National Green Tribunal
Rakesh Sharma vs State Of Rajasthan Through Chief ... on 22 September, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH AT BHOPAL (MADHYA PRADESH)
ORIGINAL APPLICATION NO. 26/2023(CZ)
(I.A. NO.70/2023) AND (I.A. NO.74/2023)
IN THE MATTER OF:
RAKESH SHARMA
S/o Shri Kisuri Lal
R/o Village Kalwad,
Near Kalwad Bus Stand,
Kalwad Road,
Jaipur, Rajasthan
...Applicant(s)
Versus
1. STATE OF RAJASTHAN
Through Chief Secretary,
Government of Rajasthan,
Secretariat, Jaipur (Rajasthan)
2. DISTRICT COLLECTOR,
OFFICE OF COLLECTOR
District Jaipur, Rajasthan
3. DEPARTMENT OF MINES AND GEOLOGY
Through its Secretary
Secretariat Jaipur, Rajasthan
4. REGIONAL OFFICER, JAIPUR
Rajasthan State Pollution Control Board,
Jhalana Dungri,
Malviya Road, Rajasthan
5. THE DIRECTOR
Directorate General Mines and Safety,
Ajmer Region,
Anna Sagar, Ajmer-305 001
6. REGIONAL CONTROLLER OF MINES
Indian Bureau of Mines,
Makhupura Industrial Estate,
Nasirabad Road, Ajmer-305002
1
7. SHYAM STONE CRUSHER
Through Shyamlal
S/o Damodar
Kalwad-Jobner road, Kalwad, Jaipur (Rajasthan)
8. R.K. STONE CRUSHER
Through Ramkesh
S/o Radhe Shyam,
Kalwad- Jobner road, Kalwad, Jaipur (Rajasthan)
9. NATIONAL STONE CRUSHER
Through, Arvind Singh S/o Sumer Singh,
Kalwad-Jobner Road,
Kalwad, Jaipur (Rajasthan)
10. PINK CITY STONE CRUSHER
Through, Radheshyam
S/o Sukh Kumar,
Kalwad- Jobner Road,
Kalwad, Jaipur (Rajasthan)
11. RAJDHANI STONE CRUSHER
Kalwad- Jobner Road,
Kalwad, Jaipur (Rajasthan)
12. JAGDISH PRASAD JAT
Lease holder
Mining Lease No. 179/1995
Village Kalwad, Jaipur
Rajasthan
...Respondent(s)
Counsel for Applicant(s):
Mr. Dharamvir Sharma, Advocate
Counsel for Respondent(s):
Mr. Nishant Kesharwani, Adv. for
Mr. Shoeb Hasan Khan, Adv. for R-1
Mr. Rohit Sharma, Adv. for R-4 (RSPCB)
Mr. Pinaki Misra, Senior Advocate alongwith
Mr. Yadvender Yadav, Advocate for Respondent No.9
Mr. Sanjay Upadhyay, Mr. Shubham Upadhyay,
Ms. Mansi Bachani, Ms. Arushi Malik and
Mr. Yadvendra Yadav for Respondent No. 7 to 11
CORAM:
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Reserved on: August 18, 2023
Pronounced on: September 22, 2023
2
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. This Original Application (hereinafter referred to as 'OA') under Sections 14, 15, 17 and 18 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010') has been filed by Mr. Rakesh Sharma, son of Shri Kisuri Lal, resident of village Kalwad, Jaipur, State of Rajasthan being aggrieved by stone quarries operated by respondent 7 to 11 in village Kalwad.
2. The facts stated in OA, in brief are, that village Kalwad is situated at Jaipur Highway having population of more than 10000; the village has Government High School; a college and Fort Heritage site built in 1770; the area of Fort is densely populated; village is well connected with Jaipur; mining activities as also stone crushers are operating in large number having Mushroom growth in recent past undergoing unregulated mining, operating in the mist of the habitation and adversely affecting ecology and environment of the village area; in the mining activities, proponents are using heavy explosives going for blasting, crushing hills and converting hills into ridge, affecting functioning of public institutions like school, colleges etc., developing cracks in the residences of the villagers and the residents are in constant threat of life due to such activities; time and again, protest has been lodged by villagers to the authorities but no action has been taken by any of the authorities in the matter; mining activities are in operation on either side of Rajasthan State Highway 2C near Kalwad; northern side is a hill range in the village and north site thereof is full of vegetation while South and West stands completely eroded by illegal operations of mining as well as stone crushing units; hill ranges come under Aravali Range which is about 100 meters high and Supreme Court has prohibited mining activities in Aravali Ranges. 3
3. Applicant has sought a direction to restrain respondents from carrying out mining and stone crushing activities, direct Statutory Regulators and other concerned authorities to restore and reclaim damaged area and also reward compensation against violators on the principle of 'Polluter Pays'.
4. The complaint was examined by Tribunal on 17.04.2023 and it constituted a Committee comprising District Collector, Jaipur, a representative of Rajasthan State Pollution Control Board (hereinafter referred to as 'RSPCB') to visit the site and submit factual and action taken Report.
5. Pursuant to Tribunal's order dated 17.04.2023, Joint Committee through Sub-Divisional Officer, Jaipur-I, Jaipur submitted Report dated 18.05.2023 to Collector Jaipur which has been forwarded to this Tribunal. Committee visited site on 02.05.2023 and found 5 mining leases in village Kalwad, details whereof are as under:
Sl. Mining Lease Name of Lease Holder
No. Number
1 231/1991 M/s National Stone Crusher
2 58/1990 M/s Rajdhani Stone Crusher Pvt. Ltd.
3 44/1992 M/s Shyam Stone Crusher
4 179/1995 M/s Jagdish Prasad Jat
5 57/1990 M/s Pink City Stone Crusher
6. Except M/s. Jagdish Prasad Jat, Mining lease no. 179/1995, all other lease holders also have stone crushing units in the leased area with the same name. However, in the case of M/s. Jagdish Prasad Jat, his stone crushing unit is in the name of M/s. RK Stone Crusher. In other words, all the mining lease holders were also running stone crushing units, 4 with the common name and 1 with a different name. At the time of inspection, mining as well as stone crushing activities were not being carried out. 4 Mining leases were granted Environmental Clearance (hereinafter referred to as 'EC') by District Environment Impact Assessment Authority, Jaipur (hereinafter referred to as 'DEIAA Jaipur') as per the following details:
Sl. Mining Name of Lease Date of EC Date of
No. Lease Holder CTO
Number
1 231/1991 M/s National 25.06.2016 20.08.2018
Stone Crusher
2 58/1990 M/s Rajdhani 25.06.2016 26.12.2022
Stone Crusher
Pvt. Ltd.
3 44/1992 M/s Shyam 25.06.2016 10.12.2021
Stone Crusher
4 179/1995 M/s Jagdish 25.06.2016 24.05.2022
Prasad Jat
5 57/1990 M/s Pink City 25.06.2016 20.02.2023
Stone Crusher
7. The Report also said that except M/s Jagdish Prasad Jat, other mining lease holders had valid permission for blasting. However, M/s Jagdish Prasad Jat had applied for permission to DGMS, Ajmer but did not possess permission till the date of inspection. All the lease holders possess Consent to Operate (hereinafter referred to as 'CTO') under Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'Air Act, 1981').
8. Joint Committee recorded its conclusion that no illegal mining or crushing activities were observed; there was no effect on the functioning of the schools due to mining operations; no effect was found on the health of the workers of mines and effect on houses and schools can be assessed only after seismic study.
Reply filed by RSPCB (respondent 4):
9. RSPCB also filed its reply dated 03.07.2023 stating that the disputed site was inspected on 23.05.2023 when no illegal activities on the part of respondents 7 to 11 were noted; noise level monitoring and ambient air quality monitoring was conducted by RSPCB on 12.05.2023 and 5 17.05.2023 respectively; results were within the prescribed limits; Respondents 7 to 11 possess requisite CTO and there was no violation on record.
10. The matter was examined by Tribunal on 10.07.2023. Observing that DEIAA Jaipur had no authority to grant any EC and the lease holders specifically said that they had filed application for grant of EC before State Environment Impact Assessment Authority, Jaipur (hereinafter referred to as 'SEIAA Rajasthan') for grant of EC which is pending hence respondents 7 to 11 were operating without any valid EC; one of the proponents i.e., M/s Jagdish Prasad Jat was carrying out mining activities including blasting without any requisite permission, therefore, they were acting illegally. Tribunal restrained respondents 7 to 11 from carrying out any mining activity till requisite EC is granted by the Competent Authority i.e., SEIAA Rajasthan. M/s Jagdish Prasad Jat was further restrained from carrying out any mining activity by blasting until permission is accorded by Competent Authority. Tribunal also directed RSPCB to take steps for imposition of environmental compensation for undergoing illegal mining and blasting, without valid EC or other permissions, by respondents 7 to
11. I.A. No. 70/2023 dated 14.08.2023 filed by RSPCB
11. This application for modification/recall of order dated 10.07.2023 has been filed by RSPCB stating that some material facts due to inadvertent mistake could not be brought to the notice of Tribunal. It is said that Ministry of Environment, Forest and Climate Change (hereinafter referred to as ('MoEF&CC') issued Office Memorandum dated 28.04.2023 in compliance of Tribunal's order dated 07.12.2022 passed in OA No. 142/2022, Jayant Kumar vs. MoEF&CC, directing all concerned State Level Expert Appraisal Committees (hereinafter referred to as 'SEACs') to 6 appraise ECs issued by DEIAAs between 15.01.2016 and 13.09.2018 and all fresh ECs shall be granted only by SEIAAs concerned, based on such appraisal. This exercise shall be completed within a period of one year from the date of issue of this OM i.e., 28.04.2023. DEIAAs were directed to transfer all files where ECs were granted to concerned SEIAA within one month from the date of issue of OM dated 28.04.2023. Pursuant to OM dated 28.04.2023 issued by MoEF&CC, RSPCB issued Circular dated 09.05.2023 and the contents of the Circular are as under:
"This is in the reference to the Office Memorandum issued by the MOEF&CC vide order dated 28.04.2023. As per the OM all the Environmental Clearance issued by the DEIAA (erstwhile) should be reappraised by SEIAA within one year from the date of issue of the OM (i.e. by 27.04.2024). In view of the OM, following action to be taken at the RSPCB level, in the case of mines having EC issued by the DEIAA:
A. Mines where Consent to Operate are valid:- Letter be issued to all such mines incorporating additional condition:-
"In compliance with the OM dated 28.04.2023 issued by the MOEF&CC, GOI (copy enclosed), the lease holder shall get the EC issued by the District Environment Impact Assessment Authority (DEIAA), reappraised from the State Environment Impact Assessment Authority (SELAA) within one year (Le. by 27.04.2024) and shall submit copy to the Board".
B. Mines where renewal of Consent to Operate under consideration:-
In the renewal of Consent to Operate, the above specific condition should be incorporated in the CTO letters.
This bears approval of the competent authority
12. Hence, in the light of OM dated 28.04.2023 of MoEF&CC and Circular dated 09.05.2023 of RSPCB, private respondents were given time to get ECs re-appraised by SEIAA by 27.04.2024.
Reply dated 16.08.2023 filed by respondent 9 (M/s. National Stone Crusher):
13. Respondent 9 had filed its reply dated 16.08.2019 stating that OA is barred by time since mining lease was granted under Mining Lease no.7
231/1991 at village Kalwad to Arvind Singh on 24.01.1992 for a period of 10 years from the date of registration which was increased to 20 years by Office Order dated 21.03.2002 and 30 years vide Office Order dated 06.09.2011; thereafter, under Rule 9(2) of Rajasthan Minor Mineral Concession Rules, 2017 (hereinafter referred to as 'RMMC Rules, 2017') lease period was enhanced from 30 years to 50 years; the lease granted to Arvind Singh was transferred to M/s. National Stone Crusher (respondent
9) as per Rule 15(4) of Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as 'RMMC Rules, 1986') on 16.02.2009; respondent 9 obtained CTO on 04.08.2010 and EC on 25.06.2016 under B2 category from DEIAA Jaipur which was Competent Authority at the relevant time for grant of EC under Environment Impact Assessment Notification dated 14.09.2006 (hereinafter referred to as 'EIA 2006') as amended by EIA (Amendment) Notification dated 15.06.2016; DEIAA on 25.06.2016 granted EC to 22 mining leases/stone crushers under EIA 2006 including respondent 9; DEIAA in fact had granted EC to about 24,000 mining lease holders but applicant has selected only five proponents i.e., respondents 7 to 11; in any case, OA is barred by time as envisaged under Section 16 of NGT Act, 2010 or Section 14 when Tribunal passed order dated 13.09.2018 in OA No. 186/2016, Satender Pandey vs. MoEF&CC; OA has been filed about 31 years after grant of lease, 7 years after grant of EC by DEIAA while period of limitation under Section 14 is only 6 months from the date on which cause of action or such dispute first arose; even if the limitation is taken to have commenced on 13.09.2018 when order was passed in Satender Pandey vs. MoEF&CC (supra) holding provisions empowering DEIAA to grant EC to be illegal even then application is hopelessly barred by time prescribed under Section 14 having been filed only on 05.04.2023; it is not a case of continuous cause of action and in any case, concept of continuous cause 8 of action is not attracted under Section 14 of NGT Act, 2010; reliance is placed on Tribunal's judgment in Forward Foundation vs. State of Karnataka & Ors., 2015 SCC OnLine NGT 5 and Supreme Court's judgement in Mantri Tech Zone vs. Forward Foundation & Ors., (2019) 18 SCC 494.
