National Green Tribunal
Sanjeev Agrawal vs Forest Dept Chattishgarh on 10 October, 2023
Item No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No.103/2023 (CZ)
(O.A. No. 328/2022-PB)
'
Sanjeev Agarwal Applicant(s)
Versus
Forest Department, Chhattisgarh & Anr Respondent(s)
Date of completion of hearing and reserving of order: 03.10.2023
Date of uploading or order on website:: 10.10.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Applicant(s): Mr. Sanjeev Agarwal- in person
For Respondent(s) : Mr. U.N. Tiwary, Adv.
Mr. Anshuman Singh, Adv.
Ms. Shilpa Nair, Adv.
Mr. Mahesh Kumar, Adv.
Mr. Manuraj Singh, Adv
ORDER
1. The grievance of the applicant is gold mining through bore wells in reserved forest area including section 254 measuring 144 hectares which is having dense forest in Baroda Bazar Vanmandal, Chhattisgarh. Mr. Sanjeev Agrawal, RTI Activist, Raipur, Chhattisgarh has filed the present application seeking issuance of directions prohibiting mining activity in Section 254 measuring 144 hectares Balodabazar Vanmandal Baghmarg Gold Block, Chhattisgarh.
2. The applicant has averred that Vedanta Ltd., has applied to Government of Chhattisgarh for mining gold through 58 borewells in reserved forest area, measuring 607.944 hectares, of Balodabazar Vanmandal Baghmarg Gold Block under Forest (Conservation) Act 1980. The mining area includes section 254 measuring 144 hectares which is having dense forest with basswood and other medicinal trees/plants and rich wildlife. The Principal Conservator of Forests, Government of Chhattisgarh had vide letter dated 06.10.2017 proposed inclusion of Section 254 in expansion of 22 sections of Devpur area but some Officers of Government of Chhattisgarh are bent upon favouring the Project Proponent and granting lease to the Project Proponent on the basis of Report of another Committee constituted for this purpose which contradicted and negative earlier report submitted by Senior Officers from the Forest Department that no mining was possible without deforestation in the area.
3. Vide order dated 09.05.2022, this Tribunal constituted a Joint Committee comprising of Regional Office of MoEF & CC, Nagpur, Principal Secretary, Mines, Government of Chhattisgarh, Principal Chief Conservator of Forest (HOD), Government of Chhattisgarh, State PCB and Collector, Balodabajar and directed the same to submit factual and action taken report within two months. The relevant part of the order is reproduced hereunder:-
"The averments made in the petition raise substantial questions relating to environment arising out of the implementation of the enactments specified in Schedule-I to the National Green Tribunal Act, 2010 and need due verification and immediate remedial action. Accordingly, we constitute a Joint Committee of representative of Regional Office of MoEF & CC, Nagpur, Principal Secretary, Mines, Government of Chhattisgarh, Principal Chief Conservator of Forest (HOD), Government of Chhattisgarh, State PCB and Collector, Balodabajar and direct the Joint Committee to meet within four weeks and undertake site visits, look into the grievances of the applicant, consider both the reports referred to in the application and make recommendations/take requisite action particularly with respect to the environmental damage caused and restoration of environment by following due process of law. The State PCB will be the Nodal agency for coordination and compliance. Factual and action taken report may be furnished within three months by e-mail at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF...."
4. In compliance thereof, the Joint Committee inspected the area on 20.06.2022 and has submitted report vide email dated 10.05.2022. In its Report, the Joint Committee has submitted that the prospecting (preliminary survey) has not commenced and the trees have not been cut and no degradation of environment has taken place; proposed mining site is in the area of Balodabazar forest division and lies outside the area of Barnawapara Sanctuary and its eco-sensitive zone and that no decision has yet been taken by the State Government regarding inclusion of land measuring 144.60 hectares of Kaksh/Division no. 254 in the area of Barnawapara Sanctuary and that as per permission granted, four inch diameter drilling is to be done by use of foldable machine in 51 bore holes without causing any damage to trees in land measuring 3.23985 hectares by way of prospecting (preliminary survey) for mineral exploration by using already existing extraction path which is to be monitored by Committee constituted under the Chairmanship of Principal Chief Conservator of Forests and Wildlife.
5. Additional District Magistrate, Balodabazar-Bhatapara did not agree with the Report of Joint Committee and has sent dissent letter dated 22.07.2022 expressing his opinion that the proposed mining project will adversely affect the ecology of the sensitive area and will cause degradation of environment and forest.
6. The matter was again taken up by this Tribunal on 02.08.2022, and issued notice to the respondents as follows:
6. Notices alongwith the application and the report of the Joint Committee and letter of Additional District Magistrate, BalodabazarBhatapara be issued to (i) Project Proponent- M/s Vedanta Limited through Mr. Gaurav Dua, Head of Exploration, Vedanta Limited, 1st Floor, 'c' wing, Unit 103, Corporation Avenue, Atul Projects, Chakala, Andheri (East) Mumbai-400093, Maharashtra, (ii) Secretary, MoEF & CC, (iii) State of Chhattisgarh through Chief Secretary, Government of Chhattisgarh, (iv) Principal Chief Conservator of Forests (Forest) and (v) Principal Chief Conservator of Forests (Wild Life), Government of Chhattisgarh, (vi) State PCB and (vii) Collector, Balodabazar requiring them to file their response/ reply within one month at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF. The present status of the proposal for including Kaksh/Division no. 254 comprising of 144.6 hectare area in the sanctuary of Barnawapara Wildlife Sanctuary be also mentioned in the reply/response.
