, 1972, Crocodile is a protected animal, and it being a reptile, by virtue of Section 2(1) of the Wildlife (Protection) Act, 1972, their eggs are also animal for the purposes thereof and the crocodiles as well as their eggs are protected under the Wildlife (Protection) Act, 1972. The crocodiles have been frequenting the site in question since several years and have been using it for nesting and laying their eggs. The proposed mining site for which impugned environmental clearance has been granted is the habitat of the Crocodiles. By virtue of Section 29 of the Wildlife (Protection) Act, 1972, the habitat of the Crocodiles cannot be destroyed or diverted. Any mining done in pursuance of the impugned EC would fall foul of Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -6- the provisions of the Wildlife (Protection) Act, 1972.
5. The Appellant has referred to the lease deed dated 03.01.2022 in which the leased area have been identified and earmarked via pillar posts A, B, C, D, E and F and google map of the said area after plotting the said pillar posts, which have been annexed with the application and averred that the leased area has rocky terrain scattered throughout the area. The exposed rocks and boulders throughout the leased area establish the fact that there is no sufficient sand in the leased area. The concerned authorities did not physically inspect the leased area before leasing out the same for mining. Mining of river sand/morrum with rocks/boulders would be detrimental to the river and its topography. Since the leased area is replete of rocky terrain, illegal mining may be done by the project proponent from land of the appellant which is adjoining the leased area.
6. In support of the appeal the appellant has annexed photographs with geo co-ordinates and the pillar posts showing the crocodiles at the mining site and the rocky terrain of the leased area and submitted that mining in the area would be contrary to the celebrated principles of sustainable development and precautionary principles and would lead to huge degradation of environment, cause erosion, destruction of natural habitat of fauna, adversely affect the crocodile breeding and migration, spell disaster for crocodile conservation and would pose a grave threat to bio- diversity. The whole process of environmental impact assessment for grant of EC along with its outcome stands vitiated and the impugned EC being illegal may be set aside.
Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -7- REPORT OF THE JOINT COMMITTEE FILED IN COMPLIANCE OF ORDER DATED 18.02.2022
7. Vide order dated 18.02.2022, this Tribunal constituted a Joint Committee comprising of SEIAA and District Magistrate- Jalaun, Uttar Pradesh and directed the same to submit factual and action taken report within three months. The relevant part of the order reads as under:-
"In view of the above grievance of the applicant, it appears necessary to ascertain the factual position in the matter through a Joint Committee of the SEIAA and District Magistrate-Jalaun, Uttar Pradesh. The State PCB will be the Nodal agency for coordination and compliance. The Joint Committee may meet within four weeks and undertake site visit and look into the grievance of the applicant. Factual and action taken report may be furnished within three months by e-mail at judicialngt@ gov.in preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF."
8. In compliance thereof, the Joint Committee inspected the area on 10.05.2022 and submitted report vide email dated 24.05.2022. The relevant part of the report is reproduced as under:-
"Report of the Joint Committee in Compliance to the Hon'ble NGT order dated 18.02.2022 in AppealNo. 07/2022 in the Matter of "Ghanai Vs State Level EnVironmental Impact Assessment Authority (SEIAA),U.P &Ors.
X X X X X
2. Action taken by the Joint Committee:
In compliance of the above said order dated 18.02.2022, the Joint Committee comprising following officials visited the site on dated 10.05.2022:
1. ADM(F/R) Oral, Jalaun
2. Dr. B. B. Awasthi, Member of SEIAA, U.P.
3. Niranjan Sharma, R.O. UPPCB, Jhansi.
Besides the nominated members, Sh. Ranveer Singh, District Mining Officer, Mining Department (Jalaun) was also present on site for discussion. Committee's findings with regards to the site have been detailed in following part of the report.
River Betwa:
The Betwa river is also a tributary of Yamuna River. Its basin extends from longitude 77° to 81' E and latitude 23°8' to 26° 0' N. The Betwa river originates at an Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-8-
elevation of 470 m in the Bhopal District in Madhya Pradesh. After traversing a distance of 590 km, the river joins the Yamuna River near Hamirpur at an elevation of 106.68 m. The total catchment area of the Betwa river is 46,580 sq. km of which 31,971 sq. km (68.64%) lies in M.P. and 14,609 sq. km (31.36%) lies in U.P. The basin is saucer shaped with sandstone hills around the perimeter.
The river has 14 principal tributaries out of which 11 are completely in Madhya Pradesh and 3 lie partly in Madhya Pradesh and partly in Uttar Pradesh. The Halali and Dhasan rivers are the important tributaries of the Betwa River.
River Betwa in District Jalaun: The Betwa forms the boundary with Jhansi along the southern border from a point a few kilometres east of the town of Erichh to its junction with Dhasan. Its course, which up to the junction runs due east tends then somewhat to the north-east and it meanders along the south-eastern side of Tehsil Oral and Kalpi, separating them from Hamirpur. Like the Yamuna it leaves the district on Baoni border. It flows in a tortuous channel with many loops and bends. Its total length along the district border is approximately 96 kilometers, but from point to point it does not exceed 64 kilometers. Both the banks are fringed for some distance inland by unculturable ravines.
The Environmental Clearance for river bed mining at Gata No 03GA Khand No. 03 Village-Nandha, Tehsil - Oral District - Jalaun (U.P) (leased area 8.502 Ha) was obtained from SEIAA dated 03/12/2021.As per EC, Salient details of the Project site is presented below:
1 Name of Project M/s R.N.S Pvt. Ltd.
Proponent
2 Full Address of the R/o 299, Munshipur,
Proponent Maunath Bhajan, District-
Mau, U.P.
3 Name of Project River Sand/Morrum Mining
4 Project Location Gata No. 3-Ga, Khand No. 03,
(Gata No/Khand No.) Village Nandha, Tehsil-Orai,
District Jalaun (U.P.)
5 Name of River Betwa River
6 Name of Minor River Sand/Morrum Mining
Minerals
7 Sanctioned Lease 8.500 Ha
area (in Ha)
8 Total Proposed 8502 m3/annum
production per year
9 Sanctioned period of One year
mining lease
10 Method of Mining Opencast, semi-Mechanized
11 Production of 378 m3/day
Mine/day
12 Nos of working days 225
13 Working hours per 8 hrs
Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.
-9-
day
14 Nos of Vehicles 37
movement per day
15 Ultimate of depth of 1.05 m
mining
16 Water Requirement Purpose
Requirement
(KLD)
Drinking 0.72 KLD
Suppression of 3.78 KLD
dust
Plantation 0.5 KLD
Other (if any) -
Total 5.0 KLD
Specific Observations of M/s R.N.S. Pvt Limited, Gata No.-3 Ga, Khand No 03 village Nandha, Tehsil-Orai district Jalaun (U.P)
1. As reported by the Mining Officer that no restoration plan has been submitted by Mining Project Proponent neither executed by District Mining Department Jalaun.
2. The Project proponent has not submitted compliance reports of general conditions and specific conditions of EC granted by SEIAA for effective implementation of environmental plan.
OBSERVATIONS MADE BY THE JOINT COMMITTEE DURING SITE VISIT 10.05.2022:
1. In compliance of Hon'ble NGT order, the District Magistrate Jalaun At Orai have Constituted The Committee vide letter no 60/NGT OA-07/22 Dated 28.04.2022 (ANNEX) with nomination demand of specialist officer of Forest Department (Jeev Jantu) U.P in this continuation the Member secretary UP Pollution Control board Lucknow also requested to Principle chief Forest conservator (Jeev Jantu) U.P Vide letter no.
