National Green Tribunal
Junaid Ayubi vs State Of Haryana on 24 May, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 02 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Appeal No. 19/2022
(I.A. No. 111/2022)
Junaid Ayubi & Anr. Appellant(s)
Versus
State of Haryana & Ors. Respondent(s)
Date of hearing: 24.05.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Appellant: Mr. Ajit Sharma, Advocate
Respondent(s): Mr. Rakesh Khanna, Senior Advocate with Mr. M.F. Khan,
Advocate for M/s Balaji Infra (R - 5)
ORDER
1. This Appeal has been preferred against Environmental Clearance (EC) for proposed mining of boulder, gravel and sand (minor minerals) at Jairampur Block YNR/B-6 (ML area-33.85 Ha.), Village Jairampur Jagiri, Tehsil Jagadhari, District Yamuna Nagar, Haryana by M/s Balaji Infra, R-
5. The details of the project have been noted as follows:-
" 1. Category / Item no. (in schedule): Category-B1, I (a)
2. Area of the project Area- 33.58 ha
3. Date of LoI granted by Mines & 30.11.2015 Geology Department, Haryana
4. Date of approval of Mining plan 10.06.2016 Granted by Mines & Geology Department, Haryana
5. Location of Project Jairampur Jagir Block YNR/B-6, Village-Jairampur Jagir, Tehsil-Jagadhari, District-
Yamuna Nagar, Haryana 1
6. Project Details Khasra No. 2//20, 21, 22,6//16min, 25, 7//3,8/1, 8/2, 3, 4/1, 4/2, 5/1, 5/2, 6/1, 6/2, 6/3, 7/1, 7/2, 7/3, 12/2, 12/3, 13/1, 13/2, 13/3, 14/1,14/2, 14/3, 15/1, 15/2, 15/3, 16, 17/1, 17/2, 18 to 23, 24, 8//1,2, 10/1, 10/2, 10/3, 11//1 to 3, 8, 9 to 12, 13, 19 to 22 12//4,5, 6,7, 14, 15, 16, 17, 24, 25 15//3, 4 to 7, 8, 13, 14, 15, 16, 17, 18, 23, 24/1,24/2, 24/3, 24/4, 24/5, 24/6, 25/1, 25/2, 25/3,25/4, 25/5, 25/6, 16//1, 2, 9, 10, 11, 12, 20, 21/1, 21/2, 21/3, 21/4,21/5,19111, 10 min, llmin, 19min, 20, 21, 22, 20//3 to 8, 13 to 16, 17, 25
7. Project Cost Rs. 5 Crore/Annum
8. Water Requirement 43.00 ICLD
9. Source of water Hired Tankers 10. Septic Tanks 2
11. Environment ManagementPlan Rs 201.0 lakh for 10 years Budget
12. CER Budget 1.0 Cr.
13. Production 15,20,000 TPA
14. Corner Coordinates of the lease Latitude- 30° 07' 18" N to 30° 08' 08"
area N Longitude- 77° 23' 47.5" E to 77°
24' 10" E
15. Green belt/ plantation 11.08 Ha (33%)
16. Machinery required List of Machineries
S. Name of
Capacity Nos.
No. Machinery
1 Excavator 2.0 m3 4
Tippers/
2 25 tons 51
Trucks
Water 4000
3 2
Tanker liters
Light
4 vehicles -- 1
/jeep
Maintenance
5 -- 1
Van
17. Incremental Load in respect of: Parameter Predicted GLC
(pg/m3) -
ISCST3 Model
PM2.5 0.03
PMK) 0.408
SO2 0.0000002
"
NO2 0.0093
2
2. The conditions for grant of EC include filing of replenishment study within one year after start of the project and obtaining permission for withdrawal of ground water.
3. Learned counsel for the appellant submits that though application was only for sand mining, EC has been granted for boulder, gravel and sand. No replenishment study has been conducted as is mandatory in terms of The Enforcement & Monitoring Guidelines for Sand Mining (EMGSM-2020), under the Environment (Protection) Act, 1986 and order of this Tribunal dated 11.03.2020 in Appeal No. 23/2021, Pramod v. State of Uttar Pradesh & Ors., holding as follows:-
"6. From the above it remains undisputed that EC has been granted without replenishment study which is sought to be defended that the same is only for one year to be extended only if replenishment study is completed before that.
7. Learned counsel for the PP instead of focusing on the point of effect of absence of replenishment study, which is mandatory under norms, sought to argue on locus and bonafides of the appellant which are not relevant in view of patent illegality in EC granted in favour of PP.
8. Accordingly the impugned EC will stand quashed without prejudice to fresh EC being granted after following due process of law. The mining already conducted is illegal and consequences of such illegality may be appropriately determined and enforced by the SEIAA, UP and State PCB, after hearing the PP, within one month from today."