7. In the facts and circumstances of the case presence of the Director, Directorate of Geology and Mining, Government of Chhattisgarh and Principal Chief Conservator of Forests (Forest) before this Tribunal on the next date of hearing, either through video conferencing or physically, is considered to be essential for assisting this Tribunal in effective and proper adjudication of questions involved in the case and accordingly, Director, Directorate of Geology and Mining, Government of Chhattisgarh and Principal Chief Conservator of Forests (Forest) are accordingly directed to remain present before this Tribunal on the next date of hearing fixed.
7. In compliance of the order dated 02.08.2022, Mr. Rakesh Chaturvedi, PCCF (HoFF) Government of Chhattisgarh and Dr. Kavita Bhardwaj, Interim Head Exploration, Vedanta have appeared before the Tribunal through Video Conference and on interaction with them they have reiterated that the prospecting exploration activity will not cause any environmental impacts.
8. Vide letter no. F. No. FC-III/CH-32/2018-NGP /23 dated 30th June, 2021, Government of India, MoEF & CC considered the proposal of mining lease in Balodabazar Vanmandal Baghmarg Gold Block, Chhattisgarh and issued the order as follows:
"I am directed to refer to the State Government of Chhattisgarh's letter no. krmank/F 5-55/2016/102 dated 25.09.2018 on the above subject seeking prior approval of the Central Government under the Forest (Conservation) Act, 1980 and letter number krmanklF 5-55/2016/10-2 dated 30.06.2021 forwarding additional information as desired by Regional Office vide letter dated 18.102018 and to say that the said proposal has been examined and approved by the Regional Empowered Committee constituted under Section - 4 of the Forest (Conservation) Act, 1980 in its meeting held on 17.12.2018.
After careful examination of the proposal of the State Government and on the basis of the approval of the proposal by the Regional Empowered Committee, the Central Government hereby accords `Formal Approval' for diversion of 3.23985 ha of forest land for prospecting of minerals from 51 bore holes over 414.415 ha of mining lease in favour of Vedanta Limited, Odisha in Baloda Bazaar District in the State of Chhattisgarh subject to the fulfilment of the following conditions:
i. The User Agency shall be allowed exploratory drilling of a maximum of 51 borehole of 4' diameter over 414.415 ha of forest land including approach roads.
ii. No tree felling shall be undertaken for exploration activities. Project activities shall be restricted to clearing of bushes and lopping of tree branches if any for the purpose of site preparation. iii. The user agency shall be responsible for any loss to the flora and fauna in the surrounding. Any damage done in this regard shall be compensated by the user agency from the project cost as per assessment of the concerned Divisional Forest Officer.
iv. No new road shall be constructed by the user agency for transporting prospecting tools and machines. The user agency may use the existing forest road/ path with prior information to the concerned Divisional Forest Officer. The area used for path during the prospecting work shall be restored to its original status of forest after completion of prospecting work.
v. No other construction activities shall be done by the user agency on forest land. Existing path and roads only will be used by the user agency for the purpose of prospecting activities and drilling of borehole will be limited to 51 no. with diameter of 4"
within forest land will be dug. Any change in the diameter of borehole and number of bore holes will be reported to the concerned Regional Office in advance for consideration and recommendations to the Central Government.
vi. Any change in the diameter of borehole and
number of bore holes will be reported to the
concerned Regional Office in advance for
consideration and recommendations to the Central Government.
vii. No labour camp shall be established on the forest land and no work shall be allowed after sunset."
9. In response to the report submitted by the Committee, the project proponent had submitted the reply with the facts that:
1. Forest Clearance (Stage l & 2) taken by Vedanta Ltd for prospecting/exploration activity only `not for mining activity'.
2. Presently area has not proven any economic resource potential for mining, as any prospecting drilling has not been started by Vedanta to prove economic R&R till date.
3. As we have not started any prospecting drilling activity in the area, hence we have not done any damage to the existing flora and fauna and not affected ecosystem in the said area.
4. The Drilling machine, which we are going to use are specially designed to drill in dense forest areas to avoid damage to forest, as these are small sized foldable machines which can be easily dismantled and assembled again.
5. Vedanta assure that drilling machines will be taken from the existing extraction path only, which is used by forest department's vehicle movement for patrolling and other activities like wood log, so by using same existing path, we are not going to damage any flora and fauna.
6. Our prospecting license area is located out of Barnawapara sanctuary and its eco-sensitive zone boundary. So, we are not going to disturb any ecology of sensitive area and will not cause any environmental & forest degradation as per rules. Still, we assure NGT that we will do drilling in day shift only with all precaution and for which, have already committed at the time of forest clearance in written.