H75253/C-2/NGT. Gen-07/22 Dated 09.05.2022 to nominate the Special Expert Officer of Crocodile (ANNEX).
2. The Committee Members visited the betwa river bed sand mining site which is situated at village Nandha, tehsil Orai District Jalaun on 10 May 2022 in absence of Expert Officer of Crocodile.
3. During the visit, no mining activities were observed at site and found that sand mining site is not submerged with water into the river Betwa.
4. During the visit, committee observed no ponding effect on sand mining site.
5. During the visit of Committee observed, That the Geo-Coordinates Pillars for demarcation of sand mining area is not available and indicative points of demarcation of the sand mining area is flashed by lime laying temporary.
Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -10-
6. Primary survey of flora and fauna study has not been carried out by the project proponent as per EC terms and conditions.
7. The Another Mining Area is being Used for Sand Mining at Gata No- 522 Gha Which is situated at near by the border of Jhansi and Jalaun District at river betwa and it is 300.00 Meter away from Gata No- 3 ga Khand No-3 Nandha Orai Jalaun and situated upstream of river betwa District Jhansi.
8. Another Mining area is in progress for sand mining at Gata No- 1191/2 Khand No-4 Sikrivyas Orai Jalaun which-is Situated down stream of river betwa from Gata No-3 ga Khand No-3 Nandha Oral Jalaun and it is situated within 500.00 meter away in District Jalaun.
9. The water flow in river betwa was observed in south direction adjoining said sand mining area of RNS PVT LTD Jalaun.
10. The presence of crocodile in River betwa near by the said sand mining lease area were not specify in absence of expert officer (Jeev Jantu). So, the specialist officer of forest department, U.P.can certify the possibilities/non- Possibilities of crocodiles nearby the flowing water area of River Betwa.
Recommendations
1. The project proponent (M/S R.N.S. Pvt Limited) should not be permitted the operation of mining till obtain consent to operate from concerned UPPCB,
2. The Project proponent should ensure compliance of general conditions and specific conditions granted the EC by SEIAA to effective implementation of environmental plan.
3. The project proponent should obtain permission from CGWA for abstraction of the ground water.
4. The District Mining Department should ensure restoration plan before starting the mining activities by project proponent."
REPLY/OBJECTIONS TO THE JOINT COMMITTEE REPORT FILED BY THE APPELLANT
9. The appellant filed objections to the Report of the Joint Committee vide email dated 09.08.2022. The Appellant submitted that a specialist officer from the forest department was requested from the Principal Chief Forest Conservator (Jeev Jantu), U.P.to accompany the committee to the site for factual verification as to whether the site leased for proposed mining under the impugned environmental clearance was habitat for crocodiles as averred in the Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -11- Appeal but no such officer was deputed. The Joint Committee observed in its report that the specialist officer of forest department, U.P. can certify the possibility/non-possibility of crocodiles nearby the flowing water area of River Betwa. On 02.02.2022 a team of forest officials along with local administration had visited the site. The appellant preferred an application on 07.05.2022 under the Right to Information Act, 2005 to the Chief Conservator of Forest, who wrote a letter to Divisional Forest Officer, Jalaun to provide the information sought but the same has not been provided. The report does not address the two primary grievances raised in the appeal and the Joint Committee may be directed to verify the factual position as to the mining site being habitat of crocodiles, and sufficiency of mineable minerals at the proposed site.
10. Vide order dated 12.08.2022, notices, alongwith the application and report of the Joint Committee were ordered to be issued to the respondents no. 2, 3, 4, 6, 7, 8 requiring them to file their response/reply to the allegations made in the application and observations made in the report of the Joint Committee within one month. The appellant filed the affidavit of service and office also made report that the respondents had been duly served.
11. Since one of the grounds of challenge to the environmental clearance is that the mining site is the habitat of crocodiles which is protected under Section 9 of Wild Life (Protection) Act, 1972, vide order dated 21.09.2022 Joint Committee comprising of representative of Principal Chief Conservator of Forests (Wild Life), State of Uttar Pradesh and Chairman, Betwa River Board, State of Uttar Pradesh was directed to meet within three weeks, undertake site visits, associate the applicant and representative of the project Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -12- proponent, verify the factual position as to whether area in question is habitat of the crocodiles or whether mining activities would be having adverse impacts on crocodile or any other reptiles/wildlife's habitat, breeding etc. and furnish Factual Verification Report within one month by e-mail at [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
12. In view of the mandate in Section 20 of the National Green Tribunal Act, 2010 requiring this Tribunal to apply precautionary principle and also the provisions made in Section 19 (4) (j) of the National Green Tribunal Act, 2010 empowering this Tribunal to require any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I thereof, respondent no. 2 was directed to desist from commencing mining activity in the mining site leased out to it and the District Magistrate and the Superintendent of Police, Jalaun were also directed to take appropriate steps to ensure that no illegal mining took place in the mining site in question.
REPORT DATED 31.10.2022 OF THE JOINT COMMITTEE
13. In compliance thereof the Joint Committee submitted report vide email dated 31.10.2022 the relevant part of which reads as under:-
"JOINT SITE VISIT REPORT FILED VIDE EMAIL DATED 31.10.2022ek0 jk"Vªh; gfjr vf/kdj.k] ubZ fnYyh esa ;ksftr Appeal No.07/2022 (I.A. No. 50/2022 & I.A. No. 51/2022) Ghanai vs Environment Impact Assessment Authority (SEIAA) UP & Ors esa ikfjr vkns'k fnukad 21-09-22 ds Øe esa la;qDr fujh{k.k vk[;k tuin&tkykSu] rglhy&mjbZ ds vUrxZr LFkku xzke&uU/kk ds Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-13-
xkVk la[;k&3x] [k.M la0&03] jdck&8-502 gs0 21 ,dM+ dk ckyw [kuu iV~Vk esllZ vkj0,u0,l0 izkbosV fyfeVsM ikVZuj Jh nsoukFk flag iq= Jh jkevo/k flag fuoklh&229 eqa'khiqj eÅukFkHkatu eÅ] m0iz0 ds i{k esa 2022 ls 2027 rd ds fy;s Lohd`r fd;k x;k gSA Jh ?kubZ iq= fcUns fuoklh&1045] eq0 ukjks?kkV] dLck&dksVjk] tkykSu] m0iz0 }kjk ek0 jk"Vªh; gfjr vf/kdj.k] ubZ fnYyh esa ;ksftr Appeal No.-07/2022 (I.A. No. 50/2022 & I.A. No. 51/2022) Ghanai vs Environment Impact Assesment Authority (SEIAA) UP & Ors esa fnukad 21-09-2022 dks vkns'k ikfjr fd;k x;kA ikfjr vkns"k dk izHkkoh va'k fuEu izdkj gS& "One of the grounds of challenge to the environmental clearance is that the mining site is the habitat of crocodiles which is protected under Section 9 of Wild Life (Protection) Act, 1972. We consider it appropriate to seek a Factual Verification. Report in this regard from the Joint Committee comprising of representative of Principal Chief Conservator of Forests (Wild Life), State of Uttar Pradesh and Chairman, Betwa River Board, State of Uttar Pradesh. The Joint Committee shall meet within three weeks, undertake site visits, associate the applicant and representative of the project proponent, verify the factual position as to whether area in question is habitat of the crocodiles or whether mining activities will be having adverse impacts on crocodiles or any other reptiles/wildlife's habitat, breeding etc."