14. It is next pleaded that EC for mining was granted by Competent Authority, therefore there was no illegality in the mining activities undertaken by respondents; CTO was issued on 04.08.2010 when under EIA 2066, no EC was required where lease area was less than 5 years, therefore, respondent 9 was exempted from requirement of EC; later on 27.02.2012, Supreme Court in Deepak Kumar vs. State of Haryana, (2012)4SSC629 extended requirement of EC to all mining lease irrespective of the lease area whereafter EIA 2006 was amended by notification dated 15.01.2016 and power to grant EC for lease area between 0 to 5 hectares was conferred upon DEIAA; the said authority granted EC to respondent 9 on 25.06.2016; amendment notification dated 15.01.2016 of EIA 2006 was challenged in Satender Pandey vs. MoEF&CC (supra) which was decided vide order dated 13.09.2018 giving several directions including that the provisions relating to grant of EC should have been consistent and in consonance with Supreme Court's verdict in Deepak Kumar vs. State of Haryana (supra) and Tribunal directed that appraisal of project and recommendation for grant of EC shall be undertaken by SEAC and EC shall be granted by SEIAA and not DEAC and DEIAA; existing ECs granted by DEIAA were not held illegal; in Vikrant Tongad vs. Union of India, OA 520/2016, Tribunal by order dated 11.12.2018 observed that the amendment notification dated 15.01.2016 shall not be acted upon to the extent it is contrary to Tribunal's order dated 13.09.2018 passed in Satender Pandey vs. MoEF&CC 9 (supra) and it is pursuant thereto that OM dated 12.12.2018 was issued by MoEF&CC consistent to the directions of Tribunal in Satender Pandey vs. MoEF&CC (supra) and Vikrant Tongad vs. Union of India (supra); the directions in OM in respect of grant of EC by SEIAA are prospective and do not render already existing ECs granted by DEIAA to be illegal.
15. It is also said by respondent 9 that MoEF&CC had filed Appeal against order dated 13.09.2018 passed in Satender Pandey vs. MoEF&CC (supra) and 11.12.2018 passed in Vikrant Tongad vs. Union of India (supra) before Supreme Court being Civil Appeal No. 3799/2019, Union of India vs. Rajiv Suri; Supreme Court has not granted any stay and the matter is pending before Supreme Court; Karnataka High Court in Kabani Blue Metals Pvt. Ltd. vs. Kerala State Single Window Clearance Board & Others WP(C) No. 1104/2021 has held that EC granted prior to Tribunal's judgment will remain valid so long as they are not subject to successful challenge; only in 2023, procedure for reappraisal of projects where EC was already granted has been clarified by this Tribunal in Jayant Kumar vs. MoEF&CC, OA 142/2022 and MoEF&CC vide OM dated 28.04.2023 and till the time granted by MoEF&CC and RSPCB exhaust, existing EC will continue to be valid subject to compliance of conditions prescribed in EC.
16. Respondent No.9 had submitted application for grant of EC by SEIAA on 21.07.2023 and the matter is pending before SEIAA Rajasthan; the order passed by this Tribunal on 10.07.2023 restraining mining activity by respondent 9 deserves to be recalled; mining activities have been carried out by respondent 9 strictly in accordance with the procedure prescribed and as per the conditions of various consents/clearances/No Objection Certificates (NOCs) and no illegality has been committed by respondent 9.
10 I.A. No. 74/2023 filed by respondent 9:
17. Taking similar stand, for modification of order dated 10.07.2023, I.A. No. 74/2023 has been filed by respondent 9 and we are not repeating the facts mentioned in the application since the facts are same as already discussed and mentioned above.
Replies by respondents 7, 10 and 11:
18. Replies dated 17.08.2023 have been field by respondent 7 (M/s. Shyam Stone Crusher), respondent 10 (Pink City Stone Crusher) and respondent 11 (M/s. Rajdhani Stone Crusher).
19. The contents of replies of respondents 7 and 10 are similar, hence we are not repeating the same. In reply of respondent 11, substantial part is similar to other replies. There is separate para-wise reply also. However, the central defense and the facts disclosed are virtually repetition and, therefore, we are not discussing or placing the same separately to avoid repetition.
Reply filed by respondent 8:
20. A separate reply dated 17.02.2023 has been filed by respondent 8 (M/s. R. K. Stone Crusher) stating that it is only a stone crusher and not a mining lease and not engaged in mining operations; and there is no allegation that it is operating illegally or unauthorisedly, hence, it should be deleted from array of parties.
I.A. No. 75/2023 dated 17.08.2023:
21. I.A. No. 75/2023 dated 17.08.2023 has been filed by Jagdish Prasad Jat with a request to be impleaded as respondent 12, admitting that mining lease no. 179/1995 has been sanctioned in the name of Jagdish Prasad Jat; the lease was allotted on 18.11.1998 for a period of 20 years which was increased to 30 years by office order dated 17.07.2014 and 11 thereafter to 50 years vide Rule 9(2) of RMMC Rules, 2017; and CTO was grated to respondent 12 vide letter dated 22.05.2022 after expiry of the earlier CTO and the current CTO is valid for a period of 01.06.2022 to 31.05.2027.
22. The other facts stated in the I.A. are similar as stated by the other respondents, hence we are not repeating.
23. Impleadment of Jagdish Prasad Jat as respondent 12 was allowed vide order dated 18.08.2023 and this IA was disposed of. ARGUMENTS
24. Applicant contended that the private respondents are carrying out their mining activities as also stone crusher activities in a manner so as to cause pollution and, therefore, they should be restrained from carrying out such activities.
25. Learned Counsel appearing for the private respondents on the contrary, argued that no illegality or action causing pollution has been found by Joint Committee; all requisite consents/NOCs/clearances have been obtained by the private respondents; they are proceeding strictly in accordance with law; in the absence of any material placed on record by the applicant to show that the respondents are conducting their activities so as to cause damage to environment, no academic order deserves to be passed by this Tribunal for something which whether existing is not certain or sure or at least not supported by the material on record and, therefore, the application deserves to be dismissed.
26. RSPCB broadly has supported the stand of the private respondents and submits that ECs granted by DEIAA are under appraisal of SEIAA Rajasthan in terms of MoEF&CC Office Memorandum dated 28.04.2023 12 read with RSPCB Circular dated 09.05.2023 and since the time allowed by RSPCB Circular is upto April 2024, therefore, it cannot be said that respondents 7 to 11 are operating mining leases or stone crusher activities illegally and without any valid EC, hence the application deserves to be dismissed.
ISSUES:
27. We have heard Learned Counsels for the parties, perused record and considered relevant Statutory provisions as also various judgments of Tribunal and Supreme Court relevant in the present matter. In our view, following issues which need adjudication by this Tribunal, have arisen in this matter:
I. Can respondents 7 to 11 be said to be operating illegally, without any valid EC, in respect of the mining activities, they are carrying out?
II. Whether in carrying out mining and stone crushing activities, respondents 7 to 11 are causing any damage or deterioration to environment without taking any remedial steps so as to justify a preventive order checking the above activities on the part of respondents 7 to 11?
III. Whether applicant is entitled for any relief in the facts and circumstances of the case?
CONSIDERATION ON MERITS:
28. ISSUE I: It is not in dispute that EIA 2006 as initially enacted did not make any provision, requiring EC for mining activities where the lease area is less than 5 hectares. The provision relating to requirement of EC for mining activities where lease area is more than 5 hectares and whether exemption to lease area of less than 5 hectares is valid, in the context of degradation to environment caused by mining activities, was considered 13 by Supreme Court in Deepak Kumar & Ors vs. State of Haryana & Ors. (2012) 4 SCC 629 (decided on 27.02.2012). Effect of mining of minor minerals and its regulation was considered in the context of auction notices issued by Department of Mines and Geology, Government of Haryana. Supreme Court, however, extended its scope of direction, Pan India. Background facts are, that auction notice dated 3.6.2011, issued by Department of Mines and Geology, Haryana proposing to auction extraction of minor minerals, boulders, gravel and sand quarries of an area, not exceeding 4.5 ha in district of Panchkula, was challenged. Further, auction notices dated 08.08.2011, in the district of Panchkula, Ambala and Yamuna Nagar exceeding 5 ha and above, quarrying minor mineral, road metal and masonry stone mines in the District of Bhiwani, stone and sand mines in the district of Mohindergarh, slate stone mines in the district of Rewari, and also in the districts of Kurukshetra, Karnal, Faridabad and Palwal, with certain restrictions for quarrying in the riverbeds of Yamuna, Tangri, Markanda, Ghaggar, Krishnavati River basin, Dohan River Basin etc., were also challenged. It was also brought to the notice of Supreme Court that similar illegal mining is going on in various districts of Rajasthan and Uttar Pradesh. It was pointed out that under EIA 2006, EC is required only when mining is permitted in an area not less than 5 ha. Auction notices permitting mining in area less than 5 ha were challenged on the ground that in order to escape from environment study under EIA 2006, bigger areas have been divided in smaller areas of less than 5 ha and that is how illegal mining is being permitted causing damage to environment. Supreme Court noticed the stand taken by MoEF in its affidavit dated 23.11.2011 that where mining area is homogenous, physically proximate and identifiable piece of land of 5 ha or more, it should not be broken into smaller sizes to circumvent EIA 2006. There was a Committee of Minor Minerals which had recommended 14 minimum lease size of 5 ha for minor minerals for undertaking scientific mining for the purpose of integrating and addressing environmental concerns.
29. Court said that minor minerals, boulders, gravel and sand quarries etc., in the places notified in auction notices, including the riverbeds of Yamuna, Tangri, Markanda, Ghaggar, Krishnavati River basin, Dohan River Basin etc., would result in environmental degradation and threat to bio-diversity, damage to riverine vegetation, cause erosion, pollute water resources etc. There was nothing on record to come to otherwise conclusion. It further shows that sand mining on either side of river upstream and instream, is one of the causes for environmental degradation and also threat to biodiversity over the years; India's rivers and riparian ecology had been badly affected at alarming rate due to unrestricted sand mining which has caused damage to ecosystem of rivers and safety of bridges, weakening of riverbeds, destruction of natural habitats of organisms living on the riverbeds. It would also affect fish breeding and migration, spells disaster for conservation of many bird species, and had increased saline water in rivers.
30. Commenting on the loss to the environment due to mining of minerals within or near streambeds or inside streambeds, Court observed, that extraction of alluvial material from within or near a streambed has direct impact on stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, instream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. If these habitat characteristics are altered, the same can have deleterious impact on both, instream biota and the associated riparian habitat. It is true that demand for sand had continued and would continue to 15 increase, day by day, due to ongoing construction of new infrastructures and expansion of existing ones. It is continuous process, placing immense pressure on the supply of sand resource. This has, and would, encourage mining activity which are bound to go on, legally or illegally, without any restriction. Lack of proper planning and sand management cause disturbance of marine ecosystem and would upset, the ability of natural marine processes to replenish the sand. Court expressed its anguish in the manner auction notices which were published by State of Haryana, permitting quarrying, mining and removal of sand from upstream and instream of several rivers which may have serious environmental impact on ephemeral, seasonal and perennial rivers and riverbeds, and sand extraction may have an adverse effect on biodiversity as well. This may also lead to bed degradation and sedimentation having a negative effect on the aquatic life. Some of the rivers mentioned in the auction notices are on the foothills of fragile Shivalik Hills. Shivalik Hills are the source of rivers like Ghaggar, Tangri, Markand, etc. River Ghaggar is a seasonal river which rises up, in the outer Himalayas, between Yamuna and Satluj and enters Haryana near Pinjore, District Panchkula, which passes through Ambala and Hissar and reaches Bikaner in Rajasthan. River Markanda is also a seasonal river like Ghaggar, which also originates from the lower Shivalik Hills and enters Haryana near Ambala. During monsoon, this river swells up into a raging torrent, notorious for its devastating power, as also River Yamuna. Court found that without conducting any study on the possible environmental impact, on/in the riverbeds, and elsewhere, the auction notices were issued. Court said that, when extraction of alluvial material within or near a riverbed has an impact on river's physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity, it is not an answer to say that extraction is in blocks of less 16 than 5 ha, separated by 1 km, since their collective impact may be significant, hence the necessity of a proper environmental assessment plan. MoEF brought to the notice of Court that it had come across several instances across the Country regarding damage to lakes, river beds and ground water leading to drying up of water beds and causing water scarcity on account of quarrying/mining leases and mineral concessions granted under rules, by Provincial Governments. State Government paid less attention on environmental aspect of minor minerals on the pretext that area was small but ignored the fact that collective impact in a particular area, over a period of time, was or would be significant. For taking note of these aspects, MoEF constituted, a Core Group under Chairmanship of Secretary (Environment and Forest) to look into the environmental aspects associated with mining of minor minerals, vide order dated 24.03.2009. The Core Group considered matter on following aspects: (i) Need to relook the definition of minor mineral, (ii) Minimum size of lease for adopting eco-friendly scientific mining practices,
(iii) Period of lease, (iv) Cluster of mine approach for addressing and implementing EMP in case of small mines, (v) Depth of mining to minimise adverse impact on hydrological regime, (vi) Requirement of mine plan for minor minerals, similar to major minerals and, (vii) Reclamation of mined out area, post mine land use, progressive mine closure plan etc. The Core Group examined the matter and submitted a Draft report to MoEF which was considered and discussed on 29.01.2010 and, thereafter, final report was circulated to all the State Governments vide MoEF's DO letter dated 01.06.2010. The Ministry of Mines, Government of India also prepared draft rules called "Minor Minerals (Conservation and Development) Rules 2010", and also sent communication dated 16.05.2011, called "Environmental Aspects of Quarrying and of Minor Minerals-Evolving of Model Guidelines" along with a draft model guideline, 17 calling for inputs, before 30.06.2011. In view of above, Court noticed that it is absolutely necessary to have an effective frame work of mining plan which will take care of all environmental issues, evolve a long term rational and sustainable natural resource base and also bio assessment protocol. Quarrying of river sand is an important economic activity of the Country with river sand, forming a crucial raw material for infrastructural development and construction industry, but excessive instream sand and gravel mining causes degradation of rivers. Instream mining lowers the stream bottom of rives which may lead to bank erosion. Depletion of sand in the streambed and along coastal areas causes deepening of rivers which may result in destruction of aquatic and riparian habitats as well. Extraction of alluvial material from within or near a streambed has a direct impact on stream's physical habitat characteristics. Sand mining, therefore, may have an adverse effect on bio-diversity as loss of habitat caused by sand mining will affect various species of flora and fauna and may also destabilise soil structure of river banks and often leaves isolated islands.