7. Previously, GSI has already conducted the survey/Drilling by using the existing path in div. 254 and we are also going to follow same path; Hence we don't think, there will be any damage to plantation and animals of the area.
10. It is to be noted that when the matter was filed before this Tribunal, a Joint Committee was constituted and letter was addressed to MoEF & CC by the SPCB for nominating the scientist and the MOEF & CC has nominated head of department of IRO, Nagpur Dr. Bhardwaj, Scientist 'C' as a representative of the IRO and MoEF & CC in the Joint Committee and this Committee has submitted the report to this Tribunal with the facts that the activities as permitted by the order of the MoEF & CC will in no way affect the environment.
11. The respondents and State Pollution Control Board were directed to submit the replies, in light of the facts as narrated. The Chhattisgarh Environment and Conservation Board, Raipur through Member Secretary has filed the reply with the following facts:
"(a) The prospecting (preliminary survey) has not yet commenced, and the trees have not been cut and no degradation of environment has taken place.
(b) The proposed mining site is in the area of Balodabazar forest division and lies outside the area of Barnawapara Sanctuary and its eco-sensitive zone.
(c) That no decision has yet been taken by the State Government regarding inclusion of land measuring 144.60 ha of Kaksh/Division no. 254 in the area of Barnawapara Sanctuary.
(d) As per permission granted by the letter dated 30.06.2021 of the Integrated Regional Office, Ministry of Environment Forest and Climate Change, Government of India, four inch diameter drilling is to be done by use of foldable machine in 51 bore holes. This work being primary stage of mineral exploration can be undertaken by using already existing extraction path without any tree cutting and causing any damage to the area by four-inch diameter drilling with foldable machinein 51 bore holes within land measuring 3.23985 hectares, which is to be monitored by committee constituted under the chairmanship of Principal Chief Conservator of Forest, Ministry of Environment Forest and Climate Change, Government of India.
12. It is further submitted that the proposal for inclusion of Khasara No. 254 comprising of 144.6 hectare area is within the domain of the State Government and MoEF & CC and it is under consideration.
13. The matter was again referred to State Forest Research Institute, Jabalpur, Madhya Pradesh with regard to the submission of the report to have an impact assessment report regarding impact of prospective exploration activity on the forest bio diversity ecosystem and vide report dated 27.12.2022, the forest research institute has submitted the report as follows:
Diversion of 3.23985 ha of forest land for prospecting of minerals from 51 boreholes over 414.415 ha. of mining lease in favour of Vedanta Limited. Odisha in Baloda Bazar district in the State of Chhattisgarh. Application No.328/2022 before the National Green Tribunal, New Delhi National Green Tribunal Order Dated:
14/09/2022 S. Directions of Hon'ble Action taken N NGT report 8 "In view of the peculiar In compliance with facts and circumstances the Honorable of the case particularly National Green that an earlier Tribunal directions Committee of the officers w.r.t. the order of of the Forest Department petition No. 328/2022 dated 14/09/2022 as well as one of the and in pursuance to member of the Joint the request of PCCF & Committee constituted by HoFF, Chhattisgarh this Tribunal expresses vide his letter T./4-V-
their disagreement to 170-TP31/ 331-225
the proposed /2324 dated
/exploration activity, we 11/10/2022, a three
consider it appropriate member team of
to have an Impact experts was
Assessment Report constituted by SFRI to
regarding impact of carry out the
prospecting/exploration Environmental
activity on the forest Impact Assessment of
biodiversity, ecosystem, the prospective/
wildlife exploration activity
in the proposed site.
movement/habitats etc.
The committee
of the region from the
comprised of :-
State Forest Research
Institute (SFRI), 1. Dr. Anirudha
Jabalpur". Majumdar, Scientist
13'
"The Principal Chief 2. Dr. Jyoti Singh,
9 Conservator of Forests Senior Research
(HoFF), Government of Officer
Chhattisgarh is directed 3. Dr Uday Homkar,
to take requisite steps Senior Research
for engagement of the Officer
SFRI. The requisite The team visited the
expenses in this regard proposed prospective/
shall be borne by the exploration site along
State of Chhattisgarh". with Shri K. R. Badai
the Divisional Forest
Officer, Baloda Bazar,
Raipur and other
forest officials of the
area falling under
their jurisdiction, to
carry out the study of
forest biodiversity,
ecosystem, wildlife
movement/ habitats
etc.
During the field visit,
it was felt that
comprehensive
information regarding
the technology being
adopted and a visit to
any other such site
where such
technology is being
used for proposed
prospecting/exploratio
n activity would be
essential to prepare a
detailed project
proposal for carrying
out the field work of
impact assessment.
A communication was
sent to Principal Chief
Conservator of Forests
& Head of Forestry
Force (HoFF),
Government of
Chhattisgarh Forest
Department to provide
detailed information
of
prospecting/exploratio
n technology to be
used in the proposed
site.