4. It is further stated that as shown by geo coordinates of the site, mining site involves instream mining in River Yamuna though no river bed mining is permissible within 500 mtrs. of the River as per Rule 57 (v) of the Haryana Minor Mineral Concession, Stocking, Transportation of Minerals and Prevention of Illegal Mining Rules, 2012. It is further submitted that source of water is said to be tankers without specifying the source of water for such tankers. This may encourage illegal extraction of groundwater. 3
5. Even before issuing notice, the Project Proponent (PP), R-5, has entered appearance through Counsel to oppose the Appeal. We have heard learned Counsel for the PP accordingly. He submitted that the PP has given an undertaking that no mining will be done for boulder and gravel and thus mining is only for sand. With regard to replenishment study, it is submitted that it is not required. Our attentions has been drawn to order of the Hon'ble Supreme Court dated 11.11.2021 in I.A No. 29984 of 2021, Bajri Lease LoI Holders Welfare Society Through its President v. The State of Rajasthan & Ors., wherein referring to earlier judgement in Deepak Kumar v. State of Haryana1, it was observed:-
"15. The damage caused to the environment due to rampant unscientific illegal mining needs no reiteration. Unabated illegal mining has resulted in the emergence of sand mafia who have been conducting illegal mining in the manner of organized criminal activities and have been involved in brutal attacks against members of local communities, enforcement officials, reporters and social activists for objecting to unlawful sand excavation. The statistics provided by the State Government highlights the magnitude of the problem as about 2411 FIRs have been registered in relation to illegal mining in the State of Rajasthan, between 16.11.2017 and 30.01.2020. When this Court has restrained 82 mining lease / quarry holders from carrying on mining of sand and bajri unless a scientific replenishment study is completed and EC is issued by the MoEFCC, the State of Rajasthan ought not to have issued mining leases in favour of the Khatedars. It is clear from the report of the CEC that the majority of the Khatedari leases are within 100 metres from the river bed. The 2020 Sand Mining Guidelines prescribe that mining plan for mining leases on Khatedari lands shall only be approved if there is a possibility of replenishment of the mineral or when there is no possibility of river bed mining within 5 km of the patta land / Khatedari land. Agreeing with the CEC's conclusions on the issue of mining leases in Khatedari lands facilitating legalisation of transportation and sale of illegally extracted sand, we approve the recommendation of the CEC that all Khatedari leases which are located within 5 km from the river bed and those leases where lease conditions have been violated have to be terminated forthwith and that Khatedari leases shall be granted only with the permission of this Court."1
1 (2012) 4 SCC 629 4
6. However, in the context of factual situation prevailing in the said matter with regard to pre existing leases, the Hon'ble Supreme Court sought a report from Central Empowered Committee (CEC) on the issue of replenishment study for the "LoI holders recommended during 2014- 2016". The said recommendations is as follows:-
"8. xxx....................................xxx..........................................xxx C. The MoEF&CC will issue EC in respect of all the valid LoI holders recommended by the EAC in its meeting held during 2014-2016 without insisting on submission of scientific study report as a precondition for grant of EC within a period of three months. MoEF&CC shall also prescribe detailed methodology in consultation with CMPDI for undertaking replenishment study during the course of mining as discussed in para 11 (iii) of this Report."
7. Accordingly, the PP submitted that replenishment study is not a condition precedent for grant of EC. We are unable to accept this submission. The order of the Hon'ble Supreme Court does not hold as is assumed by learned Counsel for the PP. Replenishment study is mandatory and observations of the CEC are limited to LoI holders considered during 2014-16. The EMGSM-2020 inter-alia provide as follows:-
"5.0 REPLENISHMENT STUDY The need for replenishment study for river bed sand is required in order to nullify the adverse impacts arising due to excessing sand extraction. Mining within or near riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, in-stream roughness of the bed, flow velocity, discharge capacity, sediment transport capacity, turbidity, temperature etc. Alteration or modification of the above attributes may cause an impact on the ecological equilibrium of the riverine regime, disturbance in channel configuration and flow-paths. This may also cause an adverse impact on instream biota and riparian habitats. It is assumed that the riparian habitat disturbance is minimum if the replenishment is equal to excavation for a given stretch. Therefore, to minimize the adverse impact arising out of sand mining in a given river stretch, it is imperative to have a study of replenishment of material during the defined period.
5.1 Generic Structure of Replenishment Study 5 Initially replenishment study requires four surveys. The first survey needs to be carried out in the month of April for recording the level of mining lease before the monsoon. The second survey is at the time of closing of mines for monsoon season. This survey will provide the quantity of the material excavated before the offset of monsoon. The third survey needs to be carried out after the monsoon to know the quantum of material deposited/replenished in the mining lease. The fourth survey at the end of March to know the quantity of material excavated during the financial year. For the subsequent years, there will be a requirement of only three surveys. The results of year-wise surveys help the state government to establish the replenishment rate of the river. Based on the replenishment rate future auction may be planned.
The replenishment period may vary on nature of the channel and season of deposition arising due to variation in the flow. Such period and season may vary on the geographical and precipitation characteristic of the region and requires to be defined by the local agencies preferable with the help of the Central Water Commission and Indian Meteorological Department. The excavation will, therefore, be limited to estimated replenishment estimated with consideration of other regulatory provisions."
8. In view of above, grant of EC without prior replenishment study is prima facie illegal. Instream mining is also not permissible. Source of water availability was also required to be looked into. Thus, the impugned EC may be liable to be quashed without prejudice to fresh EC being granted, after replenishment study, excluding the area falling within the river stream and taking other precautions.
9. Issue notice. The PP is already represented. Notice may be issued to the SEIAA, Haryana for its response, if any, within one month. The appellant may serve a copy of this order and set of papers on SEIAA, Haryana and PP and file an affidavit of service within one week. The respondents are free to file reply, if any, within one month from today. Having regard to the above discussion, interim direction is necessary considering prima facie case, balance of convenience and irreversible consequences of continuing illegal mining. Pending further consideration, 6 the PP is restrained from undertaking mining in pursuance of the impugned order List for further consideration on 13.07.2022. I.A. No. 111/2022 is formal for dispensing with filing of certified copy and stands disposed of.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM May 24, 2022 Appeal No. 19/2022 (I.A. No. 111/2022) AB 7