National Green Tribunal
Hasdeo Aranya Bachao Sangharsh Samiti vs The Secretary Union Of India on 19 December, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item Nos. 01 & 02 Court No. 1
NATIONAL GREEN TRIBUNAL, CENTRAL BENCH
SUCHANA BHAWAN, IIIRD FLOOR, ARERA HILLS
(By Hybrid Mode)
Appeal No. 12/2019(CZ)
(I.A. No. 69/2019 & I.A. No. 99/2020)
Sudiep Shrivastava Appellant
Versus
Union of India & Ors. Respondent(s)
WITH
Appeal No. 16/2019(CZ)
(I.A. No. 82/2019, I.A. No. 96/2019 & I.A. No. 15/2021)
Hasdeo Aranya Bachao Sangharsh Samiti Appellant
Versus
Union of India &Ors. Respondent(s)
Date of hearing: 19.12.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Appellant(s): Mr. Saurabh Sharma, Advocate for Appellant
Respondent: Mr. Atmaram N.S. Nadkarni, Senior Advocate with Mr. Kunal Verma &
Ms. Yugandhara Pawar Jha, Advocates for Rajasthan Rajya Vidyut
Utpadan Nigam Limited (PP)
ORDER
1. This common order will deal Appeal Nos. 12 and 16/2019(CZ) which have been preferred against same EC dated 12.07.2019 for Parsa Opencast Coal Mining Project of 5 MTPA and Pit Head Coal Washery of 5 MTPA of M/s Rajasthan Rajya Vidyut Utpadan Nigam Limited in an area 1 of 1252.447 ha at Hasdeo-Arand Coalfields in Districts Surguja and Surajpur (Chhattisgarh).
2. The impugned EC shows that it has been granted on recommendation of the EAC dated 21.02.2019, considering benefits of the project which include power generation, improvement of physical and social infrastructure, boosting of local economy. CSR activities for Rural Infrastructure development, Health & Sanitation, Education, Skill and entrepreneurship development, livelihood Development & farmers productivity. EC is subject to conditions with regard to compliance of environmental norms and taking mitigation measures.
3. Minutes of EAC dated 21.02.2019 for appraisal of the project are as follows:-
"Parsa Opencast Coal Mining Project of 5 MTPA and Pit Head Coal Washery of 5 MTPA of M/s Rajasthan Rajya Vidyut Utpadan Nigam Limited in an area of 1252.447 ha located at Hasdeo Arand Coalfields in Districts Surguja and Surajpur (Chhattisgarh)- For Environmental Clearance 43.4.3 The proposal was earlier considered by the EAC in its 26th meeting held on 15-16 February, 2018, wherein the Committee after deliberations and taking cognizance of the concerns raised during public hearing, desired for certain clarifications and details in respect of the following:-
(i) The response of the project proponent 'MoEF&CC will grant Environment Clearance to the project only after thorough scrutiny of EIA/EMP Report through Expert appraisal Committee' to the queries raised during public hearing regarding authenticity of data and facts mentioned in the EIA/EMP reports, was not acceptable. The Committee asked for an undertaking in this regard to be furnished by the project proponent.
(ii) Comments from the State Tribal Welfare Department regarding permission for the project from Gram Sabha, impact on livelihood of tribal population, and their concurrence as per the provisions of the Panchayats Extension to Scheduled Areas Act, 1996 (PESA Act) as applicable in the instant case.
(iii) The State Water Resources/Irrigation Department of the State Government to assess the cumulative impact of diversion of streams, and exiting and proposed mining operations on Hasdeo River.2
(iv) Opinion of the State Wild Life Board regarding impact of existing and proposed mining operations on elephant movement and other wild life species needs to be sought, in view of part of the area proposed for Lemru Elephant Reserve.
43.4.4 The proposal was again considered by the EAC in its 341h meeting held on 24th July, 2018, wherein committee insisted for compliance of its earlier observations.
During the meeting held on 27th September, 2018, the committee noted the submission of the project proponent in response to its earlier observations. The same are reproduced as under:-
Sr. Observations of the EAC Status of compliance by the PP No.
1. Comments from the State Tribal RVUNL vide its letter dated 6th April Welfare Department regarding 2018 requested State Tribal Welfare permission for the project from Department to provide its comment and Gram Sabha, impact on livelihood the State Tribal Welfare Department, in of tribal population, and their turn, vide their letter dated 18th May concurrence as per the provisions 2018 sought comments from the of the Panchayats Extension to Collector, District Surguja & Surajpur Scheduled Areas Act, 1996 on the observation of the EAC. The (PESA Act) as applicable in the District Collector (DC) Surguja & instant case. Surguja vide their letters dated 28th May 2018 and 1st June 2018 respectively replied to State Tribal Welfare Department. Subsequently, State Tribal Welfare Department has forwarded the same to MoEF&CC vide its letter dated 7th June 2018.