1 "SFRI shall make impact Detailed project
0 assessment by making proposal to conduct
such surveys/inspections the Environmental
as considered necessary Impact Assessment
and file its Report within shall be prepared,
six weeks by email at based upon the receipt
[email protected] of desired information
preferably in the form of from The Principal
searchable PDF/OCR Chief Conservator of
Supported PDF not in the Forests (HoFF),
form of Image PDF". Government of
Chhattisgarh.
14. During the course of hearing the matter was raised with the facts that the State Forest Research Institute has demanded a huge amount for submission of the report and also addressed a letter to the PCCF for information of prospective technology to be used in the proposed site and state government has submitted that the state is not able to pay such a huge amount and thus it is not feasible to proceed. It is further argued that MoEF & CC or the state government is authorized and before proceedings further or in case of final order or approval have to conduct study of impact assessment and procedure in accordance with the advice or expert report thus no fresh impact assessment is required at the level of this proceedings. If anyone is aggrieved by the EIA study done by the MoEF & CC or the State Government they have to challenge that report before appropriate forum. Once the MoEF & CC has proceeded on the basis of the EIA report that can never be interfered with unless and until there is any adverse effect and challenging the EIA that it was on the wrong scientific report. Nothing has been stated by the State Forest Research Institute that the process being adopted or anyway adversely affecting the biodiversity or ecosystem thus no adverse inference can be drawn.
15. The respondent project proponent has submitted that:
(i) The Respondent Vedanta is a leading natural resource company with considerable experience and expertise in scientific and technical exploration. It has been operating lead, zinc, silver, aluminium, iron mines in the States of Rajasthan, Chhattisgarh, Orissa, Karnataka and Goa apart from operating mines in South Africa and Liberia. It as been granted two composite licenses for copper-gold in the ate of Maharashtra. It has highly qualified and experienced scientists who carry out exploration work with the latest state-of-the-art technologies, both in grass-
root exploration and detailed prospecting. The Respondent Vedanta operates under the International Exploration Protocols, uses the Australian Joint Ore Reserves Committee (JORC) standards for reporting exploration results, and is committed to the preservation of ecological balance through the use of the latest scientific technology.
(ii) On 08.12.2015, the Mineral Resources Department of the Government of Chhattisgarh (the "State Government") notified an area of 607.9401 hectares known as the Baghmara Gold Block located near village Baghmara, tehsil Kasdol, district Balodabazaar-Bhatapara in the State of Chhattisgarh for auction of composite licence for the metal gold under the MMDR Act and the Mineral (Auction) Rules, 2015 (the "Auction Rules 2015") framed thereunder.
(iii) That the Project Proponent emerged as the successful bidder in the said auction. On 16.03.2016, the Project Proponent deposited the performance security of Rs.1.62 crores with the State Government in compliance with Rule 18(1) of the Auction Rules 2015.
(iv) The Department of Mineral Resources in the State Government issued a letter of intent (LoI) on 28.04.2016 for the grant of the composite licence to the Respondent Vedanta. However, since an extent of around 133.70 hectares on the western portion of the area overlapped with the Eco-sensitive zone of the Barnawapara Sanctuary, the Project Proponent requested the State Government to issue a revised LoI for an extent of 474.3 hectares by excluding the area that overlapped with the Eco-sensitive zone. The Project Proponent also submitted a revised sketch for 474.3 hectares on 10.03.2017.
(v) On 17.03.2017, the State Government issued an order amending the LoI dated 28.04.2016 where the area of grant was reduced to 474.3 hectares after excluding the area of 133.70 hectares that overlapped with the Eco- sensitive zone of the Barnawapara Sanctuary
(vi) The Project Proponent applied for the necessary statutory approvals and permissions in terms of the LoI conditions, including for prior approval under Section 2 of the Forest (Conservation) Act, 1980 (the "FC Act"). It is pertinent to mention that under Rule 18(2) of the Auction Rules 2016, the preferred bidder in the auction is considered the successful bidder upon obtaining all consents, approvals, permits and the like under the applicable laws for commencing prospecting operations.
(vii) That the State Government forwarded the proposal seeking prior approval under the FC Act to the Ministry of Environment, Forests and Climate Change (MoEF&CC) on 25.09.2018. The proposal was examined by the MoEF&CC. The Ministry sought additional information on the proposal, which was provided to them on 18.10.2018. The Regional Empowered Committee (REC) of the MoEF&CC approved the proposal in its meeting held on 17.12.2018
(viii) That on 12.03.2021, the Project Proponent Performance Security of Rs.1.62 crores submitted to the State Government in compliance with Rule 18(1) of the Auction Rules 2015
(ix) That on 30.06.2021, the MoEF & CC, after careful examination of the proposal and the approval granted by the REC, accorded Stage I (formal approval) under the FC act for exploration / prospecting operations only. The Project Proponent paid an amount of Rs.97.90 lacs towards net present value (NPV) and compensatory afforestation (CA) in the month of September 2021. On 02.11.2021, the MoEF&CC granted Stage II prior forest approval under Section 2 of the FC Act, including to carry out exploratory drilling in an area of 3.2395 hectares.