iz/kku eq[; ou laj{kd] oU; tho] m0iz0 y[kuÅ ds i=kad&1178@10&1] fnukad 07-10--2022 }kjk eq[; ou laj{kd] cqUnsy[k.M tksu] >kalh dks iz'uxr izdj.k esa la;qDr LFkyh; fujh{k.k ,oa okafNr dk;Zokgh fd;s tkus gsrq ukfer fd;k x;kA iz'uxr [kuu iV~Vk LFky ds la;qDr fujh{k.k gsrq Chairman, Betwa River Board, State of Uttar Pradesh ds izfrfuf/k ukfer fd;s tkus gsrq eq[; vfHk;ark] csrok ifj;kstuk] flapkbZ ,oa ty lalk/ku foHkkx] m0iz0] >kalh dks i= la0&1033@10 dsl ¼,u0th0Vh0½] fnukad 12-10- 2022 Hkstk x;k ,oa fnukad 21-10-2022 dh frfFk la;qDr fujh{k.k gsrq izLrkfor dh x;hA rRØe esa ty 'kfDr ea=ky;] Hkkjr ljdkj ds i= la0&,Q0ua0&vkj0&24011@33@2022&ih0vkj0] fnukad 14-10-2022 ls eq[; vfHk;ark] csrok fjoj cksMZ] uUnuiaqjk] >kalh] m0iz0 dks izfrfuf/k ukfer fd;k x;kA eq[; vfHk;ark] csrok unh ifj"kn] >kalh ds i= la0&256 eq0v0@cs0u0i0@ou foHkkx] fnukad 17-10-2022 ds }kjk izLrkfor fujh{k.k frfFk fnukad 21-10-2022 ds LFkku ij fnukad 20-10-2022 fd;s tkus gsrq fy[kk x;k] rnkuqlkj fnukad 20-10-2022 vijkUg 03%00 cts dk le; iz'uxr [kuu iV~Vk LFky ds la;qDr fujh{k.k gsrq fuf'pr fd;k x;kA izdj.k esa fnukad 20-10-2022 vijkUg 03-00 cts eq[; ou laj{kd] cqUnsy[k.M tksu] >kalh izfrfuf/k (Principal Chief Conservator of Forests, Wild Life, State of Uttar Pradesh) eq[; vfHk;ark csrok unh ifj'kn] >kalh izfrfuf/k (Chairman, Betwa River Board, State of Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -14- Uttar Pradesh)] izHkkxh; oukf/kdkjh mjbZ] ftyk [kuu vf/kdkjh mjbZ] Jh ?kubZ iq= fcUns fuoklh&1045] eq0 ukjks?kkV] dLck&dksVjk] tkykSu] m0iz0 ¼f"kdk;rdrkZ½] Jh vkyksd flag] izfrfuf/k esllZ vkj0,u0,l0 izkbosV fyfeVsM ikVZuj Jh nsoukFk flag iq= Jh jkevo/k flag fuoklh&229 eqa'khiqj eÅukFkHkatu eÅ] m0iz0 ,oa jktLo fujh{kd vkfn dh mifLFkfr esa iz'uxr [kuu LFky dk fujh{k.k fd;k x;kA ftyk [kuu vf/kdkjh }kjk voxr djk;k x;k fd iz"uxr [kuu iV~Vk o'kZ 2022&23 esa fnuakd 03-01-2022 ls 02-01-2027 rd dh vof/k ds fy;s Lohd`r gS ijUrq vHkh rd [kuu dk;Z vkjEHk ugha fd;k x;k gSA blds iwoZ ;g [kuu [k.M@iV~Vk fnukad 21- 11-2005 esa Lohd`r fd;k x;k tksfd fnukad 16-10-2006 esa leiZ.k dj fn;k x;k FkkA izdj.k esa ek0 jk"Vªh; gfjr vf/kdj.k] ubZ fnYyh esa vihydrkZ Jh ?kubZ iq= fcUns fuoklh&1045] eq0 ukjks?kkV] dLck&dksVjk] tkykSu] m0iz0 }kjk ekSds ij fn;s x;s vius fyf[kr c;ku esa dgk gS fd mUgksaus ek0 ,u0th0Vh0 esa dksbZ vihy nk;j ugha dh gSA Jh ?kubZ }kjk ,d "kiFk&i= fnukad 15-10-2022 Hkh fn;k gS] ftlesa mUgksaus mDr vihy ;ksftr u fd;s tkus ,oa vihy ls dksbZ ljksdkj u gksus ds ckjs esa fy[kk gSA iz"uxr LFky ij fnukad 20-10-2022 dks la;qDr fujh{k.k ds le; unh ,oa unh ds ckgj ckyw {ks= esa exjePN o vU; typjksa vkfn ds ik;s tkus ds ckjs esa xgu fujh{k.k fd;k x;k] ijUrq dgha exePN ugha fn[kkbZ fn;sA fujh{k.k ds le; mifLFkr LFkkuh; xzkeh.kksa }kjk crk;k x;k fd bl {ks= esa cgqrk;r esa exjk ¼exjePN dk LFkkuh; uke½ fn[kkbZ nsrs gSa rFkk vU; typjksas@ljhl`iksa@vU; oU; thoksa ds ckjs esa iwaNs tkus ij mUgksaus vufHkKrk O;Dr dh] lkFk gh ;g Hkh crk;k fd vHkh vijkUg gS] T;knkrj exj izkr%dky esa fn[kkbZ nsrs gSaA xzkeh.kksa }kjk {ks= esa exjePN izkr%dky esa ik;s tkus dh tkudkjh fn;s tkus dh iqf"V gsrq fnukad 28-10-2022 dks izkr%dky 07%00 ls 09%00 cts ds e/; iqu% igaqpdj iz"uxr LFky dk xgurk ls fujh{k.k fd;k x;kA unh esa] unh ds fdukjksa ij] ckyw ds {ks= esa iSny ,oa ikuh esa uko }kjk fujh{k.k ds nkSjku exjePN lh/ks rkSj ij dgha ugha fn[kkbZ fn;s ijUrq unh ds fdukjs ls ckyw dh rjQ ,oa nksuksa fdukjksa ds chp tek ckyw esa exjePN ds in fpUg o ljdus&f?klVus ds fu"kku Li"V :i ls ik;s x;s] ftlds ekSds ij QksVksxzk¶l Hkh fy;s x;sA vr% bl vk'k; dh iqf"V gksrh gS fd bl {ks= esa exjePN ik;s tkrs gSaA fu"d"kZ Lo:i bl rF; ls bUdkj ugha fd;k tk ldrk fd iz'uxr {ks= esa exjePN ugha gSaA ijUrq bl {ks= esa exjePN dk l?ku izkd`rokl (Natural Habitat) ik;k tkuk ifjyf{kr ugha gksrk gSA ekSds ij fujh{k.k ds le; orZeku tkjh [kuu iV~Vs ds lkis{k [kuu dh xfrfof/k ugha ik;h x;hA"
REPLY BY RESPONDENT NO. 2- THE PROJECT PROPONENT Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-15-
14. Pursuant to notice reply has been filed by the respondent No.2 (the Project Proponent) vide email dated 31.10.2022. In his reply the respondent No.2 has submitted that the Respondent No.2 is bonafide lessee who submitted its bid in the auction in response to e-Tender floated for mining by the Office of District Magistrate, Jalaun, Uttar Pradesh (Mining Division) in August, 2019. As the Respondent No.2 submitted highest bid, a Letter of Intent (LOI) dated 24.10.2019 was issued by the Office of the District Magistrate, Jalaun, Uttar Pradesh (Mining Division). The Respondent No.2 deposited an amount of Rs. 87,48,558/- (Rupees Eighty-Seven Lacs, Forty-Eight Thousand, Five Hundred and Fifty-Eight) as security with the State Government, Uttar Pradesh in August, 2019. In terms of LOI, the Respondent No.2 applied for EC through accredited Consultants. The EC dated 3.12.2021 was granted after inspection of the site by the concerned Officers. It is believed that such e- Tender(s) are being issued by the State after due inspection by and satisfaction of the concerned Department and the site is fit for the activity for which bids have been invited. With such belief, the respondent No.2 submitted its bid. For any discrepancy/deficiency, the respondent No.2 should not be put to bear any loss. The Respondent No.2 is already under huge financial loss due to deposit of earnest money, security amount, subsequent periodical installments and other payments/ expenses without any mining operation on ground and consequent earning.