31. In these circumstances, Supreme Court said that Government of India's recommendations made in March 2010 followed by Model Rules 2010 must be given effect so as to inculcate spirit of Article 48(A), Article 51 (A)(g) read with Article 21 of Constitution. Court, therefore, issued directions to all States and Union Territories, MoEF and Ministry of Mines to give effect to the recommendations made by MoEF in its Report of March 2010 and the model guidelines framed by Ministry of Mines, within a period of six months from the date of judgment i.e., 27.02.2012 and submit compliance. Court also directed Government of India to take steps to bring into force Minor Minerals Conservation and Development Rules, 2010 at the earliest. 18 Various State Governments and Union Territories were also directed to take steps to frame necessary rules under Section 15 of MMRD Act, 1957, taking into consideration recommendations of MoEF in its Report of March 2010 and Model Guidelines framed by Ministry of Mines, Government of India.
32. The details of recommendation made by MoEF are reproduced in para 19 of the judgment and key recommendations contained in MoEF's DO letter dated 01.06.2010 are mentioned in para 22 of judgment. Supreme Court specifically directed that lease of minor minerals including renewal of an area of less than 5 ha would be granted by concerned authorities only after getting EC from MoEF.
33. Amendments were made in EIA 2006 after the judgment in Deepak Kumar vs. State of Haryana (supra) and Goa Foundation (supra) and have reflections of the said judgements. Subsequent amendments made in EIA 2006 are as under:
A. Notification dated 13.12.2012 published in Gazette of India Extraordinary of the same date:
a) In the Schedule Item 1(a) in Column V, following entries were substituted:
"In the Schedule to the said notification against item (a), in column (5) for the entries, the following entries shall be substituted namely, "General conditions shall apply.
Note:
(i) Prior environment clearance is required at the stage of renewal of mine lease for which an application shall be made up to two years prior to the date due for renewal.
Further, a period of two years with effect from the 4th April, 2011 is provided for obtaining environmental clearance for all those mine leases, which were operating as on the 4th April, 2011 with requisite valid environmental clearance and which have fallen due for renewal on or after the 4th November, 2011.
19
(ii) Mineral prospecting is exempted."
B. Notification dated 13.03.2013 published in Gazette of India Extraordinary of the same date:
a) The amendment was made in Schedule item 1(a) column 5 and following proviso was inserted under note (i):
"Provided that no fresh environment clearance shall be required for a mining project or activity at the time of renewal of mining lease, which has already obtained environment clearance, under this notification".
C. Notification dated 19.07.2013 published in Gazette of India Extraordinary of the same date:
a) It inserted para 11 A as under:
"11A. Preparation and Presentation of Environmental Impact Assessment (EIA) report and Environmental Management Plan (EMP).-
The Environmental consultant organization which are accredited for a particular sector or area and the category of project for that sector or area with the Quality Council of India (QCI) or National Accreditation Board for Education and Training (NABET) or any other agency as may be notified by the Ministry of Environment and Forests from time to time shall be allowed to prepare the Environmental Impact Assessment report and Environmental Management Plan of a project in that sector and category and to appear before the concerned Expert Appraisal Committee (EAC) or the State Expert Appraisal Committee (SEAC)."
D. Notification dated 22.08.2013 published in Gazette of India Extraordinary of the same date:
a) In para 7 sub-paragraph II, item (i) of EIA 2006 was substituted as under:
"(i) "Scoping" refers to the process by which the Expert Appraisal Committee in the case of Category 'A' projects activities, and State level Expert Appraisal Committee in the case of Category 'B1' projects or activities, including applications for expansion or modernization or change in product mix of existing projects or activities, determine detailed and comprehensive Terms of Reference (TOR) addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report in respect of the project or activity for which prior environmental clearance is sought and the Expert Appraisal Committee or State level Expert Appraisal Committee concerned shall determine the terms of reference on the basis of the 20 information furnished in the prescribed application Form 1 or Form 1A including terms of reference proposed by the applicant, a site visit by a sub-group of Expert Appraisal Committee or State level Expert Appraisal Committee concerned only if considered necessary by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned, terms of Reference suggested by the applicant if furnished and other information that may be available with the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned:
Provided that the following shall not require Scoping-
(i) all projects and activities listed as Category 'B' in item 8 of the Schedule (Construction or Township or Commercial Complexes or Housing);
(ii) all Highway expansion projects covered under entry (ii) of column (3) and column (4) under sub-item (f) of item 7 of the Schedule:
Provided further that-
A. the projects and activities referred to in clause (i) shall be apprised on the basis of Form I or Form IA and the conceptual plan;
B. The projects referred to in clause (ii) shall prepare EIA and EMP report on the basis of model TOR specified by Ministry of Environment and Forests;"
E. Notification dated 09.09.2013 published in Gazette of India Extraordinary dated 10.09.2013:
a) In the schedule item 1(a), amendment by substitution with regard to item and entry was made as under:
(1) (2) (3) (4) (5)
"1(a) (i) ≥ 50 ha of <50 ha of General Conditions
Mining mining mining shall apply except for
of lease area lease area project or activity of less
minerals in respect in respect than 5 ha of mining
of non-coal of minor lease area for minor
mine lease. minerals minerals:
mine
lease; and
≤50 ha ≥ 5 Provided that the above
ha of exception shall not
mining apply for project or
lease area activity if the sum total
in respect of the mining lease area
of other of the said project or
non-coal activity and that of
mine existing operating
lease. mines and mining
projects which were
21
≤ 150 accorded environment
>150 ha of ha>5 ha of clearance and are
mining mining located within 500
lease area lease area metres from the
in respect in respect periphery of such
of coal of coal project or activity equals
mine lease. mine or exceeds 5 ha.
lease.
Note:
(i) Prior environmental
clearance is required at
Asbestos the stage of renewal of
mining mine lease for which an
irrespective application shall be
of mining made up to two years
area. prior to the date due for
renewal. Further, a
period of two years with
effect from the 4th April,
2011 is provided for
obtaining environmental
clearance for all those
mine leases, which
were operating as on
the 4th April, 2011 with
requisite valid
environmental
clearance and which
have fallen due for
renewal on or after 4th
November, 2011:
Provided that no fresh
environmental
clearance shall be
required for a mining
project or activity at the
time of renewal of
mining lease, which has
already obtained
environmental
clearance under this
notification.
(ii) Mineral prospecting
is exempted.".
34. Thereafter, two OMs dated 24.06.2013 and 24.12.2013 were issued by MoEF&CC. OM dated 26.06.2013 lays down guidelines regarding categorization of mining projects of brick earth and ordinary earth having lease area less than 5 Ha as category B2 subject to stipulation stated therein. We are not giving details of this OM not being relevant for 22 our purposes.
35. MoEF&CC issued OM dated 24.12.2013 in the light of the reports submitted by Expert Committee constituted vide OM dated 30.01.2013 with regard to categorization of category B projects/activities into B1 and B2 as per Schedule to EIA 2006 and its amendments. With regard to mining of minerals, para 2 of the said OM said as under:
"2. In compliance with such a requirement under the EIA Notification and to examine other issues, the MoEF had constituted vide O.M. No. J-11013/12/2013-IA-II(I) dated 30.01.2013, an Expert Committee, under the Chairmanship of Director, NEERI, Nagpur. The Committee has since submitted its report. The recommendations of the Committee have been examined by MOEF and the following has been decided w.r.t. categorization of Category 'B' projects/activities into Category 'B1' & 'B2' listed in the Schedule of EIA Notification, 2006 and its amendments:
I. Mining of Minerals
Mining of minor minerals
As of now, mining projects of minor minerals with less than 50 ha of mining lease area are categorized as Category 'B' as per Notification S.O.2731(E) dated 9th September, 2013. Also vide OM No.L-11011/47/2011-IA.II(M) dated 24.06.2013, guidelines have been issued regarding categorization of mining projects of 'brick earth' and 'ordinary earth' having lease area less than 5 ha as category 'B2' subject to stipulations stated therein.
In the above backdrop, the projects of mining of minor minerals, categorized as Category 'B' are hereby categorized as 'B2' as per the following:
(i) 'Brick earth'/'Ordinary earth' mining projects having lease area less than 5 ha will be considered for granting EC as per the aforesaid guidelines issued by MOEF on 24.6.2013.
(ii) 'Brick earth'/'Ordinary earth' mining projects with mining lease area ≥ 5 ha but < 25 ha and all other minor mineral mining projects with mining lease area <25 ha, except for river sand mining projects will be appraised as Category 'B2' projects. These projects will be appraised based on following documents:
(a) Form -1 as per Appendix-I under EIA Notification, 2006
(b) Pre-feasibility report of the project
(c) Mining plan approved by the authorized agency of the concerned State Government Provided, in case the mining lease area is likely to result into a cluster situation, i.e., if the periphery of one lease area is less than 500 m from the periphery of another lease area and the total lease area equals or exceeds 25 ha, the activity shall become Category 'B1' Project under the EIA Notification, 2006. In such a case, 23 mining operations in any of the mine lease areas in the cluster will be allowed only if the environmental clearance has been obtained in respect of the cluster.
(iii) No river sand mining project, with mine lease area less than 5 ha, may be considered for granting EC. The river sand mining projects with mining lease area ≥5 ha but < 25 ha will be categorized as 'B2'. In addition to the requirement of documents, as brought out above under sub-para (ii) above for appraisal, such projects will be considered subject to the following stipulations:
(a) The mining activity shall be done manually.
(b) The depth of mining shall be restricted to 3m/water level, whichever is less.
(c) For carrying out mining in proximity to any bridge and/or embankment, appropriate safety zone shall be worked out on case to case basis to the satisfaction of SEAC/SEIAA, taking into account the structural parameters, locational aspects, flow rate, etc., and no mining shall be carried out in the safety zone so worked out.
(d) No in stream mining shall be allowed.
(e) The mining plan approved by the authorized agency of the State Government shall inter-alia include study to show that the annual replenishment of sand in the mining lease area is sufficient to sustain the mining operations at levels prescribed in the mining plan and that the transport infrastructure is adequate to transport the mines material. In case of transportation by road, the transport vehicles will be covered with taurpoline to minimize dust/sand particle emissions.
(f) EC will be valid for mine lease period subject to a ceiling of 5 years.
Provided, in case the mining lease area is likely to result into a cluster situation i.e. if the periphery of one lease area is less than 1 km from the periphery of another lease area and total lease area equals or exceeds 25 ha, the activity shall become Category 'B1' Project under the EIA Notification, 2006. In such a case, mining operations in any of the mine lease areas in the cluster will be allowed only if the environmental clearance has been obtained in respect of the cluster.
II. Other projects or activities The guidelines for categorizing some of the other category of projects or activities into 'B1' or 'B2' out of the category 'B' projects listed in schedule to EIA Notification, 2006, as amended from time to time, are as follows. These projects will be appraised based on Form-1 as per Appendix-I under EIA Notification, 2006, as amended and prefeasibility report of the project.
S.N. of Activities Category B2 Category B1
Schedule
1 (d) Thermal Power Thermal power Thermal power
Plants plants based o plants based on
coal/ lignite/ coal/ llignite/
naphtha and gas naphtha and gas of
of capacity ≤ 5 MW capacity > 5 MW
and < 500 MW.
2 (b) Mineral The mineral All other mineral
Beneficiation beneficiation beneficiation
24
activity listed in the activity falling in the
Schedule as Schedule as
Category 'B', with Category 'B'.
throughput ≤
20,000 TPA,
involving only
physical
beneficiation.
3 (a) Metallurgical All non toxic All other non toxic
Industries secondary secondary
(ferrous & non- metallurgical metallurgical
ferrous) processing processing
industries industries falling in
involving operation the Schedule as
of furnaces only, Category 'B'.
such as induction
and electric arc
furnaces,
submerged arc
furnaces, and
cupola with
capacity > 30,000
TPA but < 60,000
TPA provided that
such projects are
located within the
notified Industrial
Estates.
3 (b) Cement Plants All stand-alone All stand-alone
grinding units grinding units listed
listed in the in the Schedule as
Schedule as Category 'B' where
Category 'B' the transportation of
subject to the raw material and
condition that finished products is
transportation of not primarily
raw material and through Railways.
finished products
shall be primarily*
through Railways.