(x) That a bare reading of the terms and conditions imposed on the Project Proponent in the approval shows that the precautionary principle and principle of sustainable development were duly kept in mind by the MoEF&CC. Some of the strict conditions imposed in the approval include:
(a) The prior approval is only for resource assessment and mapping and "does not confer in any manner any right to the State Government to divert such forest land for mining purpose".
(b) The Project Proponent is allowed exploratory drilling of only 51 boreholes of 4" diameter over the 414.415 hectares of forest land. It has been directed to comply with MoEF&CC Guidelines dated 04.07.2014 on drilling. The Project Proponent has been mandated to plant 20 tall trees per bore hole area at its own cost in addition to paying the NPV and CA charges.
(c) The Project Proponent is required to seek permission of the Divisional Forest Officer before entering into the forest area and digging boreholes. Proper plugging of the borehole is required to be done after completing exploration works to the satisfaction of the Divisional Forest Officer.
(d) There is a prohibition on felling of trees for exploration activities. There is also a prohibition on construction, including the construction of new roads. The Project Proponent has been directed not to undertake any activity at night to minimize disturbance.
Clearly, strict stipulations have been prescribed in the forest approval to ensure that there is no damage to the forest area. The Project Proponent respectfully submits that the MoEF & CC has applied the precautionary principle with the principle of sustainable development while granting the FC Act approval for exploration works.
(xi) That it is pertinent to mention that the FC Act approval for drilling 51 exploratory boreholes over an area of 3.2395 hectares is spread across the total extent of 474.3 hectares that is the subject matter of the composite licence. It is not limited to Forest Section 254 admeasuring 144 hectares over which a grievance has been raised by the Applicant in the OA, which is clear from the sketch appended to this reply.
(xii) That it is important to note that at this stage, the project is purely an "exploration project" and the forest clearance has been granted for exploration/prospecting operations only, and not for any mining activity. It is only after the exploration works are completed and only if economical mineable reserves are identified during exploration that the issue of seeking a mining lease over the area will arise. Therefore, the concern of the Applicant regarding the Project Proponent carrying out mining activity in the area is completely misplaced at this stage.
That upon receiving the necessary statutory approvals, the Project Proponent requested the State Government to issue a formal order granting the composite licence and executing the licence deed. Rule 18(3) of the Auction Rules 2015 mandates that the State Government shall grant the composite licence to the successful bidder upon the bidder obtaining the necessary statutory approvals
(xiii) That on 29.04.2022, the Applicant filed the OA before the Principal Bench of this Hon'ble Tribunal seeking a direction prohibiting mining activity in Forest Section 254 measuring 144.6 hectares in of Baghmara Gold Block. The OA was registered as OA no. 328/2022 (Principal Bench) titled Sanjeev Agrawal vs Forest Department, Chhattisgarh & Anr.
(xiv) That it is pertinent to note that the Applicant has not raised any grievance with respect to the balance of the composite licence area of around 330 hectares. Even with respect to Section 254, the Applicant has withheld from this Hon'ble Tribunal that (a) after the committee constituted by the State Government under the Additional Principal Conservator of Forests submitted its report on 29.04.2020 regarding exploration in Forest Section 254, the Government had constituted a High-level Committee under the Principal Chief Conservator of Forests to review the findings of the earlier committee; (b) the High-level committee conducted site inspection and gave a report stating that exploration operations could be carried out in the Forest Section 254 but recommended that the Project Proponent should not be permitted to cut any trees. It was only thereafter that the MoEF&CC gave its approval under Section 2 of the FC Act. Clearly, the Applicant ought to have disclosed these facts in its letter application. The failure to disclose makes it clear that the Applicant has not come before this Hon'ble Tribunal with clean hand.
(xv) That vide order dated 09.05.2022, this Hon'ble Tribunal constituted a Joint Committee comprising a representative of the Regional Office of MoEF&CC Nagpur, Principal Secretary Mines in the Government of Chhattisgarh, State Pollution Control Board and the Collector Balodabazaar to undertake a site visit and look into the grievances of the Applicant. It is pertinent to again note at this stage that the grievance of the Applicant is limited to Forest Section 254 admeasuring around 144 hectares, and not the entire area that is the subject matter of auction.
(xvi) That the Joint Committee carried out the site visit of Section 254 and submitted a report dated 29.07.2022 to this Hon'ble Tribunal stating clearly that the Project Proponent could carry out the exploration works in compliance with the conditions set out in the forest and other statutory approvals. 5 of the 6 members of the Joint Committee (except the Additional District Magistrate (ADM) Balodabazaar) signed the report. It was only the ADM who gave a one-line dissent note stating that in his opinion the exploration work would have adverse effect on the forest and the environment.