15. Reply has been filed by respondent No.3 the District Magistrate, Jalaun vide email dated 31.10.2022 and the relevant part of the same reads as under :-
Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-16-
"ek0 jk"Vªh; gfjr vf/kdj.k iz/kku ihB] ubZ fnYyh esa izLrqr ewy izkFkZuk i= la[;k&07/2022 (vkbZ0,0 ua0 50/2022 o vkbZ0,0 ua0 51/2022) ?kubZ cuke LVsV ysoy ,UokbjeUV bEiSDV vfllesUV vFkkWfjVh (SEIAA) m0iz0 o vU; dh izLrjokj vk[;Ka izLrj la0&1 ;g fd bl izLrj esa ;kph }kjk fd;k x;k dFku vLohdkj gSA tuin tkykSu dh rglhy mjbZ xzke uU/kk xkVk la[;k&3x jdok 08-502 gs0 ckyw@ekSje [kuu iVVk gsrq laxfBr gSA mDr [kuu {ks= esa 'kklu dh ubZ [kuu uhfr ds vUrxZr fuxZr 'kklukns'k fnukad 14-08-2017 o 20-09- 2019 ds Øe esa bZ&fufonk lg bZ&uhykeh ds ek/;e ls O;ofLFkr djk;s tkus ds fy, ou izHkkx tuin tkykSu ls ou vukifRr izek.k i= la0 519 fnukad 14-08-2017 izkIr gksus ds mijkUr 'kkukns'k esa fufnZ"V funsZ'kksa ds vuqlkj {ks= esa mi[kfut dh miyC/krk dh tkap la;qDr lfefr ls djkdj okf"kZd [kuu ;ksX; ek=k dh vk[;k fnukad 26-06- 2019 izkIr gq;h rFkk iz'uxr [kuu {ks= dks bZ&fufonk lg bZ&fuykeh ds ek/;e ls 05 o"khZ; [kuu iVVk fn;s tkus gsrq foKfIr 258@,e0,e0lh0&30@2018&19 fnukad 04- 07-2019 izdkf'kr djkdj uksMy ukfer laLFkk ,e0,l0Vh0lh0 ds ek/;e ls bZ&fufonk lg bZ&fuykeh dh dk;Zokgh lEiUu djk;h x;h] ftlesa ;kph dh loksZPp nj :0 312@& izfr?kuehVj izkIr gq;hA izkIr loksZPp bZ&fufonk nj ij ;kph dks iz'uxr [kuu {ks= esa [kuu iVVk LohÑr fd;s tkus gsrq ysVj vkWQ bLVsUV ¼lgefr i=½ la[;k&574@[kfut&,e,elh&30 ¼bZ&Vs.Mj@2019½ fnukad 24-10-2019 fuxZr dj [kuu iVVk fu"iknu gsrq LohÑr [kuu ;kstuk ,oa i;kZoj.k LoPNrk izek.k i= izLrqr djus ds fy;s funsZf'kr fd;k x;kA ;kph }kjk iz'uxr [kuu {ks= ds fy;s LohÑr [kuu ;kstuk fnukad 30-06-2020 ,oa i;kZoj.k LoPNrk izek.k i= fnukad 03-12- 2001 izLrqr djus ij fu;ekuqlkj [kuu {ks= dk lhekadu djkdj ;kph ds i{k esa tuin tkykSu rglhy dkyih xzke uU/kk ds xkVk la0 3x [k.M la0&3 jdok 08-502 gs0 {ks= ij fnukad 03-01-2022 ls fnukad 02-01-2027 rd ikap o"kZ dh vof/k ds fy;s LohÑr@fu"ikfnr fd;k x;k gSA izLrj la0&2 ;g fd ;kph }kjk bl izLrj esa fd;k x;k dFku vLohdkj gSA iz'uxr [kuu iVVk m0iz0 mi[kfut ¼ifjgkj½ fu;ekoyh 1963 ;Fkk la'a kksf/kr 2021 ,oa laxr 'kklukns'k fnukad 14-08-2017 o 20-08-2019 esa mfYyf[kr izkfo/kkuksa ds vUrxZr leLr vkSipkfjdrkvksa dks iw.kZr djkrs gq;s fu;ekuqlkj LohÑr@fu"ikfnr fd;k x;k gS] ftldk foLr`r fooj.k izLrj&1 esa mfYyf[kr fd;k x;k gSA izLrj la0&3 ;g fd bl izLrj esa ;kph dk Lo;a dFku gS] ftl ij fdlh fVIi.kh dh vko';drk ugha gSA foLr`r fooj.k izLrj&1 esa mfYyf[kr gSA izLrj la0&4 ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh vko';drk ugha gSA izLrj la0&5 ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh vko';drk ugha gSA izLrj la0&6 ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-17-
vko';drk ugha gSA izLrj la0&7 ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh vko';drk ugha gSA izLrj la0&8 ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh vko';drk ugha gSA izLrj la0&9 ;g fd bl izLrj esa ;kph dk Lo;a dFku gS] ftl ij fdlh fVIi.kh dh vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&10 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&11 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&12 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ek0 mPpre U;k;ky; ds la0&13 vkns'k dk mYys[k fd;k x;k gS] ftl ij fdlh fVIi.kh dh vko';drk ugha gS rFkk 'ks"k dFku ;kph dk Lo;a dk gS] ftl ij fdlh fVIi.kh dh vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&14 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&15 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&16 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&17 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&18 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&19 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&20 vko';drk ugha gSA izLrj ;g fd bl izLrj esa ;kph dk Lo;a dFku gS] ftl ij la0&21 fdlh fVIi.kh dh vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&22 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&23 vko';drk ugha gSA izLrj ;g fd bl izLrj esa ;kph dk Lo;a dFku gS] ftl ij la0&24 fdlh fVIi.kh dh vko';drk ugha gSA foLr`r fooj.k izLrj la0&1 esa mfYyf[kr fd;k x;k gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&25 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&26 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&27 vko';drk ugha gSA izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh la0&28 vko';drk ugha gSA izLrj ;g fd bl izLrj esa ;kph dk Lo;a dFku gS] ftl ij la0&29 fdlh fVIi.kh dh vko';drk ugha gSA Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.