4 (d) Chlor Alkali All Chlor Alkali All Chlor Alkali
Industry plants with plants with
production production capacity
capacity < 300 TPD < 300 TPD (located
(located within outside notified
notified industrial industrial area)
area) listed in the listed in the
Schedule as Schedule as
Category 'B'. Category 'B'.
4 (f) Leather/S All new or All others projects
kin/Hide expansion projects listed in the
Processing of leather Schedule as
Industry production without Category 'B'.
tanning, located
within a notified
industrial
area/estate, listed
in the Schedule as
Category 'B'
5 (a) Chemical Single Super All other Single
Fertilizers Phosphate (SSP) Super Phosphate
plants involving (SSP) plants listed
25
only the activity of in the Schedule as
granulation of SSP Category 'B'.
powder.
5 (d) Manmade Fibres All manmade fibre All other manmade
Manufacturing manufacturing fibre manufacturing
units producing units listed in the
fibres from Schedule as
granules or chips. Category 'B'
7 (g) Aerial All Aerial Ropeway
Ropeways projects, listed in
the Schedule as
Category 'B',
should be
categorized as
Category B2.
*transportation by railways should not be less than 90% of the traffic (inward and outward put together)
36. The said Office Memorandums were challenged in OA 343/2013, Ranbir Singh vs. State of H.P. & Ors. and OA 279/2013, Promila Devi vs. State of H.P. & Ors. filed at Circuit Bench, Shimla. Vide order dated 28.03.2014, Tribunal stayed operation of OM dated 24.12.2013. Relevant extract of the order dated 28.03.2014 reads as under:
"The Ministry of Environment & Forest (MoEF) has not been able to explain as to how the Office Memorandum dated 24th December, 2013 in in conformity with the order of the Hon'ble Supreme Court in Deepak Kumar's case, order of the NGT and the Notification dated 9th September, 2013 issued by the MoEF itself. We do not think that the MoEF could have issued such memorandum.
The Notification issued by the MoEF is an act of subordinate legislation and was issued in exercise of statutory powers. The Office Memorandum is an administrative order and cannot frustrate the legislative act.
In fact, it falls beyond the scope of administrative powers. Consequently, we stay the operation and effect of the order of Office Memorandum dated 24th December, 2013. In so far as it relates to the minor minerals like sand etc., list these matters on 30th May, 2014 for hearing."
37. The above OAs were disposed of finally vide judgment dated 13.01.2015 along with some other matters with the following directions:
"83. In light of the above discussion and particularly keeping in view the persistent conflict between the State Regulations and the Central Notifications, it is imperative for us to issue directions specially to provide for an interim period, during which appropriate steps should be taken to comply with the Judgment of the Hon'ble Supreme Court 26 and to issue Notifications which are necessary in that regard. Therefore, we pass the following order and directions:
I. For the reasons afore recorded, we hold and declare that the Notification dated 9th September, 2013 is invalid and inoperative for non-compliance of the statutorily prescribed procedure under the Environment (Protection) Rules, 1986 and for absence of any justifiable reason for dispensation of such procedure.
II. We also hold and declare that the Office Memorandums dated 24th June, 2013 and 24th December, 2013 to the extent afore-indicated are invalid and inoperative being beyond the power of delegated legislation.
III. All the Office Memorandums and Notifications issued by MoEF i.e. 1st December, 2009, 18th May, 2012 and 24th June, 2013 and 24th December, 2013 (except to the extent afore-stated) are operative and would apply to the lease mine holders irrespective of the fact that whether the area involved is more or less than 5 hectares.
IV. We further hold that the existing mining lease right holders would also have to comply with the requirement of obtaining Environmental Clearance from the competent authorities in accordance with law. However, all of them, if not already granted Environmental Clearance would be entitled to a reasonable period (say three months) to submit their applications for obtaining the same, which shall be disposed of expeditiously and in any case not later than six months from pronouncement of this judgment. V. All the States and the Ministry of Environment and Forest shall ensure strict compliance to the directions issued by the Hon'ble Supreme Court in the case of Deepak Kumar (supra). We direct Secretary, Ministry of Environment and Forest to hold a meeting with the State of Rajasthan, Himachal Pradesh and Karnataka to bring complete uniformity in application of the above referred Notifications and Office Memorandums including the Notification of 2006.
VI. We direct that in the meeting it shall also disused and appropriate recommendations be made and placed before the Tribunal, as to whether riverbed mining covering an area of less than 5 hectares can be permitted, if so, the conditions and regulatory measures that need to be adopted in that behalf.
VII. We direct that the District Environmental Committees constituted by the respective State Governments shall not discharge any functions and grant approval as contemplated under the Notification of 2006. VIII. Secretary, Ministry of Environment and Forest along with such experts and the States afore-referred will also consider the possibility of constituting the branches of SEIAA at the district or at least, division levels, to ensure easy accessibility to encourage the mine holders to take Environmental Clearance expeditiously.
27 IX. It is stated before us that in large number of cases, particularly in relation of State of Rajasthan, persons carrying on mining activity of minor minerals, non-coal mining and brick earth and ordinary earth have applied for obtaining Environmental Clearances in accordance with the terms and conditions of the Notification of 2006. Let all such applications be dealt with and orders passed by the concerned authorities at the earliest and in any case not later than six months from today.
X. We direct the respondent authorities, particularly SEIAA, to dispose of the application of all these private respondents who have already filed applications seeking Environmental Clearance as expeditiously as possible, in any case not later than three months from today. Thus, Appeal No. 23/2014 and M.A. No. 469/2014, M.A No. 488/2014, 489/2014, 479/2014, 480/2014, 473/2014, 470/2014, 471/2014 and 469/2014 stand disposed of with the above directions. Till the grant of environmental clearance they would not carry out any activity of marble mining. XI. We dispose of Original Application No. 123/13 with a direction that SEIAA shall consider the applications filed for seeking Environmental Clearance in accordance with law and observations made in this judgment, expeditiously, and in any case within a period of three months from today. XII. In the meanwhile, no State shall permit carrying on of sand mining or minor mineral extraction on riverbed or otherwise without the concerned person obtaining Environmental Clearance from the competent authority.
XIII. We direct the Ministry of Environment and Forest to issue comprehensive but self-contained Notification relating to all minor mineral activity on the riverbed or otherwise, to avoid unnecessary confusion, ambiguities and practical difficulties in implementation of the environmental laws.
XIV. In light of the judgment of the Supreme Court and what has emerged from the various cases that are subject matter of this Judgment, we direct the Ministry of Environment and Forest to formulate a uniform cluster policy in consultation with the States for permitting minor mineral mining activity including, its regulatory regime, in accordance with law."
38. OM dated 24.12.2013 was held bad so far as it imposed complete prohibition on grant of mining permission for area less than 5 ha. This was observed by Tribunal in para 64 as under:
"64....it is clear that no Environmental Clearance would be granted for extraction of minor minerals, sand mining from any riverbed where the area is less than 5 hectares. This will amount to total prohibition of carrying on of minor mineral activity of extraction of sand from riverbed anywhere in the country. Such prohibition, as we have 28 already noticed, cannot be imposed in exercise of executive powers in face of the Notification of 2006 which places no such restriction. xxx.........................................xxx....................................................xxx Therefore, we find that this restriction is without any basis and is incapable of being imposed through an Office Memorandum. The minor mineral mining activity, other than sand mining, on riverbed was permitted in the sense that for such activity even areas less than 5 hectares could be considered for grant of Environmental Clearance."
39. Thus, from the above, it is evident that this Tribunal reiterated and directed MoEF&CC to act strictly as per the directions issued by Supreme Court in Deepak Kumar vs. State of Haryana (supra) with respect of permitting mining as per EIA 2006.
40. MoEF&CC sought to give effect to the direction of Supreme Court in Deepak Kumar vs. State of Haryana (supra) by issuing amendment notifications dated 15.01.2016 and 20.01.2016. A. Notification dated 15.01.2016 published in Gazette of India Extraordinary of the same date:
a) This notification was issued to make amendments in the light of Supreme Court judgment in Deepak Kumar vs. State of Haryana & Ors., (supra), wherein it was held that in the matter of mining, prior EC would be mandatory for mining of mineral minerals irrespective of the area of mining lease.
b) In paragraph 2, certain words were inserted and the amended paragraph of EIA 2006 reads as under:
"2. Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance 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, and at District level, the District Environment Impact Assessment Authority (DEIAA) for matters falling under Category 'B2' for mining of minor minerals in the said Schedule"
(Emphasis added) 29
c) In paragraph 3 of EIA 2006, para 3A was inserted and para 5 and 6 were substituted as under:
"3A. District Level Environment Impact Assessment Authority:
(1) A District Level Environment Impact Assessment Authority hereinafter referred to as the DEIAA shall be constituted by the Central Government under sub-section (3) of section 3 of the Environment (Protection) Act, 1986 comprising of four members including a Chairperson and a Member-Secretary. (2) The District Magistrate or District Collector shall be the Chairperson of the DEIAA.
(3) The Sub-Divisional Magistrate or Sub-Divisional Officer of the district head quarter of the concerned district of the State shall be the Member-Secretary of the DEIAA. (4) The other two members of the DEIAA shall be the senior most Divisional Forest Officer and one expert. The expert shall be nominated by the Divisional Commissioner of the Division or Chief Conservator of Forest, as the case may be.
The term and qualifications of the expert fulfilling the eligibility criteria are given in Appendix VII to this notification.
(5) The members of the DEIAA who are serving officers of the concerned State Government or the Union territory Administration shall be ex-officio members except the expert member.
(6) The District Level Expert Appraisal Committee hereinafter referred to as the DEAC shall comprise of eleven members, including a Chairman and a Member-Secretary. (7) The senior most Executive Engineer, Irrigation Department in the district of respective State Governments or Union territory Administration shall be the Chairperson of the DEAC.
(8) The Assistant Director or Deputy Director of the Department of Mines and Geology or District Mines Officer or Geologist of the district shall be the Member-Secretary of the DEAC in that order.
(9) A representative of the State Pollution Control Board or Committee, senior most Sub-Divisional Officer (Forest) in the district, representative of Remote Sensing Department or Geology Department or State Ground Water Department, one occupational health expert or Medical Officer to be nominated by the District Magistrate or District Collector, Engineer from Zila Parishad, and three expert members to be nominated by the Divisional Commissioner or Chief Conservator of Forest, as the case may be, shall be the other members of the DEAC. The term and qualifications of the experts fulfilling the eligibility criteria are given in Appendix VII to this notification.
(10) The members of the DEAC who are serving officers of the concerned State Government or the Union territory Administration shall be ex-officio members except the expert members.
(11) The District Magistrate or District Collector shall notify an agency to act as Secretariat for the DEIAA and the DEAC 30 and shall provide all financial and logistic support for their statutory functions.
(12) The DEIAA and DEAC shall exercise the powers and follow the procedure as specified in the said notification, as amended from time to time.
(13) The DEAC shall function on the principle of collective responsibility and the Chairman shall endeavor to reach a consensus in each case and if consensus cannot be reached, the view of the majority shall prevail.";
d) In paragraph 4, after sub-paragraph (iii), the following sub- paragraph shall be inserted, namely:
"(iv) The 'B2' Category projects pertaining to mining of minor mineral of lease area less than or equal to five hectare shall require prior environmental clearance from DEIAA. The DEIAA shall base its decision on the recommendations of DEAC, as constituted for this notification.";
e) For paragraph 5, the following paragraph shall be substituted, namely:
"5. Screening, Scoping and Appraisal Committees:
The same Expert Appraisal Committees (EACs) at the Central Government, SEACs at the State or Union territory level and DEAC at the district level shall screen, scope and appraise projects or activity in category 'A', 'B1 and B2' and 'B2' projects for mining of minor minerals of lease area less than and equal to five hectare respectively. EAC, SEACs and DEACs shall meet at least once every month.
(a) The composition of the EAC shall be as given in Appendix VI.
The SEAC at the State or the Union territory level shall be constituted by the Central Government in consultation with the concerned State Government or the Union territory Administration with identical composition. DEAC at the district level shall be constituted by the Central Government as per the composition given in paragraph 3 A.
(b) The Central Government may with the prior concurrence of the concerned State Governments or the Union territory Administration constitute one SEAC for more than one State or Union territory for reasons of administrative convenience and cost.
(c) The EAC and SEAC shall be reconstituted after every three years.
(d) The authorised members of the EAC, SEACs and DEACs concerned, may inspect any site connected with the project or activity in respect of which the prior environmental clearance is sought for the purpose of screening or scoping or appraisal with prior notice of at least seven days to the project proponent who shall provide necessary facilities for the inspection. 31
(e) The EAC, SEACs and DEACs shall function on the principle of collective responsibility. The Chairperson shall endeavor to reach a consensus in each case and if consensus cannot be reached the view of the majority shall prevail.";
(e) for paragraph 6, the following paragraph shall be substituted, namely:
"6. Application for Prior Environmental Clearance (EC):-
An application seeking prior environmental clearance in all cases shall be made by the project proponent in the prescribed Form 1 annexed herewith and Supplementary Form 1A, if applicable, as given in Appendix II after the identification of prospective site (s) for the project and/or activities to which the application relates; and in Form 1M for mining of minor minerals up to five hectare under Category 'B2' projects, as given in Appendix VIII, before commencing any construction activity, or preparation of land, or mining at the site by the project proponent. The project proponent shall furnish along with the application, a copy of the pre-feasibility project report, in addition to Form 1, Form 1A, and Form 1M; and in case of construction projects or activities (item 8 of the Schedule), a copy of the conceptual plan shall be provided instead of pre-feasibility report."
f) In paragraph 7 under the heading "I. Stage (1)-Screening", the existing paragraph was renumbered as "(A)" and, thereafter, following paragraph (B) was inserted:
"(B) The cases as specified in Appendix IX shall be exempted from prior environmental clearance.";
g) In para 7(ii), the following sub-paragraph (iii) was inserted:
"7 (iii) Preparation of District Survey Report for Sand Mining or River Bed Mining and Mining of other Minor Minerals:
(a) The prescribed procedure for preparation of District Survey Report for sand mining or river bed mining and mining of other minor minerals is given in Appendix X.