2. The State Water It is informed that Water Resource Resources/Irrigation Department Department, Government of of the State Government to assess Chhattisgarh stated in its report that the cumulative impact of diversion "It can be concluded that there will of streams, and existing and be no cumulative adverse impact proposed mining operations on of Nala diversion and existing & Hasdeo river. proposed coal mining operation on Hasdeo River." NOC of proposed Nala diversion has been issued vide its letter no. 4708/F-7/25/31/S-
2/2018 dated 6th August 2018.
3. Opinion of the State Wild Life RVUNL vide its letter dated le May Board regarding impact of 2018 requested PCCF (Wildlife), State existing and proposed mining Wildlife Department to provide operations on elephant movement comments on the above query raised and other wild life species needs by EAC. The PCCF (Wildlife), State to be sought, in view of part of the Wildlife Department in its letter dated area proposed for Lemru Elephant 18th May 2018 to MoEF&CC informed Reserve. following to MoEF&CC-
(i) As per records of forest Department, Mining Lease Area of Parsa Opencast Coal Mine Project of 5 MTPA and Pit Head Coal Washery of 5 MTPA of M/s. Rajasthan Rajya 3 Vidyut Utpadan Nigam Limited in Districts Surguja & Surajpur (Chhattisgarh) does not fall in any notified protected area including national parks, wildlife sanctuaries, animal/elephant corridors etc. Proposed Project area also does not fall in 10 Km radius of an such protected area.
(ii) State Government vide letter No. F-
5-6/10-2/2009 dated 20th July 2009 rejected the proposal of Lemru Elephant Reserve. So, Lemru Elephant Reserve does not exist.
(iii) It was also decided that wildlife conservation and management has to be carried out by improving habitat of the existing national park and sanctuaries rather than creating new elephant reserve, national park and sanctuary.
(iv) As per records of local forest officials as well as study undertaken for Wildlife Conservation Plan for Parsa Opencast Coal Mine Project of 5 MTPA and Pit Head Coal Washery of 5 MTPA, this area is not a regular habitat/corridor of elephants. Although occasional visits of stray elephants have been reported in the area resulting into human-wildlife conflict and property damages.
(v) Keeping that in mind, an elaborate Wildlife Management Plan with an estimated cost of Rs.
12.16 Crs, has prepared by Mr. Ashok Masih (Retd Addl PCCF), Member of "Society for Social Services, Madhya Bharat Chapter, Bhilai" to mitigate the impact of project, if any. Effective mitigation measures have been taken particularly with reference to elephant movement and protection.
Wildlife Management Plan has also been approved by CWLW, Chhattisgarh vide letter dated 8th June, 2017.
(vi) In Wildlife Management Plan provisions to reduce human-
animal conflict, solar fencing, public awareness, establishment of Elephant Control Room at divisional 4 level, Elephant Protection Team at range level and Elephant Friend Group (Hathi Mitra Samooh) at concerned village level has been made.
It is further mentioned by the PCCF (Wildlife) that that Government of Chhattisgarh, after examining all the aspects of forest & wildlife, recommended forest proposal of 841.538 ha forest land for the Parsa Coal Block for diversion of forest land to MoEF&CC vide its letter dated 02nd May 2018.
The Committee, after deliberations and in view of recommendations of the Forest Advisory Committee (FAG), desired for inputs in respect of following:-
Comprehensive study on conservation of biodiversity and wildlife conducted by the ICFRE.
Opinion of Ministry of Law & Justice/ASG on applicability of the approval accorded by the then Hon'ble MoEF&CC vide order dated 23rd June, 2011 for prospecting in the said coal block/other coal blocks in Hasdeo Arand forest area pending final disposal of the matter in the Apex court. Success of reclamation works in the adjoining coal blocks (Tara & PEKB).
S. Observations Comments/Compliance
No.
1 Comprehensive study on conservation of Proposal for the study has been
biodiversity and wildlife conducted by submitted by ICFRE to State
the ICFRE Government.
RVUNL, vide its letter dated 10th
August, 2018 has deposited an
amount of Rs. 1,74,68,250/- i.e. 75% of Rs. 232.91 Lakhs based on the demand of DFO, Surguja for the study.
Subsequently, Govt. of Chhattisgarh vide its letter dated 29th January, 2019 has issued work order to ICFRE for aforementioned study.
Scope is for preparation of
Integrated Wildlife Management
Plan (IWMP), identification of
conservation area and the expert
committee of ICFRE will recommend
mitigations measures.
Study will be completed within 18
months from the date of issuance of
work order.
2 Opinion of Ministry of Law & Proposal of Forest Clearance for Parsa
Justice/ASG on applicability of the Coal Block was considered in FAC
approval accorded by the then Hon'ble meeting held on 19th December, 2018
after receipt of expert legal opinion from 5 MoEF&CC vide order dated 23rd ASG. June, 2011 for prospecting in the FAC noted that Additional Solicitor General of India (ASG) has tendered his said coal block/other coal blocks in opinion, that there is no legal restriction Hasdeo Arand forest area pending for FAC to consider the instant proposal. final disposal of the matter in the ASG opined that, Apex court "I am, therefore, of the opinion that there is no bar for the FAC to consider the proposal for in-
principle approval and the pending case before the Supreme Court has no bearing with the Parsa Coal Block' as such.