-18-
izLrj ;g fd bl izLrj esa ;kph dk Lo;a dFku gS] ftl ij
la0&30 fdlh fVIi.kh dh vko';drk ugha gSA
izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh
la0&31 vko';drk ugha gSA
izLrj ;g fd bl izLrj esa ;kph dk Lo;a dFku gS] ftl ij
la0&32 fdlh fVIi.kh dh vko';drk ugha gSA foLr`r fooj.k izLrj
la0&1 esa mfYyf[kr fd;k x;k gSA
izLrj ;g fd bl izLrj esa ;kph dk Lo;a dFku gS] ftl ij
la0&33 fdlh fVIi.kh dh vko';drk ugha gSA foLr`r fooj.k izLrj
la0&1 esa mfYyf[kr fd;k x;k gSA
izLrj ;g fd bl izLrj esa ;kph dk Lo;a dFku gS] ftl ij
la0&34 fdlh fVIi.kh dh vko';drk ugha gSA foLr`r fooj.k izLrj
la0&1 esa mfYyf[kr fd;k x;k gSA
izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh
la0&35 vko';drk ugha gSA
izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh
la0&36 vko';drk ugha gSA
izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh
la0&37 vko';drk ugha gSA
izLrj ;g fd ;kph }kjk bl izLrj ij fdlh fVIi.kh dh
la0&38 vko';drk ugha gSA
izLrj ;g fd mijksDr rF;ksa ls Li"V gS fd ;ksftr vihy ds
la0&39 izLrj&39 ds xzkmUM , yxk;r MhMh rd fd;s x;s dFku
fujLr fd;s tkus ;ksX; gSA
mDr ds vfrfjDr ;g Hkh myys[kuh; gS fd ;kph Jh ?kubZ iq= Jh foUns }kjk 'kiFk i=@izkFkZuk i= izLrqr dj ;g voxr djk;k x;k gS fd mlds }kjk mDr ;kfpdk@vihy ek0 vf/kdj.k esa izLrqr ugha dh x;h gS vkSj u gh blds laca/k esa dksbZ tkudkjh gSA mijksDr of.kZr rF;ksa ds vkyksd esa ek0 vf/kdj.k esa ;ksftr vihy fujLr fd;s tkus ;ksX; gSA Ñi;k vihy fujLr djus dh Ñik djsaA"
16. Arguments were heard and order was reserved vide order dated 25.11.2022 but on going through the material on record, this Tribunal considered it necessary to give opportunity to the appellant as well as the respondents to file objections, if any, against the report of the Joint Committee comprising of representatives of the PCCF (Wildlife) and the Chairman, Betwa River Board, U.P. The specific response of Respondent No. 1-the SEIAA, U.P., Respondent No. 4-Chief Wildlife Warden, Government of U.P., and Respondent No. 6-the MoEF&CC to the report of the above said Joint Committee Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -19- was also considered to be essential for just and proper adjudication of the questions involved in the case.
17. Pursuant to order dated 23.02.2023 reply has been filed by Respondent No. 4-Chief Wildlife Warden, Government of U.P vide email dated 09.03.2023 and by Respondent no. 1-SEIAA vide email dated 14.03.2023.
18. In the reply filed on behalf of Respondent No. 4-Chief Wildlife Warden, Government of U.P., report dated 31.10.2022 of the Joint Committee has been reiterated.
19. In the reply filed vide email dated 14.03.2023, Respondent no. 1-SEIAA has submitted that it has no objection to Joint Committee Report dated 25.05.2022 and that it was not aware of the presence of any such crocodile inhabitance in the said cluster at the time when EC was granted and the same never came to the knowledge during pendency of EC proceeings and it will abide by the order passed by this Tribunal with regard to the EC.
20. This Tribunal noticed that in its report dated 31.10.2022, the Joint Committee had mentioned that appellant submitted written statement and affidavit dated 15.02.2022 that he had not filed any appeal before this Tribunal but the present appeal is supported by an affidavit which purports to have been duly sworn by the appellant. Accordingly, vide order dated 15.03.2023, personal appearance of the appellant before this Tribunal physically or through VC was ordered for 06.04.2023.
21. In compliance with order dated 15.03.2023 the appellant appeared before this Tribunal through VC and admitted that he had Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -20- filed the present appeal but stated that now he does not apprehend any loss to him and illegal mining in his land and he does not want to continue with the present appeal. The appellant has accordingly prayed that the appeal may be dismissed as withdrawn.
22. We have heard learned Counsel for the parties and gone through the material on record carefully.
23. Learned Counsel for the appellant has submitted that the appeal may be dismissed as withdrawn while learned Counsel for the respondents have submitted that respondents will abide by the order of this Tribunal and this Tribunal may pass sucgh order as it considers appropriate.
24. The question which first arises for consideration is as to whether the appellant is entitled as a matter of right and as being dominus litis to withdraw the appeal at the present stage of the proceedings.
25. Section 16 of the National Green Tribunal Act, 2010, which confers appellate jurisdiction on this Tribunal reads as under:-
"16. Tribunal to have appellate jurisdiction.--Any person aggrieved by,--
(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(d) an order or decision made, on or after the Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-21-
commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (36 of 1977);
(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980 (69 of 1980);
(f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);
(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment (Protection) Act, 1986 (29 of 1986);
(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);
(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986 (29 of 1986);
(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2002 (18 of 2003), may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days."
26. Section 19 of the National Green Tribunal Act, 2010 which specifies procedure and powers of Tribunal reads as under:-
"19. Procedure and powers of Tribunal.---(1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-22-
guided by the principles of natural justice.
(2) Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure.
(3) The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872 (1 of 1872).
(4) The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decision;
(g) dismissing an application for default or deciding it ex parte;
(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte;
(i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act;
(j) pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I;
(k) any other matter which may be prescribed.
(5) All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)."
Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -23-
27. The National Green Tribunal Act, 2010 and the National Green Tribunal (Practice and Procedure) Rules, 2011 do not contain any provision permitting withdrawal of any application or appeal. Order 23 of the Code of Civil Procedure, 1908 incorporates provisions for withdrawal of civil suit but order 41 and order 42 of the Code of Civil Procedure, 1908, which embody the procedure for hearing of first and second appeals, do not contain any provision regarding withdrawal of civil appeal. In Bijayananda Patnaik vs. Satrughna Sahu and others AIR 1963 SC1566:1964 SCR (2) 538 it was held by Hon'ble Supreme Court that Order 23 Rule (1) applies to withdrawal of civil appeal and an appellant has power to withdraw the appeal at any stage. However, Section 19 (1) of the National Green Tribunal Act, 2010 declares that this Tribunal is not bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) although it has to abide by the principles of natural justice. It is pertinent to observe that broadly speaking applications or appeals under the National Green Tribunal Act, 2010 fall in two categories those based on personal injury/cause of action and seeking compensation/restitution on the basis thereof and those based on public injury/cause of action and seeking remediation thereof. While there may not be any serious objection to withdrawal of an application or appeal based on personal injury/cause of action and seeking compensation/restitution on the basis thereof in view of compromise or change of circumstances but it would be against public policy and also public interest to allow withdrawal of application or appeal based on public injury/cause of action seeking remediation thereof cannot be allowed to be withdrawn with out any valid reason just by exercise of personal choice for serving Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -24- personal interest and it would serve the public interest and the cause of protection and improvement of environment if permission for withdrawal of such application or appeal is declined.