(b) The prescribed procedure for environmental clearance for mining of minor minerals including cluster situation is given in Appendix XI.";"
h) In paragraph 8, 9 and 11, after the words EAC or SEAC or Expert Appraisal Committee or State Level Expert Appraisal Committee, the words DEAC or District Level Expert Appraisal Committee 32 were inserted so as to bring the same in conformity with this amended notification.
i) In paragraph 10, after sub-paragraph (iii), following sub- paragraph (iv) was inserted:
"(iv) The prescribed procedure for sand mining or river bed mining and monitoring is given in Appendix XII.";
j) In para 11, for the words "Expert Appraisal Committee or State Level Expert Appraisal Committee", the words "Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee" were substituted.
k) In the Schedule, item 1(a) and entries were substituted as under:
(1) (2) (3) (4) (5)
"1(a) (i) Mining of ≥ 50 ha of <50 ha of General Conditions shall
minerals mining mining apply except:
lease area lease area
in respect in respect
of non-coal of non-coal
mine mine
lease. lease.
>150 ha of ≤ 150 ha (i) for project or activity of
mining of mining minor minerals of Category
lease area lease area 'B2' (upto 25 ha of mining
in respect in respect lease area);
of coal of coal
mine mine (ii) River bed mining projects
lease. lease. on account of inter-state
boundary.
Asbestos
mining
irrespectiv Note:
e of mining (1) Mineral prospecting is
area. exempted.'';
(2) The prescribed procedure
for environmental clearance
for mining of minor minerals
including cluster situation is
given in Appendix XI.";
(3) The mining leases which
have obtained environmental
clearance under
Environment Impact
Assessment Notification,
1994 and Environment
33
Impact Assessment
Notification, 2006 shall not
require fresh environmental
clearance during renewal
provided the project has
(ii) Slurry valid and subsisting
pipelines environmental clearance.
(coal lignite All
and other projects.
ores)
passing
through
national
parks or
sanctuaries
or coral
reefs,
ecologically
sensitive
areas.
l) After Appendix VI, appendix VII to XII were inserted. Appendix VII lays down qualifications and terms for the experts in DEIAA and DEAC; Appendix VIII contains form I M i.e., the format application for mining of minor minters under Category 'B2' for less than and equal to 5 ha and it required following information:
"(II) Basic Information
(viii) Name of the Mining Lease site:
(ix) Location / site (GPS Co-ordinates):
(x) Size of the Mining Lease (Hectare):
(xi) Capacity of Mining Lease (TPA):
(xii) Period of Mining Lease:
(xiii) Expected cost of the Project:
(xiv) Contact Information:
Environmental Sensitivity Sl. Areas Distance No in kilometre /Details
1. Distance of project site from nearest rail or road bridge over the concerned River, Rivulet, Nallah etc.
2. Distance from infrastructural facilities Railway line National Highway State Highway Major District Road Any Other Road Electric transmission line pole or tower Canal or check dam or reservoirs or lake or ponds 34 In-take for drinking water pump house Intake for Irrigation canal pumps
3. Areas protected under international conventions, national or local legislation for their ecological, landscape, cultural or other related value
4. Areas which are important or sensitive for ecological reasons - Wetlands, watercourses or other water bodies, coastal zone, biospheres, mountains, forests
5. Areas used by protected, important or sensitive species of flora or fauna for breeding, nesting, foraging, resting, over wintering, migration
6. Inland, coastal, marine or underground waters
7. State, National boundaries
8. Routes or facilities used by the public for access to recreation or other tourist, pilgrim areas
9. Defence installations
10. Densely populated or built-up area, distance from nearest human habitation
11. Areas occupied by sensitive man-made land uses (hospitals, schools, places of worship, community facilities)
12. Areas containing important, high quality or scarce resources (ground water resources, surface resources, forestry, agriculture, fisheries, tourism, minerals)
13. Areas already subjected to pollution or environmental damage. (those where existing legal environmental standards are exceeded)
14. Areas susceptible to natural hazard which could cause the project to present environmental problems (earthquakes, subsidence, landslides, erosion, flooding or extreme or adverse climatic conditions)
15. Is proposed mining site located over or near fissure/fracture for ground water recharge
16. Whether the proposal involves approval or clearance under the following Regulations or Acts, namely:-
(a) The Forest (Conservation) Act, 1980;
(b) The Wildlife (Protection) Act, 1972;
(c) The Coastal Regulation Zone Notification, 2011.
If yes, details of the same and their status to be given
17. Forest land involved (hectares)
18. Whether there is any litigation pending against the project and/or land in which the project is propose to be set up?
(a) Name of the Court
(b) Case No. 35
(c) Orders or directions of the Court, if any, and its relevance with the proposed project.
m) Appendix IX provided exemption of certain cases from requirement of EC and reads as under:
"EXEMPTION OF CERTAIN CASES FROM REQUIREMENT OF ENVIRONMENTAL CLEARANCE The following cases shall not require prior environmental clearance, namely:-
1. Extraction of ordinary clay or sand, manually, by the Kumhars (Potter) to prepare earthen pots, lamp, toys, etc. as per their customs.
2. Extraction of ordinary clay or sand, manually, by earthen tile makers who prepare earthen tiles.
3. Removal of sand deposits on agricultural field after flood by farmers.
4. Customary extraction of sand and ordinary earth from sources situated in Gram Panchayat for personal use or community work in village.
5. Community works like de-silting of village ponds or tanks, construction of village roads, ponds, bunds undertaken in Mahatama Gandhi National Rural Employment and Guarantee Schemes, other Government sponsored schemes, and community efforts.
6. Dredging and de-silting of dams, reservoirs, weirs, barrages, river, and canals for the purpose of their maintenance, upkeep and disaster management.
7. Traditional occupational work of sand by Vanjara and Oads in Gujarat vide notification number GU/90(16)/MCR-
2189(68)/5-CHH, dated the 14th February, 1990 of the Government of Gujarat.
8. Digging of well for irrigation or drinking water.
9. Digging of foundation for buildings not requiring prior environmental clearance.
10. Excavation of ordinary earth or clay for plugging of any breach caused in canal, nala, drain, water body, etc., to deal 36 with any disaster or flood like situation upon orders of District Collector or District Magistrate.
11. Activities declared by State Government under legislations or rules as non-mining activity with concurrence of the Ministry of Environment, Forest and Climate Change, Government of India."
n) Appendix X lays down procedure for preparation of district survey report and reads as under:
"PROCEDURE FOR PREPARATION OF DISTRICT SURVEY REPORT The main objective of the preparation of District Survey Report (as per the Sustainable Sand Mining Guideline) is to ensure the following:
Identification of areas of aggradations or deposition where mining can be allowed; and identification of areas of erosion and proximity to infrastructural structures and installations where mining should be prohibited and calculation of annual rate of replenishment and allowing time for replenishment after mining in that area.
The report shall have the following structure:
1. Introduction
2. Overview of Mining Activity in the District
3. The List of Mining Leases in the District with location, area and period of validity
4. Details of Royalty or Revenue received in last three years
5. Detail of Production of Sand or Bajari or minor mineral in last three years
6. Process of Deposition of Sediments in the rivers of the District
7. General Profile of the District
8. Land Utilization Pattern in the district: Forest, Agriculture, Horticulture, Mining etc.
9. Physiography of the District
10. Rainfall: month-wise
11. Geology and Mineral Wealth In addition to the above, the report shall contain the following:
(a) District wise detail of river or stream and other sand source.
(b) District wise availability of sand or gravel or aggregate resources.37
(c) District wise detail of existing mining leases of sand and aggregates.
A survey shall be carried out by the DEIAA with the assistance of Geology Department or Irrigation Department or Forest Department or Public Works Department or Ground Water Boards or Remote Sensing Department or Mining Department etc. in the district.
Drainage system with description of main rivers S. No. Name of the River Area drained % Area drained in the (Sq. Km) District Salient Features of Important Rivers and Streams:
S. No. Name of the Total Place of Altitude at River Length in origin Origin the District (in Km) Portion of Length of Average Area Mineable the River or area width of area recommended mineral Stream recommended recommended for mineral potential (in Recommend for mineral for mineral concession metric tonne) ed for concession concession (in square (60% of total Mineral (in kilometer) (in meters) meter) mineral Concession potential) Mineral Potential Boulder Bajari (MT) Sand Total Mineable Mineral (MT) (MT) Potential (MT) Annual Deposition S. River Portion of Length of Average Area Mineable No or the river or area width of recommended mineral . Stream stream recommended area for mineral potential (in recommend for mineral recommended concession metric ed for concession (in for mineral (in square tonne) (60% mineral kilometer) concession meter) of total concession (in meters) mineral potential) 38 A Sub-Divisional Committee comprising of Sub-Divisional Magistrate, Officers from Irrigation department, State Pollution Control Board or Committee, Forest department, Geology or mining officer shall visit each site for which environmental clearance has been applied for and make recommendation on suitability of site for mining or prohibition thereof.
Methodology adopted for calculation of Mineral Potential:
The mineral potential is calculated based on field investigation and geology of the catchment area of the river or streams. As per the site conditions and location, depth of minable mineral is defined. The area for removal of the mineral in a river or stream can be decided depending on geo-morphology and other factors, it can be 50 % to 60 % of the area of a particular river or stream. For example in some hill States mineral constituents like boulders, river born Bajri, sand up to a depth of one meter are considered as resource mineral. Other constituents like clay and silt are excluded as waste while calculating the mineral potential of particular river or stream.
The District Survey Report shall be prepared for each minor mineral in the district separately and its draft shall be placed in the public domain by keeping its copy in Collectorate and posting it on district's website for twenty one days. The comments received shall be considered and if found fit, shall be incorporated in the final Report to be finalised within six months by the DEIAA.
The District Survey Report shall form the basis for application for environmental clearance, preparation of reports and appraisal of projects. The Report shall be updated once every five years."
o) Appendix XI lays down procedure for environmental clearance for mining of minor minerals including cluster and read as under:
"The following policy shall be followed for environmental clearance of mining of minor minerals including cluster situation:-
(1). The data provided by the States (Sustainable Sand Mining Guidelines) shows that most of the mining leases for minor minerals are of lease area less than 5 hectare. It is also reported that in hill States getting a stretch in river with area more than 5 hectare is very uncommon. So the size of lease for minor minerals including river sand mining will be determined by the States as per their circumstances.
(2). The mining of minor minerals is mostly in clusters. The Environment Impact Assessment or Environment Management 39 Plan are required to be prepared for the entire cluster in order to capture all the possible externalities. These reports shall capture carrying capacity of the cluster, transportation and related issues, replenishment and recharge issues, geo-
hydrological study of the cluster area. The Environment Impact Assessment or Environment Management Plan shall be prepared by the State or State nominated Agency or group of project proponents in the Cluster or the project proponent in the cluster.
(3). There shall be one public consultation for entire cluster after which the final Environment Impact Assessment or Environment Management Plan report for the cluster shall be prepared.
(4). Environmental clearance shall be applied for and issued to the individual project proponent. The individual lease holders in cluster can use the same Environment Impact Assessment or Environment Management Plan for application for environmental clearance. The cluster Environment Impact Assessment or Environment Management Plan shall be updated as per need keeping in view any significant change. (5). The details of cluster Environment Impact Assessment or Environment Management Plan shall be reflected in each environmental clearance in that cluster and DEAC, SEAC, and EAC shall ensure that the mitigative measures emanating from the Environment Impact Assessment or Environment Management Plan study are fully reflected as environmental clearance conditions in the environmental clearance's of individual project proponents in that cluster. (6). A cluster shall be formed when the distance between the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area.
(7). Form 1M, Pre-Feasibility Report and mine plan for Category 'B2' projects for mining of minor minerals shall be prepared by the Registered Qualified Person or Accredited Consultants of Quality Council of India, National Accreditation Board for Education and Training. The Environment Impact Assessment or Environment Management Plan for Category 'A' and Category 'B1' projects shall be prepared by the accredited consultants of Quality Council of India, National Accreditation Board for Education and Training.
(8). The SEIAAs shall have supervisory jurisdiction over the DEIAAs and decisions of DEIAA shall be reviewed by the SEIAA without prejudice to any provisions under any existing law.