(xvii) That the Applicant's proposal to carry out exploration works in the Forest Section 254 has been fully examined at three different stages by committees having expertise in the area of forests, viz. (a) first, by the High-Level Committee constituted by the State Government under the Principal Chief Conservator of Forests, (b) thereafter by the REC and the MoEF&CC, and (c) finally, by the Joint Committee constituted by this Hon'ble Tribunal. Both the State High-Level Committee and the Joint Committee (5:1) made their recommendation in favour of the Project Proponent. Further, the Respondent Vedanta reiterates that the MoEF&CC has applied the precautionary principal and the principle of sustainable development at the time of examining and approving the application for grant of prior approval under Section 2 of the FC Act. The Applicant has referred only to the committee constituted under the Additional Principal Conservator of Forests without specifying that the recommendations of the committee was reviewed by the High-Level Committee, which made its recommendation in favour of the Project Proponent. Therefore, the demand in the OA for initiating action against the forest officials is without any basis. (xviii) That the Applicant has merely made bald allegations of violation of applicable laws and ignoring the forest area without specifying as to how the forest area would get degraded if the exploratory drilling is restricted to the already broken-up area of the forest road. The Applicant has not even adverted to the strict condition imposed in the forest approval that the Project Proponent cannot cut any tree, and will utilize only the already broken forest road for drilling purposes. The entire operations are to be monitored by the Divisional Forest Officer. Clearly, the allegation in the OA of degradation of the forest area or violation of law or threat on the existence of wildlife of the area are without any basis, and hence, specifically denied.
(xix) That the Project Proponent has already made substantial investments in the project, including towards payment of performance security, NPV and CA. Further, the Auction Rules 2015 stipulate specific time periods within which the composite licence is to be executed, failing which the performance security is forfeited and even the grant is cancelled. It is respectfully submitted that the Project Proponent will suffer grave harm and irreparable injury if the final hearing of the OA is delayed and also if the State Government does not pass the final order granting the composite licence and executing the licence deed expeditiously.
(xx) In so far as the 2017 recommendation by the Principal Chief Conservator ofForests to the Principal Secretary, Forests, regarding expansion of the Baranwapara forest reserve to include Section 254 among other areas is concerned, it is submitted that no decision has been taken by the State Government in this regard. In any case, the exploration works would not affect the forest cover or disturb the wildlife of the area, which are also the specific conditions imposed by the MoEF&CC in the forest approval.
16. It is to be noted that after the consideration of the report the State Government vide order dated 17.03.2017, amended the order dated 28.04.2015 and in place of 608 hectare land it has been reduced to 474.30 hectare and accordingly the MoEF & CC has issued the order for that area only. In view of the above facts, the contention of the learned counsel for the applicant/applicant in person with the grievance of inclusion of Section 254 measuring 144 hectare of the land is not substantiated and that is still pending at the level of the State Government or the MoEF & CC.
17. It is to be noted that forest clearance stage-1 and stage-2 was taken by the project proponent for prospecting/exploration activity only and not for mining activity and the present area has not any economic resource potential for mining and since drilling has not been started, hence there is no damage in the existing flora and fauna and not affected ecosystem in the said area. It is further submitted that drilling machine which are going to be used are specially designed to drill in dense forest area to avoid damage to forest and previously GSI has already conducted the survey having drilling by using the existing path and the project proponent will also follow the same path. The condition no.2 as issued by the MoEF & CC specifically provided that the prior approval of Government of India under Section 2 of Forest Conservation Act for prospecting in this forest area under consideration is only for resource assessment and mapping and does not confer in any manner any right to the state government to divert such forest land under section 2 (II) of Forest Conservation Act, 1980 for mining purposes. Precautions have been taken that the borehole in the forest area will be with prior permission of the concerned DFO and the detail of which shall be forwarded to the Government of India, MoEF & CC. There is specific conditions that there shall not be any tree felling and not to cause any loss to the flora and fauna in the surrounding area. It is further directed that no new road shall be constructed by the agency for transporting prospecting tools and that no other construction activities shall be done on the forest land. Any change in the diameter of borehole a and number of boreholes will be reported to the concerned regional officer of the Central Government and further that no labour can shall be established on the forest land. It is to be noted that the Government of Chhattisgarh notified the area in December, 2015 and later on a process of bidding was conducted and vide letter dated 28.04.2016 grant of composite license was granted by the state government for only 474.3 hectares by excluding the area that overlapped with the eco-sensitive zone. The State Government have further amended it and excluded the area which was overlapping with the eco-sensitive zone and it was sent to the MoEF & CC and the MoEF &Cc examined the proposal and approval granted by the REC and accorded stage-1 forward approval under the FC Act for exploration and further after NPV and compensatory a forestation stage-II forest approval under section 2 of the FC Act was granted. It is further argued that the FC approval for drilling 51 exploratory boreholes over an area of 3.2395 hectare is spread across the total extent of 474.3 hectare that is the subject matter of the composite license and not limited to forest section 254 as raised by the applicant and further that project is purely and exploration project and the forest clearance has been granted for exploration/prospecting operations only, and not for any mining activity. It is only after the exploration work are completed and only if economic measurable reserves are identified during exploration then the issue of seeking of mining lease over the area will arise to the further considered by the concerned ministry, MoEF and &CC and State Government. It is further argued by the applicant in person that the order issued by the MoEF and &CC and State Government are in violation of the eco-sensitive zone which can be reassessed and reconsidered by the authorities concerned. In reply thereof, the respondents submitted that the grievance as stated by the applicant may be raised when the final order is passed by the competent authority, state government or the MoEF & CC and if aggrieved by the order, the applicant or any person aggrieved have a right to challenge that order before the appropriate forum and this is a formal approval at the stage-I and stage-II which has neither challenged by the applicant nor any point has been raised by the applicant as to how the activities will adversely affect the flora and fauna and ecology of the area without any further assessment. The high level committee including the representative of the MoEF & CC and the Member of the IRO has suggested that the exploration operation could be carried out subject to precaution that no trees shall be damaged and this condition has already been put by the MoEF & CC in the formal approval.