28. In Sheela Barse v. Union of India ;AIR 1988 SC 2211:
(1988) 4 SCC 226 Law Finder Doc Id # 89691 the main public interest litigation petition was filed by Sheela Barse to highlight the gross violations of the constitutional and statutory rights of a large number of children in the country who were suffering custodial restraints in various parts of the country and for the protection and enforcement of their rights. Sheela Barse filed Miscellaneous Petition for leave to withdraw the main public interest litigation on grounds which were held by Hon'ble Supreme Court to be untenable. The question agitated related to the aspect whether a public-minded person who brings such an action is entitled, as of right, to withdraw the proceedings from the court. The Applicant contended that not only that leave for withdrawal cannot be refused but also that the main petition cannot be continued by any other citizen or organisation. Hon'ble Supreme Court noticed that the prayer, if granted, would frustrate the important issues the main petition had served to highlight in the matter of the status and enforcement of the laws enacted for the protection and welfare of the children in the country. The proceedings espoused the cause of a large number of suffering children who, on account of the traditional inertia against reform, the bureaucratic and official apathy, insensitivity to and lack of human consideration for the lot of the suffering children and the lack of proper perceptions of the values and ideology of the legislation concerning children even on the part of law enforcing agencies, were being denied the protection Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-25-
of their constitutional and statutory rights. Hon'ble Supreme Court observed that the proceedings in a public interest litigation are, therefore, intended to vindicate and effectuate the public interest by prevention of violation of the rights, constitutional or statutory, of sizeable segments of the society, which owing to poverty, ignorance, social and economic disadvantages cannot themselves assert - and quite often not even aware of - those rights and the "rights" of those who bring the action on behalf of the others must necessarily be subordinate to the "interests" of those for whose benefit the action is brought. Acknowledgement of any such status of a Dominus- Litis to a person who brings a public interest litigation will render the proceedings in public interest litigations vulnerable to and susceptible of a new dimension which might, in conceivable cases, be used by persons for personal ends resulting in prejudice to the public-weal. Hon'ble Supre Court also noticed that in the proceedings Hon'ble Supreme Court had already gone through and had initiated an elaborate exercise as indicated in the orders excerpted earlier and held that the petition could not be permitted to be abandoned at that stage and only a private litigant could abandon his claims. Accordingly, Hon'ble Supreme Court refused permission for the withdrawal of the petition and directed that the applicant be deleted from the array of parties in this proceeding and the proceedings be proceeded with a direction to the Supreme Court Legal Aid Committee to prosecute the petition together with the aid and assistance of such persons or agencies as the Court may permit or direct from time to time.
29. Observations made by Hon'ble Supreme Court in the above mentioned case are also relevant and applicable to the question of Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -26- withdrawal of appeal by the appellant in the present case. The right of the appellant to withdraw appeal filed by challenging EC for serving public interest in protection and improvement of environment must necessarily be subordinate to the "interests" of those for whose benefit the action was brought. According status of a Dominus-Litis to the appellant, who filed appeal for serving public interest of protection and improvement of environment, will render the proceedings vulnerable to and susceptible of a new dimension of use thereof for personal ends resulting in serious prejudice to the public interest of protection and improvement of environment. In the present proceedings this Tribunal has already gone through and has initiated an elaborate exercise in respect of the challenge to validity of EC as indicated in the orders passed on the appeal and the challenge to EC in the present proceedings cannot be permitted to be abandoned at this stage. In theses facts and circumstances of the case the appellant can not be permitted to withdraw the appeal and request for dismissal of the appeal as withdrawn is declined.
30. Moreover, this Tribunal has been conferred power to take suo motu cognizance in discharge of its functions under the National Green Tribunal Act, 2010. In Municipal Corporation of Greater Mumbai v. Ankita Sinha (SC) : AIR 2021 Supreme Court 5147 :
Law Finder Doc Id # 1890858 Hon'ble Supreme Court considered the question whether this Tribunal has the power to exercise Suo Motu jurisdiction in discharge of its functions under the National Green Tribunal Act, 2010 and held that this Tribunal is vested with suo motu power in discharge of its functions under the National Green Tribunal Act, 2010. The relevant extracts from the conclusion Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-27-
in that case are reproduced as under:-
"30. The NGT Act, when read as a whole, gives much leeway to the NGT to go beyond a mere adjudicatory role. The Parliament's intention is clearly discernible to create a multifunctional body, with the capacity to provide redressal for environmental exigencies. Accordingly, the principles of environmental justice and environmental equity must be explicitly acknowledged as pivotal threads of the NGT's fabric. The NGT must be seen as a sui generis institution and not unus multorum, and its special and exclusive role to foster public interest in the area of environmental domain delineated in the enactment of 2010 must necessarily receive legal recognition of this Court.
31. The environmental impacts on climate change are gaining increasing visibility in the shape of uncertain rains, species extinction, loss of natural habitat and so on. These also have the propensity to diminish fresh water resources, reduce agricultural yields and impact public health, particularly in the cities. The flooding and erosion in riverine and coastal areas are matters of serious concern. Governmental assessment of India's increased vulnerability to such changes in the near future also exists[41*] with many countries declaring climate emergencies and many others being urged to follow suit[42*].
[41* Indian Network for Climate Change Assessment, Climate Change and India: A 4X 4 Assessment - A sectoral and regional analysis for 2030s, Ministry of Environment and Forests, Government of India, 16 November 2010] [42* Secretary-General's Remarks at the Climate Ambition Summit. United Nations. United Nations, December 12, 2020.]
32. Therefore, the nature of ecological imbalance which is visible even in our own times may cascade, and the unforeseen injustice of the future may not be capable of being handled within the frontiers set forth today. The long term and very often irreparable environmental damage which are expected to be arrested by the NGT, urge this Court to advert to what is termed as the `Seventh Generation' sustainability principle, or the `Great Law of the Iroquois' (as it originates from the Iroquois Tribe) which requires all decision making to withstand for the benefit of seven generations down the line.
33. It is vital for the wellbeing of the nation and its people, to have a flexible mechanism to address all issues pertaining to environmental damage and resultant climate change so that we can leave behind a better environmental legacy, for our children, and the generations thereafter.
34. In circumstances where adverse environmental impact may be egregious, but the community affected is unable to effectively get the machinery into action, a forum created Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-28-
specifically to address such concerns should surely be expected to move with expediency, and of its own accord. The potentiality of disproportionate harm imposes a higher obligation on authorities to preserve rights which may be waylaid due to such restrictive access. It is also noteworthy that the "global impacts of climate change will fall disproportionately on minority and low-income communities". Thus, an affirmative role, beyond mere adjudication at the instance of applicant, is certainly required for serving the ends of environmental justice, as the statute itself requires of the NGT. We cannot validate an argument which furthers uncertainty to justify the role of a spectator, if not inaction, and would most assuredly result in injustice.
35. The NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks on its door. The forum itself has correctly identified the need for collective stratagem for addressing environmental concerns. Such a society centric approach must be allowed to work within the established safety valves of the principles of natural justice and appeal to the Supreme Court. The hands-off mode for the NGT, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice.
36. It would be procedural hairsplitting to argue (as it has been) that the NGT could act upon a letter being written to it, but learning about an environmental exigency through any other means cannot trigger the NGT into action. To endorse such an approach would surely be rendering the forum procedurally shackled or incapacitated.
37. When the Registry of the NGT does indeed receive a communication or letter, including matters published in media, it may cause to initiate suo motu action by inviting attention of NGT to such matters in the form of office report. Such circumstances would however require a notice to be given to the sender of the communication or author of the news item, as the case may be, to assist the NGT in the course of hearing and to substantiate the factual matters. It must also be said that the exercise of suo motu jurisdiction does not mean eschewing with the principles of natural justice and fair play. In other words, the party likely to be affected should be afforded due opportunity to present their side, before suffering adverse orders.
38. One could admit to the argument of danger of suo motu jurisdiction, if the NGT was acting outside its domain. But when it is legitimately working within the contours of its statutory mandate and with procedurals safeguards clarified above in play, the nature of the trigger itself viz. a letter or a `suo motu' initiation, cannot be the basis to curtail the role and responsibility of the specialized forum.
39. Institutions which are often addressing urgent concerns gain little from procedural nitpicking,which are unwarranted in Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -29-
the face of both the statutory spirit and the evolving nature of environmental degradation. Not merely should a procedure exist but it must be meaningfully effective to address such concerns. The role of such an institution cannot be mechanical or ornamental. We must therefore adopt an interpretation which sustains the spirit of public good and not render the environmental watchdog of our country toothless and ineffective.