Schematic Presentation of Requirements on Environmental Clearance of Minor Minerals including cluster situation 40 Area Categ Require Require Require Who Who Autho Authorit of ory of ment of ment of ment of can will rity to y to Lease Proje EIA / Public EC prepar apply appra monitor (Hect ct EMP Hearing e EIA/ for EC ise/ EC are) EMP grant complia EC nce EC Proposal of Sand Mining and other Minor Mineral Mining on the basis of individual mine lease 0 - 'B2' Form - No Yes Project Project DEAC DEIAA 5ha 1M, PFR Propon Propon / SEIAA and ent ent DEIAA SPCB Approve CPCB d Mine MoEFCC Plan Agency > 5 ha 'B2' Form -I, No Yes Project Project SEAC/ nominat and < PFR and Propon Propon SEIAA ed by 25 ha Approve ent ent MoEFCC d Mine Plan and EMP ≥25ha 'B1' Yes Yes Yes Project Project SEAC/ and < Propon Propon SEIAA 50ha ent ent ≥50 'A' Yes Yes Yes Project Project EAC/ ha Propon Propon MoEF ent ent CC EC Proposal of Sand Mining and other Minor Mineral Mining in cluster situation Cluste 'B2' Form - No Yes State, Project DEAC DEIAA r area 1M, PFR State Propon / SEIAA of and Agency ent DEIAA SPCB mine Approve , Group / CPCB leases d Mine of MoEFCC up to Plan Project Agency 5 ha Propon nominat ents, ed by Project MoEFCC Propon ent Cluste 'B2' Form -I, No Yes State, Project DEAC r area PFR and State Propon / of Approve Agency ent DEIAA Mine d Mine , Group / leases Plan of > 5 ha and one Project and < EMP for Propon 25 ha all ents, with leases in Project no the Propon indivi Cluster ent dual lease >5h Cluste 'B1' Yes Yes Yes State, Project SEAC/ r of State Propon SEIAA mine Agency ent leases , Group of of area ≥ Project 25 Propon 41 hectar ents, es Project with Propon indivi ent dual lease size < 50ha Cluste 'A' Yes Yes Yes State, Project EAC/ r of State Propon MoEF any Agency ent CC size , Group with of any of Project the Propon indivi ents, dual Project lease Propon ≥50ha ent
p) Appendix XII lays down procedure for monitoring of sand mining or river bed mining and said as under:
"1. The security feature of Transport Permit shall be as under:
(a) Printed on Indian Banks' Association (IBA) approved Magnetic Ink Character Recognition (MICR) Code paper.
(b) Unique Barcode.
(c) Unique Quick Response (QR) code.
(d) Fugitive Ink Background.
(e) Invisible Ink Mark.
(f) Void Pantograph.
(g) Watermark.
2. Requirement at Mine Lease Site:
(a) Small Size Plot (Up to 5 hectare): Android Based Smart Phone.
(b) Large Size Plots (More than 5 hectare): CCTV camera, Personal Computer (PC), Internet Connection, Power Back up.
(c) Access control of mine lease site.
(d) Arrangement for weight or approximation of weight of mined out mineral on basis of volume of the trailer of vehicle used.
3. Scanning of Transport Permit or Receipt and Uploading on Server:
(a) Website: Scanning of receipt on mining site can be done through barcode scanner and computer using the software;42
(b) Android Application: Scanning on mining site can be done using Android Application using smart phone. It will require internet availability on SIM card;
(c) SMS: Transport Permit or Receipt shall be uploaded on server even by sending SMS through mobile. Once Transport Permit or Receipt get uploaded, an unique invoice code gets generated with its validity period.
4. Proposed working of the system:
The State Mining Department should print the Transport Permit or Receipt with security features enumerated at Paragraph 1 above and issue them to the mine lease holder through the District Collector. Once these Transport Permits or Receipts are issued, they would be uploaded on the server against that mine lease area. Each receipt should be preferably with pre-fixed quantity, so the total quantity gets determined for the receipts issued.
When the Transport Permit or Receipt barcode gets scanned and invoice is generated, that particular barcode gets used and its validity time is recorded on the server. So all the details of transporting of mined out material can be captured on the server and the Transport Permit or Receipt cannot be reused.
5. Checking On Route:
The staff deployed for the purpose of checking of vehicles carrying mined mineral should be in a position to check the validity of Transport Permit or Receipt by scanning them using website, Android Application and SMS.
6. Breakdown of Vehicle:
In case the Vehicle breakdown, the validity of Transport Permit or Receipt shall be extended by sending SMS by driver in specific format to report breakdown of vehicle. The server will register this information and register the breakdown. The State can also establish a call centre, which can register breakdowns of such vehicles and extend the validity period. The subsequent restart of the vehicle also should be similarly reported to the server or call centre.
7. Tracking of Vehicles:
The route of vehicle from source to destination can be tracked through the system using check points, RFID Tags, and GPS tracking.
8. Alerts or Report Generation and Action Review:
The system will enable the authorities to develop periodic report on different parameters like daily lifting report, vehicle log or history, lifting against allocation, and total lifting. The system can be used to generate auto mails or SMS. This will enable the District Collector or District Magistrate to get all the relevant details and shall enable the authority to block the scanning 43 facility of any site found to be indulged in irregularity. Whenever any authority intercepts any vehicle transporting illegal sand, it shall get registered on the server and shall be mandatory for the officer to fill in the report on action taken. Every intercepted vehicle shall be tracked.
The monitoring of mined out mineral, environmental clearance conditions and enforcement of Environment Management Plan will be ensured by the DEIAA, SEIAA and the State Pollution Control Board or Committee. The monitoring arrangements envisaged above shall be put in place not later than three months. The monitoring of enforcement of environmental clearance conditions shall be done by the Central Pollution Control Board, Ministry of Environment, Forest and Climate Change and the agency nominated by the Ministry for the purpose."."
B. Notification dated 20.01.2016 published in Gazette of India Extraordinary of the same date:
a) By this notification, Central Government constituted District Level Environmental Impact Assessment Authority for grant of EC for category B2 projects for mining of minor minerals for all the districts in the country and said as under:
"1. District Magistrate or District Collector of the district- Chairperson
2. Senior most Divisional Forest Officer in the district - Member
3. An expert member to be nominated by the Divisional Commissioner or- Member Chief Conservator of the Forest
4. Sub-Divisional Magistrate or Sub-Divisional Officer of the district head-Member-Secretary quarter
2. The Chairperson and official members of the Authority for the districts shall hold office during their tenure in the district on said posts and the expert member shall hold office for a period of three years from the date of nomination by the competent authority.
3. The Authority for the districts shall exercise such powers and follow the procedures as specified in the said notification.
4. The Authority for the districts shall base its decision on the recommendations of the District Level Expert Appraisal Committee constituted under paragraph 5 of this notification.
5. For the purposes of assisting the Authority for the districts, the Central Government hereby constitutes the District Level Expert Appraisal Committee for all the districts of the country (hereinafter referred to as DEAC for the district) comprising of the following members, namely:-44
1. Senior most Executive Engineer, Irrigation - Chairperson Department
2. Senior most Sub-Divisional Officer (Forest) - Member
3. A representative of Remote Sensing - Member Department or Geology Department or State Ground Water Department to be nominated by the District Magistrate or District Collector
4. Occupational health expert or Medical - Member Officer to be nominated by the District Magistrate or District Collector
5. Engineer from Zila Parishad - Member
6. A representative of State Pollution Control - Member Board or Committee
7. An expert to be nominated by the - Member Divisional Commissioner or Chief Conservator of Forest
8. An expert to be nominated by the - Member Divisional Commissioner or Chief Conservator of Forest
9. An expert to be nominated by the - Member Divisional Commissioner or Chief Conservator of Forest
10. Senior most Assistant Engineer, Public - Member Works Department
11. Assistant Director or Deputy Director or - Member District Mines Officer or Geologist in the Secretary district in that order
6. The Chairperson and the official members of the DEAC shall hold office during their tenure in the district and the non-official members shall hold office for three years from the date of their nomination by the competent authority.
7. The DEAC shall exercise the powers and follow the procedures as specified in the said notification.
8. The DEAC shall function on the principles of collective responsibility and the Chairperson shall endeavor to reach a consensus in each case, and if consensus cannot be reached, the view of the majority shall prevail.
9. The District Magistrate or District Collector of the district shall notify an agency to act as Secretariat for the Authority for the districts and DEAC. The agency shall provide all logistic support including transportation, accommodation, and such other facilities in respect of all its statutory functions.
10. The non-official members of the Authority for districts and the DEAC shall be entitled to such sitting fees, travelling allowance and dearness allowance which shall be paid in accordance with the concerned rules of the respective State Governments.
41. In Satendra Pandey vs. MoEF&CC & Another, OA 186/2016 filed on 18.04.2016, validity of notifications dated 15.01.2016 and 20.01.2016 amending EIA 2006 were challenged and a direction was 45 sought that DEIAA should not function in the manner as provided in the said notifications.
42. When the above matter was pending, some further amendments were made in EIA 2006, as under:
A. Notification dated 03.03.2016 published in Gazette of India Extraordinary of the same date:
a) Here paragraph 13 was inserted in EIA 2006 which reads as under:
"13. Preparation and presentation of Environment Impact Assessment (EIA) report and Environment Management Plan (EMP).- The Environmental consultant organisations which are accredited for a particular sector and the category of project for that sector with the Quality Council of India (QCI) or National Accreditation Board for Education and Training (NABET) or any other agency as may be notified by the Ministry of Environment, Forest and Climate Change from time to time shall be allowed to prepare the Environmental Impact Assessment report and Environmental Management Plan of a project in that sector and category and to appear before the concerned Expert Appraisal Committee (EAC) or the State Expert Appraisal Committee (SEAC). The Ministry will also prepare a panel of national level reputed educational and research institutions to work as Environmental Consultant Organisations".
B. Notification dated 01.07.2016 published in Gazette of India Extraordinary of the same date:
a) Amendment in Schedule in item 1(a), column 5 and entry (ii) was made as under:
"In the said notification,-
(a) in the Schedule, in item 1(a), in column (5), entry (ii) shall be renumbered as entry (iii) and before entry (ii) as so renumbered, the following entry shall be inserted, namely:-
"(ii) for project or activity of mining of minor minerals of Category 'B1' in case of cluster of mining lease area;";
b) In Appendix IX, following amendment was made:
(i) for paragraph 6, the following shall be substituted, namely:-
"(6) A cluster shall be formed when the distance between the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area which shall be applicable to the mine leases or 46 quarry licenses granted on and after 9th September, 2013.";
(ii) after the Table relating to "Schematic Presentation of Requirements on Environment Clearance of Minor Minerals including cluster situation" and before Appendix XII, the following Note shall be inserted at the end, namely:
"Note. - (1) In the State of Rajasthan, for mining of minor minerals, in situation of a large number of leases or quarry licenses of very small size (up to one hectare each) in contiguous area, the Mines and Geology Department of the State Government shall, -
(A) define the size of cluster as per local situation for effective formulation and implementation of mine plan and Environment Management Plan;
(B) prepare mine plan and an Environment Management Plan for the cluster;
(C) prepare a Regional Mine Plan and Regional Environment Management Plan including all the clusters in that contiguity.
(D) provide for mobilistation of funds from the Project Proponents in predetermined proportion for implementation of cluster and Regional Environment Management Plan.
(2) The District Mineral Fund can also be used to augment the fund for implementation of Environment Management Plans.
(3) The Environment Management Plan shall be prepared and presented within ninety days from the date of publication of this notification in the Official Gazette for environment clearance granted on or after 15th January, 2016 to any lease in that cluster. The recommendation of the State Expert Appraisal Committee and approval of the State Environment Impact Assessment Authority shall be granted within sixty days of presentation of the Environment Management Plan.
(4) The implementation of the Environment Management Plan shall begin within six months from the date of publication of this notification in the Official Gazette. The Environment Management Plan shall be monitored at the interval of six months by the concerned State Environment Impact Assessment Authority.
(5) The leases not operative for three years or more and leases which have got environmental clearance as on 15th January, 2016 shall not be counted for calculating the area of cluster, but shall be included in the Environment Management Plan and the Regional Environmental Management Plan.".47
C. Notification dated 14.09.2016 published in Gazette of India Extraordinary on 15.09.2016:
a) Paragraph 9 of EIA was substituted by this notification as under:
"9. Validity of Environmental Clearance (EC):
(i) The "Validity of Environmental Clearance" is meant the period from which a prior environmental clearance is granted by the regulatory authority, or may be presumed by the applicant to have been granted under sub-paragraph (iii) of paragraph 8, to the start of production operations by the project or activity, or completion of all construction operations in case of construction projects (item 8 of the Schedule), to which the application for prior environmental clearance refers. The prior environmental clearance granted for a project or activity shall be valid for a period of ten years in the case of River Valley projects [item 1(c) of the Schedule], project life as estimated by the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee subject to a maximum of thirty years for mining projects and seven years in the case of all other projects and activities.
(ii) In the case of Area Development projects and Townships [item 8(b)], the validity period of seven years shall be limited only to such activities as may be the responsibility of the applicant as a developer:
Provided that this period of validity with respect to sub- paragraphs (i) and (ii) above may be extended by the regulatory authority concerned by a maximum period of three years if an application is made to the regulatory authority by the applicant within the validity period, together with an updated Form I, and Supplementary Form IA, for Construction projects or activities (item 8 of the Schedule):
Provided further that the regulatory authority may also consult the Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee, as the case may be, for grant of such extension.