18. The matter was initiated on the basis of letter petition sent by the petitioner Sanjeev Agrawal, RTI Activist, Raipur, Chhattisgarh raising the question of inclusion of land no. 254 and cutting of trees. It is admitted fact that the first committee did not recommended block no. 254 area 144.60 ha for the reasons that the proposal for increasing the eco- sensitive zone was under consideration and after considering the report the State Government vide letter dated 17.03.2017 modified its previous order dated 28.04.2015 and reduce the gold block to the area of 474.30 ha.
19. While economic development should not be allowed at the cost of ecology or by causing widespread environmental destruction, the necessity to preserve ecology and environment should not hamper economic and other development. Both development and environment must go hand in hand. In other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment [Indian council for enviro-legal action v union of India [1996]5scc 281]. The traditional concept that development and ecology are opposed to each other is no longer acceptable [Vellore citizens welfare forum v. union of India [1996]5scc 647].
20. In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the rule of law provides the cornerstone. The rule of law is to be distinguished from rule by the law. The former comprehends the setting up of a legal regime with clearly defined rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process. The rule of law postulates a law which is answerable to constitutional norms. The law in that sense is accountable as much as it is capable of exacting compliance. Rule by the law on the other hand can mean rule by a despotic law. It is to maintain the just quality of the law and its observance of reason that rule of law precepts in constitutional democracies rest on constitutional foundations. A rule of law framework encompasses rules of law but it does much more than that. It embodies matters of substance and process. It dwells on the institutions which provide the arc of governance. By focusing on the structural norms which guide institutional decision making, rule of law frameworks recognize the vital role played by institutions and the serious consequences of leaving undefined the norms and processes by which they are constituted, composed and governed. A modern rule of law framework is hence comprehensive in its sweep and ambit. It recognizes that liberty and equality are the focal point of a just system of governance and without which human dignity can be subverted by administrative discretion and absolute power. Rule of law then dwells beyond a compendium which sanctifies rules of law. Its elements comprise of substantive principles, processual guarantees and institutional safeguards that are designed to ensure responsive, accountable and sensitive governance.
21. The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools - conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges - of how they have been shaped by humanity's interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity's actions have charted. The environmental rule of law seeks to facilitate a multi- disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognizes that the 'law' element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts. There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. The universe of nature is indivisible and integrated. The state of the environment in one part of the earth affects and is fundamentally affected by what occurs in another part. Every element of the environment shares a symbiotic relationship with the others. It is this inseparable bond and connect which the environmental rule of law seeks to explore and understand in order to find solutions to the pressing problems which threaten the existence of humanity. The environmental rule of law is founded on the need to understand the consequences of our actions going beyond local, state and national boundaries. The rise in the oceans threatens not just maritime communities. The rise in temperatures, dilution of glaciers and growing desertification have consequences which go beyond the communities and creatures whose habitats are threatened. They affect the future survival of the entire eco- system. The environmental rule of law attempts to weave an understanding of the connections in the natural environment which make the issue of survival a unified challenge which confronts human societies everywhere. It seeks to build on experiential learnings of the past to formulate principles which must become the building pillars of environmental regulation in the present and future. The environmental rule of law recognizes the overlap between and seeks to amalgamate scientific learning, legal principle and policy intervention. Significantly, it brings attention to the rules, processes and norms followed by institutions which provide regulatory governance on the environment. In doing so, it fosters a regime of open, accountable and transparent decision making on concerns of the environment. It fosters the importance of participatory governance - of the value in giving a voice to those who are most affected by environmental policies and public projects. The structural design of the environmental rule of law composes of substantive, procedural and institutional elements. The tools of analysis go beyond legal concepts. The result of the framework is more than just the sum total of its parts. Together, the elements which it embodies aspire to safeguard the bounties of nature against existential threats. For it is founded on the universal recognition that the future of human existence depends on how we conserve, protect and regenerate the environment today.
22. In its decision in Hanuman Laxman Aroskar vs Union of India,[2019] 15 SCC 401 the Court, recognized the importance of protecting the environmental rule of law. The court observed:
"142. Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm.
Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our ecosystem.
"143. Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many instances, these laws and institutions have helped to slow down 8 or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation and enforcement -- both in developed and developing countries alike ...