40. Let us now hark back to the dialogues of the two protagonists, in Waiting for Godot, the play written by Samuel Beckett with which, we started this judgment. At the end of the deliberations, we find ourselves saying that the National Green Tribunal must act, if the exigencies so demand, without indefinitely waiting for the metaphorical Godot to knock on its portal. The preceding discussion advises us to answer the pointed question in the affirmative. It is accordingly declared that the NGT is vested with suo motu power in discharge of its functions under the NGT Act."
31. Consistent with its statutory obligations under the National Green Tribunal Act, 2010, this Tribunal has to respond to the duly verified factual position in the present case with requisite remedial/ameliorative measures for protection of environment and this Tribunal can not take refuge under any technical dispensation by dismissal of appeal as withdrawn.
32. The MOEF has issued Environmental Impact Assessment ('EIA') notification dated 14.09.2006 under sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986, read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986 in supersession of the notification number S.O. 60 (E) dated the 27th January, 1994. The MOEF&CC through its notification dated 14.09.2006 made it mandatory to obtain EC prior to establishment or expansion of any such project or activity which is listed in the schedule of notification. Objective of the process is to impose certain restrictions and prohibitions on new projects or activities, or on the expansion or modernization of existing projects or activities based Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -30- on their potential environmental impacts.
33. Para 2 of the notification dated 14.09.2006 reads as under:
"2. Requirements of prior EC (EC):- The following projects or activities shall require prior EC from the concerned regulatory authority, which. shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:
(i) All new projects or activities listed in the Schedule to this notification;
(ii)Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;
(iii)Any change in product-mix in an existing manufacturing unit included in Schedule beyond the specified range."
34. The environmental clearance has to be taken from Central Government in the Ministry of Environment and Forests for matters falling under Category `A' in the Schedule and from the State Environment Impact Assessment Authority (SEIAA) at State level for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity. The State Environment Impact Assessment Authority (SEIAA) makes its decision on the recommendations of a State level Expert Appraisal Committee (SEAC).
35. The Ministry of Environment and Forest & CC, Govt. of India constituted SEIAA and SEAC, Uttar Pradesh vide notification bearing no. S.O 3338(E) dated 16.10.2017 and subsequently reconstituted the same vide notification bearing no. S.O. 2276(E) Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -31- dated 11.06.2021.
36. In the present case the SEAC considered the application and the EIA report in its meeting dated 12.10.2021 and recommended for grant of environmental clearance to the project proponent. The SEIAA accepted the recommendation of the SEAC in its meeting dated 23.11.2021 and issued the impugned environmental clearance on 03.12.2021 vide EC identification no. EC21B001UP187714. On 03.01.2022 lease deed was executed between the State of UP through the District Magistrate Jalaun and the project proponent for the Project.
37. It may be observed here that the respondent No.2 was required to submit application for EC in the prescribed Form I annexed with EIA notification dated 14.09.2006 alongwith a pre- feasibility report. The respondent No.2 was required to provide all the relevant facts in the said application for proper appraisal by the SEAC of the environmental aspects involved with the sanction of the environmental clearance.
38. Form I categorically asks for the details interalia related to whether the proposal involves clearance under the Wildlife (Protection) Act, 1972, whether the operation of the proposed project would lead to loss of native species or genetic diversity, it asks for information regarding the environmental sensitivity of the area i.e. whether the Area is used by protected, important or sensitive species of flora or fauna for breeding, nesting, foraging, resting, over wintering, migration. Form I further in the Note appended to it obligates that where the projects are to be located within 10 km of the National Parks, Sanctuaries, Biosphere Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -32- Reserves, Migratory Corridors of Wild Animals, the project proponent shall submit the map duly authenticated by Chief Wildlife Warden showing features vis-à-vis the project location and the recommendations or comments of the Chief Wildlife Warden thereon, at the stage of EC.
39. Vide order dated 21.09.2022 Joint Committee comprising of representative of Principal Chief Conservator of Forests (Wild Life), State of Uttar Pradesh and Chairman, Betwa River Board, State of Uttar Pradesh was directed to meet within three weeks, undertake site visits, associate the applicant and representative of the project proponent, verify the factual position as to whether area in question is habitat of the crocodiles or whether mining activities would be having adverse impacts on crocodile or any other reptiles/wildlife's habitat, breeding etc. and furnish Factual Verification Report within one month. In compliance thereof the Joint Committee submitted report vide email dated 31.10.2022. In its report dated 31.10.2022 the Joint Committee has reported the proposed mining site to be natural habitat of crocodiles. The relevant part of the report is reproduced as under:-
"iz"uxr LFky ij fnukad 20-10-2022 dks la;qDr fujh{k.k ds le; unh ,oa unh ds ckgj ckyw {ks= esa exjePN o vU; typjksa vkfn ds ik;s tkus ds ckjs esa xgu fujh{k.k fd;k x;k] ijUrq dgha exePN ugha fn[kkbZ fn;sA fujh{k.k ds le; mifLFkr LFkkuh; xzkeh.kksa }kjk crk;k x;k fd bl {ks= esa cgqrk;r esa exjk ¼exjePN dk LFkkuh; uke½ fn[kkbZ nsrs gSa rFkk vU; typjksas@ljhl`iksa@vU; oU; thoksa ds ckjs esa iwN a s tkus ij mUgksaus vufHkKrk O;Dr dh] lkFk gh ;g Hkh crk;k fd vHkh vijkUg gS] T;knkrj exj izkr%dky esa fn[kkbZ nsrs gSaA xzkeh.kksa }kjk {ks= esa exjePN izkr%dky esa ik;s tkus dh tkudkjh fn;s tkus dh iqf"V gsrq fnukad 28-10-2022 dks izkr%dky 07%00 ls 09%00 cts ds e/; iqu% igaqpdj iz"uxr LFky dk xgurk ls fujh{k.k fd;k x;kA unh esa] unh ds fdukjksa ij] ckyw ds {ks= esa iSny ,oa ikuh esa uko }kjk fujh{k.k ds nkSjku exjePN lh/ks rkSj ij dgha ugha fn[kkbZ fn;s ijUrq unh ds fdukjs ls ckyw dh rjQ ,oa nksuksa fdukjksa ds chp tek ckyw esa exjePN ds in fpUg o ljdus&f?klVus ds fu"kku Li"V :i ls ik;s x;s] ftlds ekSds ij QksVksxzk¶l Hkh fy;s x;sA vr% bl vk'k; dh iqf"V gksrh gS fd Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-33-
bl {ks= esa exjePN ik;s tkrs gSaA"
40. No objections have been filed to the report dated 31.10.2022 of the Joint Committee and factual correctness thereof is not disputed by the appellant or any of the respondents and the same has been specifically reiterated by respondent No.4 Chief Wildlife Warden, Government of U.P. and even accepted by necessary implication by respondent No.1 SEIAA, U.P. in terms of reply filed vide email dated 31.10.2022.
41. It is conclusively established by the factual position duly verified by the Joint Committee that the Respondent No.2-the Project Proponent assisted by respondents No. 7 and 8 withheld the material information and instead of providing correct information, provided incorrect/wrong information by wrongly stating (i) that the proposal does not involve approval/clearance under, interalia, the Wildlife (Protection) Act, 1972; (ii) that the mining operations would not lead to any loss of native species or genetic diversity by wrongly stating that no species exist at the site and (iii) that the clause whether the Area is used by protected, important or sensitive species of flora or fauna for breeding, nesting, foraging, resting, over wintering, migration is not applicable. As per the Note appended to the Form-I provided in the EIA notification 2006, it was mandatory for the Respondent No. 2-the Project Proponent to submit a map duly authenticated by Chief Wildlife Warden showing features vis-à- vis the project location and the recommendations or comments of the Chief Wildlife Warden thereon at the stage of environmental clearance but the Respondent No.2-the Project Proponent omitted to do so.