(iii) Where the application for extension under sub-paragraphs
(i) and (ii) above has been filed-
(a) within thirty days after the validity period of Environmental Clearance, such cases shall be referred to concerned Expert Appraisal Committee or State Level Expert Appraisal Committee or District Level Expert Appraisal Committee and based on their recommendations, the delay shall be condoned at the level of the Joint Secretary in the Ministry of Environment, Forest and Climate Change or Member Secretary, State Level Expert Appraisal Committee or 48 Member Secretary, District Level Expert Appraisal Committee, as the case may be;"
43. OA 186/2016, Satendra Pandey vs. MoEF & Ors. (supra) along with OA 200/2016, Rajeev Suri vs. Union of India; OA 580/2016, Badal Singh vs. Union of India & Ors.; OA 102/2017, Nature Club of Rajasthan (NGO) vs. Union of India & Ors.; OA 404/2016, Naresh Zargar vs. Ministry of Environment & Forest and Anr.; OA 405/2016, Rajeev Suri vs. Union of India & Anr. and OA 520/2016, Vikrant Tongad vs. Union of India were decided vide judgment dated 13.09.2018. Tribunal found both the above notifications, partly, inconsistent with Supreme Court's judgment in Deepak Kumar (supra). The exemption granted to leases upto 5 hectares in regard to procedure of appraisal by DIEAA was not upheld. The relevant extract of the judgment reads as under:
"9. Upon consideration of the fact and circumstances set out in the original application and upon hearing the Ld. Counsel for parties, we find that the impugned Notification dated 15th January, 2016 is not consistent with the decision of the Hon'ble Supreme Court in the case of Deepak Kumar (supra). We find substance in the submissions of the Ld. Counsel for the applicant that while breaking category B of the mines to B-1 & B-2 may not per se be bad, it certainly dilutes the stringent requirement of lease areas upto 25 ha being exempted from the necessity of submitting EIA and EMP for grant of Environmental Clearance. It is undisputed that the impugned Notification is issued with the object to comply with the directions passed in the case of Deepak Kumar (supra). This case had arisen as the EIA Notification dated 14th September, 2006 was being flouted by breaking homogenous areas into pieces of less than 5 ha in the States of Uttar Pradesh, Rajasthan and Haryana, as the notification then did not require Environmental Clearance for areas less than 5 ha. The Hon'ble Supreme Court after noting the serious deleterious effect of quarrying, mining and removal of sand in-stream and up-stream of rivers to the environment, in paragraphs 9 and 10 (of SCC), held as follows:
"9. Extraction of alluvial material from within or near a streambed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, in-stream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both in-stream biota and the associated riparian habitat. The demand for sand 49 continues to increase day by day as building and construction of new infrastructures and expansion of existing ones is continuous thereby placing immense pressure on the supply of the sand resource and hence mining activities are going on legally and illegally without any restrictions. Lack of proper planning and sand management cause disturbance of marine ecosystem and also upset the ability of natural marine processes to replenish the sand.
10. We are expressing our deep concern since we are faced with a situation where the auction notices dated 3-6-2011 and 8-8- 2011 have permitted quarrying mining and removal of sand from in-stream and upstream of several rivers, which may have serious environmental impact on ephemeral, seasonal and perennial rivers and river beds and sand extraction may have an adverse effect on biodiversity as well. Further it may also lead to bed degradation and sedimentation having a negative effect on the aquatic life. The rivers mentioned in the auction notices are on the foothills of the fragile Shivalik hills. Shivalik hills are the source of rivers like Ghaggar, Tangri, Markanda etc. River Ghaggar is a seasonal river which rises up in the outer Himalayas between Yamuna and Satluj and enters Haryana near Pinjore, District Panchkula, which passes through Ambala and Hissar and reaches Bikaner in Rajasthan. River Markanda is also a seasonal river like Ghaggar, which also originates from the lower Shivalik hills and enters Haryana near Ambala. During monsoon, this stream swells up into a raging torrent, notorious for its devastating power, as also, river Yamuna.
11. We find that it is without conducting any study on the possible environmental impact on/in the river beds and elsewhere the auction notices have been issued. We are of the considered view that when we are faced with a situation where extraction of alluvial material within or near a riverbed has an impact on the rivers physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity, it is not an answer to say that the extraction is in blocks of less than 5 hectares, separated by 1 km, because their collective impact may be significant, hence the necessity of a proper environmental assessment plan."
10. The Hon'ble Supreme Court also took note of the fact that the MoEF&CC had constituted a Core Group under the Chairmanship of the Secretary (Environment & Forest) to look into the environment aspects associated with mining of the minor minerals vide order dated 24th March, 2009 with specific terms and conditions. The Core Group after consideration of various issues including cluster of mine approach for addressing and implementing EMP in case of small mines, submitted a report on 29th January, 2010 with the recommendation to permit mining of minor minerals under strict regulatory regime and carried out only under an approved framework of mining plan which should provide for reclamation and rehabilitation of mine areas. For smaller mine lease areas a cluster approach was recommended. It was directed that the States should 50 adopt the recommendations and the model guidelines framed by the Ministry of Mines, namely the Model Rules, 2010.
11. In pursuance of the directions, the impugned Notification dated 15th January, 2016 was ultimately issued. The MoEF&CC Notification dated 14th December, 2006 as it stood earlier prescribed for two categories of projects and activities as Category A and Category B based on the spatial extent of potential impacts, potential impacts on human health and natural and man-made resources. Stage (1)- Screening that provides for Category 'B' projects or activities, entail scrutiny of an application seeking prior Environment Clearance made in Form 1 by the concerned State Level Expert Appraisal Committee (SEAC) for determining whether or not the project or activity requires further environmental studies for preparation of EIA for appraisal prior to grant of Environment Clearance depending upon the nature and location specificity of the project. It further provides that the project requiring EIA report would be termed as Category 'B-1' and remaining projects as Category 'B-2' that would not require EIA report. Discretion to make such categorization was left upon the MoEF&CC and to issue appropriate guidelines from time to time. This provision was a subject matter of challenge in the case of Himmat Singh Shekhawat v. State of Rajasthan, 2015 ALL (I) NGT Reporter (1) DEL 44 by which it was upheld as having been issued by the Ministry as a Subordinate Legislation. However, the office memorandums dated 24th June, 2013 and 24th December, 2013 prohibiting grant of Environment Clearance to the mine areas of less than 5 ha was quashed as being in conflict with the aforesaid provision.
12. The only contention that require for us to consider in this case is as to whether the Notification dated 15th January, 2016 would satisfy the spirit of the directions issued in the case of Deepak Kumar (supra). As already noted, EIA Notification dated 14th September, 2006 under the Schedule provided thereto require all mining lease area of equal to and up to 50 ha to seek Environment Clearance requiring to submit EIA for appraisal from the SEIAA.
13. The impugned Notification dated 15th January, 2016, however, would clearly indicate that Category B has been split into category B1 and B2 and again, category B2 has been further split into areas of 0-5 ha and 5-25 ha. While 0-5 ha has been exempted from the requirement of EIA/Public Consultation, such exemption has also been provided even for mining areas of 5 ha to 25 ha with the DEAC and the DEIAA as the prescribed authority for evaluation and grant of Environmental Clearance. Category B- 1 being mining areas of 25 ha to 50 ha, the authorities prescribed are the SEAC and SEIAA. For falling in excess of 50 ha being Category-A, it is the EAC and the MoEF&CC.
14. The procedure for grant of the Environment Clearance by the DEIAA for areas between 0 to 5 ha falling under Category 'B-2' is found prescribed in paragraphs 6, 7(iii) (a) and 7(iii) (b) of the impugned Notification read with appendices VIII, X and XI. The Schematic Presentation of Requirement of Environment Clearance of Minor Minerals including cluster situation provided in a table to Appendix XI would substantiate 51 indubitably that even for areas between 5 to 25 ha, no EIA and Public Hearing is required and in cluster situation also, the requirement of EIA and Public Hearing have been exempted.
15. Introduction of such procedure, in our view, is clearly not consistent with the directions contained in the case of Deepak Kumar (supra) and the spirit behind such direction. By the provision, mining area upto from 5 ha to 25 ha has been completely exempted from the EIA and Public Consultation. For areas of 5 ha and below, apart from the exemption, it has been made only subject to a separate procedure of preparing a District Survey Report (DSR). These provisions quite apparently are more minecentric rather than striving a balance between mining and environment especially with regard to Form-1M which needs to be made more elaborate incorporating environment related aspects.
16. The Sustainable Sand Mining Management Guidelines, 2016 prepared by the MoEF&CC has also deprecated the procedure as will appear from below which is contained in the chapter on "The Issues and Management of Mining in Cluster":-
"It is seen that the categorization of mines into 'B1' and 'B2' category in which Category 'B2' leases are being exempted from the requirement of Environment Impact Assessment, Environment Management Plan, and Public Consultation for grant of EC, in many cases now the mining leases are being given for 25 hectares or less. This defeats the purpose and intent of Hon'ble Supreme Court Judgment which orders environment clearance for all mining leases irrespective of size. The environment clearance without Environment Impact Assessment, Environment Management Plan, and Public Consultation does not serve the purpose of environment clearance which is to ensure environmentally sustainable and socially responsible mining. So if a cluster or individual lease size exceeds 5 hectare, the EIA/EMP should be completed in the process of grant of prior environment clearance."
17. Thus, even according to the Sustainable Sand Mining Management Policy issued by the MoEF&CC by dispensing with Public Hearing, the judgment of the Hon'ble Supreme Court in the case of Deepak Kumar (supra) will stand defeated.
18. We also find that parameters for consideration while preparing District Mining Plan (DMP) and District Survey Report (DSR) are only for the purpose of ascertaining whether an area is fit for mining which are quite different from the parameters laid down for EIA. The consideration of the view point of the public by keeping DSR in public domain is not a substitute of Public Hearing for consideration of the view point of the public for EIA.
19. With specific reference to mining in cluster, the Report of the Committee of Secretaries, Ministry of Environment, Forest and Climate Change, 2010 recommended as follows: 52
"Considering the nature of occurrence of minor mineral, economic condition of the lessee and the likely difficulties to be faced by Regulatory Authorities in monitoring the environmental impacts and implementation of necessary mitigation measures, it may be desirable to adopt cluster approach in case of smaller mine leases being operated presently."
20. This report which is a part of the Sustainable Sand Mining Management Guidelines, 2016 finds reinforcement in the Chapter "The Issues and Management of Mining in Cluster" referred to earlier where it has inter-alia been recommended as under:
"The Hon'ble Supreme Court, NGT, SEAC/EAC and the Project Proponents have raised issue of cluster in mine lease allotment and environment clearance for the same, so following conditions need to be ensured for cluster of mines:
1. To address the concern of adverse impact of minor mineral mining on environment it is proposed that all mining activity including river sand mining (above 5 hectare individual or cluster) will need to prepare Environment Impact Assessment Report and Environment Management Plan before grant of environment clearance. These reports (EIA/EMP) can be prepared by the State or State nominated Agency/the Project Proponent (s).
2. As can be seen from the data provided by the States most of the mining leases for minor minerals are of lease area less than 5 hectare. It is also reported that in hill states getting a stretch in river with area more than 5 hectare is very uncommon. So the size of lease for minor minerals including river sand mining will be determined by the States as per their circumstances.
3. The EIA Notification, 2006 does not provide for cluster EC, it provides for issuance of EC to individual project proponents and the same has also been upheld in the judgment of Hon'ble Supreme Court in Vijay Bansal vs. State of Haryana case. So EC will have to be applied for and issued to the individual project proponent.
4. A cluster shall be formed when the distance between the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area.
5. The mining of minor minerals is mostly in clusters. The Environment Impact Assessment or Environment Management Plan are required to be prepared for the entire cluster in order to capture all the possible externalities.
These reports shall capture carrying capacity of the cluster, transportation and related issues, replenishment and recharge issues, geo-hydrological study of the cluster area. The Environment Impact Assessment or Environment Management Plan shall be prepared by the State or State 53 nominated Agency or group of project proponents in the Cluster or the project proponent in the cluster.
6. The individual lease holders in cluster can use the same Environment Impact Assessment or Environment Management Plan for application for environmental clearance. The cluster Environment Impact Assessment or Environment Management Plan shall be updated as per need keeping in view any significant change.
7. There shall be one public consultation for entire cluster after which the final Environment Impact Assessment or Environment Management Plan report for the cluster shall be prepared.
8. The details of cluster Environment Impact Assessment or Environment Management Plan shall be reflected in each environmental clearance in that cluster and District Expert Appraisal Committee (DEAC), SEAC, and EAC shall ensure that the mitigative measures emanating from the Environment Impact Assessment or Environment Management Plan study are fully reflected as environmental clearance conditions in the environmental clearance's of individual project proponents in that cluster.
9. .............................................................
10. .............................................................
11. ............................................................."
21. Dispensing with the requirement of Public Hearing which forms a part of the Public Consultation under Stage-III of the Environmental Clearance process under EIA Notification, 2006 for areas measuring 0 to 25 ha for individual mine areas and in cluster situation where public hearing has been provided, has resulted in gross dilution of EIA Notification dated 14th September, 2006. Such dilution would, in our view, result in its misuse by unscrupulous elements and the situation would revert back to the lawless state prevailing prior to the decision in the case of Deepak Kumar (supra). Stringent measures are, therefore, necessary if the rampant exploitation of the minor minerals is to be curbed. This apparently was also the view of the Hon'ble Supreme Court in the case of Deepak Kumar (supra).