"156. The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is founded on the rule of law emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution. Proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution."
23. In its first global report on environmental rule of law in January 2019, the United Nations Environment Programme ("UNEP") has presciently stated:
"If human society is to stay within the bounds of critical ecological thresholds, it is imperative that environmental laws are widely understood, respected, and enforced and the benefits of environmental protection are enjoyed by people and the planet. Environmental rule of law offers a framework for addressing the gap between environmental laws on 9 the books and in practice and is key to achieving the Sustainable Development Goals. Successful implementation of environmental law depends on the ability to quickly and efficiently resolve environmental disputes and punish environmental violations. Providing environmental adjudicators and enforcers with the tools that allow them to respond to environmental matters flexibly, transparently, and meaningfully is a critical building block of environmental rule of law."
24. The need to adjudicate disputes over environmental harm within a rule of law framework is rooted in a principled commitment to ensure fidelity to the legal framework regulating environmental protection in a manner that transcends a case-by-case adjudication. Before this mode of analysis gained acceptance, we faced a situation in which, despite the existence of environmental legislation on the statute books, there was an absence of a set of overarching judicially recognized principles that could inform environmental adjudication in a manner that was stable, certain and predictable. In an article in the Asia-Pacific Journal of Environmental Law (2014), Bruce Pardy describes this conundrum in the following terms:
"Environmental regulations and standards typically identify specific limits or prohibitions on detrimental activities or substances. They are created to reflect the principles and prohibitions contained in the statute under which they are promulgated. However, where the contents of the statute are themselves indeterminate, there is no concrete rule or set of criteria to apply to formulate the standards. Their development can therefore be highly political and potentially arbitrary. Instead of serving to protect citizens' environmental welfare, an indeterminate environmental law 10 facilitates a utilitarian calculus that allows diffuse interests to be placed aside when they are judged to be less valuable than competing considerations."
25. However, even while using the framework of an environmental rule of law, the difficulty we face is this - when adjudicating bodies are called on to adjudicate on environmental infractions, the precise harm that has taken place is often not susceptible to concrete quantification. While the framework provides valuable guidance in relation to the principles to be kept in mind while adjudicating upon environmental disputes, it does not provide clear pathways to determine the harm caused in multifarious factual situations that fall for judicial consideration. The determination of such harm requires access to scientific data which is often times difficult to come by in individual situations.
26. In an article in the Georgetown Environmental Law Review (2020), Arnold Kreilhuber and Angela Kariuki explain the manner in which the environmental rule of law seeks to resolve this imbroglio:
"One of the main distinctions between environmental rule of law and other areas of law is the need to make decisions to protect human health and the environment in the face of uncertainty and data gaps. Instead of being paralyzed into inaction, careful documentation of the state of knowledge and uncertainties allows the regulated community, stakeholders, and other institutions to more fully understand why certain decisions were made."
The point, therefore, is simply this - the environmental rule of law calls on us, as judges, to marshal the knowledge emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the 11 imperfect world that we inhabit, provides a roadmap to deal with environmental law.
27. In a recent decision of the Court in Bengaluru Development Authority vs Sudhakar Hegde 2020 scc online sc 328, the Hon'ble Supreme Court held:
"107. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth...
"108. Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions...
"109. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place."
28. It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship". This indicates that while applying the concept of "sustainable development" one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand and environmental protection on the other hand.
29. In view of the principal of sustainable development and in view of the fact that MoEF & CC has already done the exercise and took a decision on the basis of the expert report and issued the order dated 30.06.2021, we summarise our conclusions as follows:
(i) The directions issued by the MoEF & CC dated 30.06.2021 and conditions put in the letter must be strictly complied with by the project proponent and only 4 inch diameter drilling is to be done by use of foldable machines in 51 bore wells/boreholes under the supervision of the committee constituted under the chairmanship of Principal Chief Conservator of Forest (PCCF), Ministry of Environment, Forest and Climate Change, Government of India.
(ii) The State Government/MoEF & CC has to take independent decision with regard to the block 254 comprising 144.6 ha, according to rules, considering EIA report.
(iii) The user agency shall prepare a plan to plant 20 tall trees for one borehole in area. The cost of preparation of plan and plantation shall be borne by the user agency.
(iv) No tree felling shall be undertaken for exploration activities and the user agency shall be responsible for any loss to the flora and fauna and further that no new road shall be constructed by the user agency for transporting prospecting tools and machines. All the conditions laid down in the approval letter dated 30.06.2021 must be complied with and the PCCF/ concerned Chief Wild Life Warden shall periodically monitor and to take necessary action according to law.
(v) The respondents are directed to strictly comply the above directions and State Pollution Control Board with the Forest Department shall periodically monitor the compliance and in case of any violation they have to proceed in accordance with law.
30. With these observations, Original Application No. 103 of 2023 stands disposed of accordingly.
Sheo Kumar Singh, JM Dr. Afroz Ahmad, EM 10th October, 2023 O.A No. 103/2023 (CZ) PU