42. The question which arises in the present case is whether Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -34- mining of river sand/morrum is permissible from the proposed mining site once it is established by the Joint Committee report dated 31.10.2022 that crocodiles inhabit the proposed mining site.
43. Section 2 (1) of the Wildlife (Protection) Act, 1972 defines 'Animal' to include mammals, birds, amphibians, fish, other chordates and invertebrates and also their young and eggs. Section 2 (15) of the Wildlife (Protection) Act, 1972 defines 'habitat' to include land, water or vegetation which is the natural home of any wild animal. Section 2 (36) of the Wildlife (Protection) Act, 1972 defines 'wild animal' as meaning any animal specified in schedules I to IV and found wild in nature. Section 2 (37 defines 'wild life' to indlcude any animal acquatic or land vegetation which forms part of any habitat. Crocodiles (including the Estuarine or salt water crocodile) (Crocodilus porosus and palustris) are included in entry 1-D in Part II of Schedule I of the Wildlife (Protection) Act, 1972 under the category of Amphibians and Reptiles.
44. Section 9 of the Wildlife (Protection) Act, 1972 prohibits hunting of any wild animal specified in Schedules I, II, III and IV except as provided under Section 11 and Section 12. Section 11 permits hunting of wild animals in certain cases and Section 12 provides for grant of permit for especial purposes. Section 9, 11 and 12 of the Wildlife (Protection) Act, 1972 are reproduced as under:-
"[9. Prohibition of hunting.--No person shall hunt any wild animal specified in Schedules I, II, III and IV except as provided under section 11 and section 12.]
11. Hunting of wild animals to be permitted in certain cases.--(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of Chapter IV,--
Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-35-
(a) the Chief Wild Life Warden may, if he is satisfied that any wild animal specified in Schedule I has become dangerous to human life or is so disabled or diseased as to be beyond recovery, by Order in writing and stating the reasons therefor, permit any person to hunt such animal or cause such animal to be hunted;
[Provided that no wild animal shall be ordered to be killed unless the Chief Wild Life Warden is satisfied that such animal cannot be captured, tranquilised or translocated:
Provided further that no such captured animal shall be kept in captivity unless the Chief Wild Life Warden is satisfied that such animal cannot be rehabilitated in the wild and the reasons for the same are recorded in writing.
Explanation.--For the purposes of clause (a), the process of capture or translocation, as the case may be, of such animal shall be made in such manner as to cause minimum trauma to the said animal]
(b) the Chief Wild Life Warden or the authorised officer may, if he is satisfied that any wild animal specified in Schedule II, Schedule III, or Schedule IV, has become dangerous to human life or to property (including standing crops on any land) or is so disabled or diseased as to be beyond recovery, by order in writing and stating the reasons therefor, permit any person to hunt [such animal or group of animals in a specified area or cause such animal or group of animals in that specified area to be hunted].
(2) The killing or wounding in good faith of any wild animal in defence of oneself or of any other person shall not be an offence:
Provided that nothing in this sub-section shall exonerate any person who, when such defence becomes necessary, was committing any act in contravention of any provision of this Act or any rule or order made thereunder. (3) Amy wild animal killed or wounded in defence of any person shall be Government property.
12. Grant of permit for special purposes.--
Notwithstanding anything contained elsewhere in this Act, it shall be lawful for the Chief Wild Life Warden, to grant2[***]a permit, by an order in writing stating the reasons therefor, to any person, on payment of such fee as may be prescribed, which shall entitle the holder of such permit to hunt subject to such conditions as may be specified therein, any wild animal specified in such permit, for the purpose of,--
(a) education;
[(b) scientific research;
(bb) scientific management.
Explanation.--For the purposes of clause (bb), the expression,"scientific management" means--
(i) translocation of any wild animals to an alternative Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors. -36-
suitable habitat; or
(ii) population management of wildlife, without killing or poisoning or destroying any wild animals;] [(c) collection of specimens--
(i) for recognised zoos subject to the permission under section 38-I; or
(ii) for museums and similar institutions];
[(d) derivation, collection or preparation of snake-venom for the manufacture of life-saving drugs:] [Provided that no such permit shall be granted--
(a) in respect of any wild animal specified in Schedule I, except with the previous permission of the Central Government, and
(b) in respect of any other wild animal, except with the previous permission of the State Government;] "
45. Section 18 of the Wildlife (Protection) Act, 1972 provides for declration of sanctuary and Section 36 A of the Wildlife (Protection) Act, 1972 provides for declration and management of a conservation reserve. Section 29 of the Wildlife (Protection) Act, 1972 provides that no person shall destroy, exploit or remove any wild life including forest produce from a sanctuary or destroy or damage or divert the habitat of any wild animal by any act whatsoever or divert, stop or enhance the flow of water into or outside the sanctuary, except under and in accordance with a permit granted by the Chief Wild Life Warden, and no such permit shall be granted unless the State Government being satisfied in consultation with the Board that such removal of wild life from the sanctuary or the change in the flow of water into or outside the sanctuary is necessary for the improvement and better management of wild life therein, authorises the issue of such permit: Provided that where the forest produce is removed from a sanctuary the same may be used for meeting the personal bona fide needs of the people living in and around the sanctuary and shall not be used for any commercial purpose. Explanation to Section 29 of the Wildlife (Protection) Act, 1972 clarifies that grazing or movement of livestock permitted under clause (d) of Section 33 shall not be deemed to be an act Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-37-
prohibited under Section 29. In view of the report dated 31.10.2022 of the Joint Committee, Chief Wildlife Warden, Uttar Pradesh ought to have taken appropriate action for protection of the habitat of the crocodiles in accordance with the provisions of the the Wildlife (Protection) Act, 1972. In view of the provisions of the Wildlife (Protection) Act, 1972, the habitat of the Crocodiles cannot be destroyed. Section 11 of the Wildlife (Protection) Act, 1972 permits hunting of wild animals in certain cases while Section 12 thereof provides for grant of permit for special purposes but mining operations are not provided in either of the aforementioned sections.
Consequently, any mining done in pursuance of the impugned environmental clearance would fall foul of the abovementioned provisions of the Wildlife (Protection) Act, 1972 and it would also constitute an offence under the said Act.
46. In Department of Mines & Geology, State of Punjab v.
State Level Environment Impact Assessment Authority, Punjab : (2020) 19 SCC 500 Hon'ble Supreme Court upheld revocation of EC on the ground that the appraisal of the application for environmental clearance leading to grant of EC was on the basis of the information furnished by the Project Proponent which was contrary to the ground reality as found from the joint demarcation report.
47. In view of the above referred legal perspective and duly verified factual position of the proposed mining site being natural habitat of the crocodiles, the EC dated 03.12.2021 granted in favour of the respondent No.2 suffers from patent illegality and is liable to be quashed/set aside. Consequently EC dated 03.12.2021 and mining lease dated 03.01.2022 executed on the basis thetereof are Appeal. No. 07/2022 Ghanai Vs. SEIAA, U.P. & Ors.-38-
quashed/set aside. The Respondent No. 2 is held to be entitled to refund of the amounts deposited/paid with interest at the rate of 7.5% from the date of deposit/payment till realization/repayment thereof and the concerned respondents are directed to pay the amount deposited/ paid by respondent No.2 with interest at the rate of 7.5% from the date of deposit/payment till realization/repayment thereof within three months drom the date of receipt of a copy of this order.
48. The appeal and all Interim applications pending stand disposed of accordingly.
49. In view of the peculiar facts and circumstances of the case the parties are left to bear their own costs.
50. A copy of this order be supplied to the appellant and the respondents by email for information/ compliance.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM April 27, 2023 AG