22. For all these reasons, we direct that the procedure laid down in the impugned Notification be brought in consonance and in accord with the directions passed in the case of Deepak Kumar (supra) by (i) providing for EIA, EMP and therefore, Public Consultation for all areas from 5 to 25 ha falling under Category B-2 at par with Category B-1 by SEAC/SEIAA as well as for cluster situation wherever it is not provided; (ii) Form-1M be made more comprehensive for areas of 0 to 5 ha by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant EC by SEIAA instead of DEAC/DEIAA; (iii) if a cluster or an individual lease size exceeds 5 ha the EIA/EMP be made applicable in the process of grant of prior environmental clearance; (iv) EIA and/or EMP be prepared for the entire cluster in terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendations 6, 7 and 8 thereof; (v) revise the procedure to also 54 incorporate procedure with respect to annual rate of replenishment and timeframe for replenishment after mining closure in an area; (vi) the MoEF&CC to prepare guidelines for calculation of the cost of restitution of damage caused to mined-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining.
23. We have permitted retention of 0-5 ha as a category keeping in view that some States grant isolated single lease of 5 ha and less not falling in cluster situation for which stringent requirements in Form-1M will serve the purpose of providing safeguards for protection of the environment and sustainable mining of minor minerals. This is particularly true in smaller and mountainous States as will also appear from condition no. 2 under "The Issues and Management of Mining in Cluster" referred to earlier in para 20 of this order.
24. It is reiterated that any attempt to split the lease area for the purpose of avoiding the applicable regulatory regime shall be viewed seriously. This in our view will be in the interest of the environment as deliberated in detail in the case of Deepak Kumar (supra) and would also satisfy the Precautionary Principle and the Principle of Sustainable Development contemplated under Section 20 of the National Green Tribunal Act, 2010.
25. The MoEF&CC shall, therefore, take appropriate steps to revise the procedure laid down in the impugned Notification dated 15 th January, 2016 in terms of the above directions and observations so that it is conformity with the letter and spirit of the directions passed by the Hon'ble Supreme Court in Deepak Kumar (supra)."
44. In furtherance to Tribunal's order dated 13.09.2018 in Satendra Pandey vs. MoEF & Ors. (supra), MoEF&CC issued OM No. F.No. L- 11011/175/2018-IA-II(M) dated 12.12.2018, the relevant part of which reads as under:
"Office Memorandum Sub: Order dated 04th September, 2018 & 13th September, 2018 passed by the Hon'ble National Green Tribunal, New Delhi in O.A. No. 173 of 2018 & O.A. No. 186 of 2016 in the matters titled "Sudarshan Das Vs. State of West Bengal & Ors." & ""Satendra Pandey Vs. Ministry of Environment Forest & Climate Change & Anr." respectively-regarding.
This is with reference to the recent order of the Hon'ble NGT dated 04th September, 2018 in the matter titled as Sudarshan Das Vs. State of West Bengal & Ors. and order dated 13 th September, 2018 in the matter titled as Satendra Pandey Vs. Ministry of Environment Forest & Climate Change & Anr. Copy of the orders are enclosed herewith for ready reference.
2. The Hon'ble NGT vide order dated 13th September, 2018 55 (Satendra Pandey Vs. Ministry of Environment Forest & Climate Change & Anr.) has inter-alia directed as follows:
"(i) Providing for EIA, EMP and therefore, Public Consultation for all areas from 5 to 25 ha falling member Category B-2 at par with Category B-1 by SEAC/SEIAA as well as for cluster situation wherever it is not provided.
(ii) Form-1M be made more comprehensive for areas of 0 to 5 ha by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant EC by SEIAA instead of DEAC/DEIAA;
(iii) if a cluster or an individual lease size exceeds 5 ha the EIA/EMP be made applicable in the process of grant of prior environmental clearance;
(iv) EIA and/or EMP be prepared for the entire cluster in terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendations 6, 7 and 8 thereof;
(v) revise the procedure to also incorporate procedure with respect to annual rate of replenishment and timeframe for replenishment after mining closure in an area;
(vi) The MoEF&CC to prepare guidelines for calculation of the cost of restitution of damage caused to mined-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining."
3. In view of the above, the undersigned is directed to forward the copy of the aforementioned orders for necessary compliance and inform the Ministry about the action taken. A copy of the same has been sent to the Chief Secretaries of all the States/UTs."
45. Ultimately, no effective statutory amendment was brought in EIA 2006 in the light of this Tribunal's judgment in Satender Pandey vs. MoEF&CC (supra) and OM Dated 12.12.2018 issued by MoEF&CC is only an executive order which also remain un-complied by all the States and UTs concerned.
46. This situation was noticed by Tribunal in OA 142/2022, Jayant Kumar vs. MoEF&CC & Others in the order dated 07.12.2022 in para 8 to 15 of the order, Tribunal said as under:
"8. However, it appears that EIA Notification 14.09.2006 as amended vide notifications dated 15.01.2016, 20.01.2016 and 01.07.2016 was not suitably revised by the MoEF&CC which has created confusion and has also resulted in non-compliance with 56 order dated 13.09.2018 passed by this Tribunal in Satendra Pandey (supra), as is demonstrated by the facts of the present case. Such confusion has even led to contradictory stands by the concerned authorities in different cases at different stages as demonstrated in the following paragraphs.
9. In O.A. No. 474/2019 tilted as Surender Singh Vs. MoEF&CC and Others, in the report filed by the Joint Committee it was mentioned as under:-
"VI. As per order of NGT dated 11.12.2018 a joint meeting of SEIAA and SEAC was held on 05.02.2019 and following decision was taken.
"In compliance of MoEF&CC, GOI, OM dated 12.12.2018, it is decided that all mining cases of minor minerals having 0 to 5 ha area will be appraised by UPSEIAA for Environment Clearance. All concerned project proponents will apply to UPSEIAA in Form-I with other required supporting documents on online MoEF&CC website www.environmentclearance.nic.in to process the application for grant of prior environment clearance with immediate effect till further order.
VII. The Director, Directorate Environment and Director, Geology and Mining by their orders dated 14.02.2019 requested all the District Magistrate to act as per decision taken by Joint Committee of SEIAA and SEAC on 05.02.2019 as follows (Annexure-12).
"In compliance of MoEF&CC, GOI, OM dated 12.12.2018, it is decided that all mining cases of minor minerals having 0 to 5 ha area will be appraised by UPSEIAA for Environment Clearance. All concerned project proponents will apply to UPSEIAA in Form-I with other required supporting documents on online MoEF&CC website www.environmentclearance.nic.in to process the application for grant of prior environment clearance with immediate effect till further order."
10. However, in the report of the Joint Committee filed in the present case no reference was made to the decision taken in the joint meeting of SEIAA and SEAC held on 05.02.2019 and orders dated 14.02.2019 conveyed by the Director, Directorate Environment and Director, Geology and Mining to all the District Magistrates in the State of U.P. On the other hand while referring to the provisions of the Uttar Pradesh Minor Minerals (Concession) Rules, 2021 and by completely ignoring directions given by Hon'ble Supreme Court in Deepak Kumar (supra) order dated 13.09.2018 passed by this Tribunal in Satendra Pandey (supra) and OM dated 12.12.2018 issued by MoEF&CC, it has been submitted that on 23.10.2018, the District Level Environmental Assessment Authority was legally working and the EC issued to respondents no. 5 and 6 is valid as well as in accordance with law.
11. In the present case, notice of the application was issued to 57 MoEF&CC and District Magistrate, Sonbhadra but none appeared and no response was filed on their behalf in this case. Pursuant to information given regarding listing of this case for further hearing, Mr. Ravindra Kumar Gupta, Advocate has appeared for MoEF&CC, today.
12. No doubt, OM dated 12.12.2018 was issued by MoEF&CC for compliance with order dated 13.09.2018 passed by this Tribunal in Satendra Pandey (supra), but MoEF&CC was also thereby required to revise Notification dated 14.09.2006 as amended by notifications dated 15.01.2016, 20.01.2016 and 01.07.2016 which were challenged in that case. The notification issued in exercise of statutory powers could be revised only by issuance of another notification in exercise of such statutory powers. Office Memorandum issued in exercise of administrative powers cannot be said to be due compliance of the order for revision of the notification. Therefore, mere issuance of OM dated 12.12.2018 cannot be said to be due compliance of order dated 13.09.2018 passed by this Tribunal in Satendra Pandey (supra).
13. In view of the above, MoEF&CC is directed to file an affidavit regarding compliance by it with order dated 13.09.2018 passed by this Tribunal in Satendra Pandey (supra). In case the notification has already been revised after 12.12.2018 then copy of the revised notification be filed before this Tribunal and in case, the notification has not been revised so far then the same be revised in consonance with the orders of Hon'ble Supreme Court and the Tribunal in the matter within one month and compliance report in this regard be filed within two months by email at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF.
14. Further, this Tribunal has observed that mining leases in which environmental clearance was granted by DEIAA in view of amendment notification dated 15.01.2016 are still continuing even after passing of order dated 13.09.2018 by this Tribunal in Satendra Pandey (supra) and issuance of OM dated 12.12.2018 by MoEF&CC without any re-appraisal by SEIAA and appropriate remedial action on the basis of such re-appraisal. All such mining leases in which environmental clearance was granted by DEIAA need to be brought in consonance with the directions given by Hon'ble Supreme Court in Deepak Kumar (supra) and order dated 13.09.2018 by this Tribunal in Satendra Pandey (supra) by re- appraisal by SEIAA and only such mining leases may be continued which have been on re-appraisal granted environmental clearance by SEIAA. MoEF&CC is, therefore, directed to take appropriate steps for compliance in this regard by issuance of requisite directions in exercise of the statutory powers under the Environment (Protection) Act, 1986. For this purpose, MoEF&CC is directed to collect information regarding such mining leases in which environmental clearance was granted by DEIAA and the period of which has not yet expired and are still continuing in all the States and Union Territories and by issuing appropriate directions for compliance with directions given by Hon'ble Supreme Court in Deepak Kumar (supra) and order dated 13.09.2018 passed by this Tribunal in Satendra Pandey (supra) by re-appraisal for grant of EC by SEIAA.
58
15. Action taken report in this regard be filed by MoEF&CC before this Tribunal within two months by email at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF."
47. OM dated 28.04.2023 has been issued by MoEF&CC in purported compliance of the directions issued by this Tribunal in Jayant Kumar vs. MoEF&CC & Others (supra) giving an years' time to all the concerned proponents who have obtained EC between 15.01.2016 to 13.09.2018 (including both dates), to have appraisal and approval by concerned SEIAAs but it is not stated anywhere that till the said appraisal is done, the existing functioning of concerned proponents who have obtained EC from DEIAA shall be discontinued or EC granted by DEIAA during respective time shall be inoperative or illegal for its operation till appraisal and approval is granted by concerned SEIAA within the time permitted by OA dated 28.04.2023.
48. In this view of the matter, in the absence of any otherwise statutory provision, we find appropriate to take a view that respondent 7 to 11 in continuing with their mining operations in pursuant to EC granted by DEIAA on 25.06.2016 cannot be said to be per se illegal provided the said proponents comply with all the conditions mentioned in the said EC, possess other statutory clearances/NOCs/consents etc. under environmental laws and statutes and do not cause any damage or degradation to environment by carrying on their activities in a manner which may cause such degradation. No such material has been placed before us to show such non-compliance.
49. Before parting with Issue I, we find it expedient to observe that respondents 7 to 11 all have applied for reappraisal of EC by SEIAA concerned and it is not necessary for SEIAA that in every case, it must 59 take months together for appraisal/re-appraisal and to take a decision whether EC should be granted or not. Decision of concerned SEIAAs in such matters should be in a reasonable period and in our view, it would be appropriate to direct SEIAA Rajasthan in the present case to complete its steps for appraisal/re-appraisal of ECs of respondents 7 to 11 expeditiously, and in any case, within 3 months from, it shall take a decision in accordance with law and communicate the same to respondents 7 to 11 within one week after expiry of three months as directed above.
50. Issue I is answered accordingly.
ISSUES II and III:
51. Now we proceed to consider issues II and III together.
52. Joint Committee in its Report has not found any activity of respondents 7 to 11 causing damage or degradation of environment either by polluting surface water or contaminating ground water or causing air pollution. It is true that on the date of visit of joint Committee, mining and other activities of respondents 7 to 11 were closed hence Committee did not find any occasion to verify the manner in which respondents 7 to 11 were carrying out their activities as to whether the same were causing any damage or degradation to environment but in respect of past activities, they did not find any such violation. Applicant has also not placed anything on record except of bare assertion that respondents 7 to 11 are conducting mining activities in a manner causing damage to environment but without supporting these allegations with any material, and in absence of any material, we find it difficult to draw an inference against respondents 7 to 11 and to believe the allegations levelled by applicant.
53. However, we find it appropriate to direct RSPCB to conduct surprise 60 inspections/checking at the mining sites of respondents 7 to 11 and to find out whether their activities are causing any damage to environment or not and if they find any violation of environmental laws and norms on the part of respondents 7 to 11, would take immediately preventive, remedial and punitive action against the violators/defaulters not only by restraining concerned proponents from carrying out such activities but also by assessing environmental compensation and also initiating prosecution under the relevant provisions of environmental laws.
54. Issues II and III are answered accordingly.
55. This OA is accordingly disposed of in terms of the observations and directions as stated above. There shall be no order as to cost.
56. Pending IAs stand disposed of.
57. Copy of the order be forwarded to Principal Secretary, Department of Environment, State of Rajasthan, RSPCB, District Collector, Jaipur, Regional Officer, Jaipur and Director, Directorate General Mines and Safety for information.
SUDHIR AGARWAL, JUDICIAL MEMBER DR. AFROZ AHMAD, EXPERT MEMBER September 22, 2023 Original Application No. 26/2023(CZ) R 61