However, it must be clarified that the FAC is competent and not restricted in any manner to take any decision in regard to the proposed conversion of land on any scientific or environmental concern which it may have.
3 Success of reclamation works in the FAC in its meeting dated 19th December, adjoining coal blocks (Tara & PEKB) 2018 formed the following sub-committee to make a site inspection, examine the relevant issues and submit its report so that the matter can be placed before FAC again for final decision -
Shri Kanwaljeet Singh, APCCF, RO,
MoEF&CC, Nagpur
Shri S.S. Bajaj, Nodal Officer (FCA),
Govt. of Chhattisgarh
Shri Deepak Mohanty, Member, FAC
The sub-committee carried out the site visit on 8th January, 2019, except Shri. S S Bajaj, Nodal Officer, could not accompany the subcommittee Findings of sub-committee regarding success of reclamation works in the adjoining coal blocks-the view/findings are Though the mining operations in the Parsa East and Kante Basen coal block started in February, 2013 and are still going on, no mining operations have started in the Tara coal block, which is still intact.
More than five year have elapsed since the Hon'ble Minister has noted his observations on 23rd June, 2011 In the Parsa East and Kante Based 6 Open cast mine project the back filling and reclamation works have started from the year 2013-14 onwards and so far an area of approximately 161 ha has been back filled and 121.77 ha been treated with plantation and biological reclamation.
It pointed out that so far an area of 537.24 ha has already been broken up and sequential mining and reclamation is also going on and so far 161.63 ha has been back-filled, 79.70 ha physically reclaimed and 50.2 ha of internal dumps 43.62 ha of external dumps and 21.96 ha of other area have been reclaimed through plantation /biological reclamation.
Subsequent reclamation/plantations work is appreciable.
Accordingly, Stage I Forest Clearance has been issued by MoEF&CC vide its letter F. No. 8- 36/2018-FC dated 13th February, 2019.
4. The Committee also insisted for PCCF (Wildlife), State Wildlife compliance of its recommendations Department in its letter dated 18th in respect of opinion of the State May 2018 to MoEF&CC informed Wildlife Board on impact of existing following to MoEF&CC.
As per records of forest Department, and proposed mining operations on Mining Lease Area of Parsa Opencast elephant movement and other Wild Coal Mine Project of 5 MTPA and Pit life species needs to be sought, in Head Coal Washery of 5 MTPA of view of part of the area Proposed M/s Rajasthan Rajya Vidyut Elephant Reserve. Utpadan Nigam Limited in Districts Surguja & Surajpur (Chhattisgarh) does not fall in any notified protected area including national parks, animal/elephant Project area also does not fall in 10 Km radius of any such protected area.
State Government vide letter No. F-5-
6/10- 2/2009 dated 20th July 2009 rejected the proposal of Lemru Elephant Reserve. So, Lemru Elephant Reserve does not exist.
It was also decided that wildlife conservation and management has to be carried out by improving habitat of the existing national park and sanctuaries rather than creating new elephant reserve, national park and sanctuary.
As per records of local forest officials as well as study undertaken for Wildlife Conservation Plan for Parsa Opencast Coal Mine Project of 5 7 MTPA and Pit Head Coal Washery of 5 MTPA, this area is not a regular habitat/corridor of elephants.
Although occasional visits of stray elephants have been reported in the area resulting into human-wildlife conflict and property damages.
Keeping that in mind, an elaborate Wildlife Management Plan with an estimated cost of Rs. 12.16 Crs. has been prepared by Mr. Ashok Masih, (Retd. APCCF) Member of "Society for Social Services, Madhya Bharat Chapter, Bhilai" to mitigate the impact of project, if any. Effective mitigation measures have been taken particularly with reference to elephant movement and protection.
Wildlife Management Plan has also
been approved by CWLW,
Chhattisgarh vide letter dated 8
June, 2017.
In Wildlife Management Plan,
provisions to reduce human-animal
conflict, solar fencing public
awareness, establishment of
Elephant Control Room at divisional level, Elephant Protection Team at range level and Elephant Friend Group (Hathi Mitra Samooh) at concerned village level has been made.
43.4.6 During deliberations on the proposal, the Committee noted the following:-
The proposal is for environmental clearance to Parsa Opencast Coal Mining Project of 5 MTPA and Pit Head Coal Washery of 5 MTPA of M/s Rajasthan Rajya Vidyut Utpadan Nigam Limited in an area of 1252.447 ha located in Hasdeo-Arand Coalfields in Districts Surguja & Surajpur (Chhattisgarh).
Out of the total project area, forest land involved is 841.538 ha. For diversion of the said forest land to non-forestry purposes, stage-l forest clearance has been granted by the Ministry vide letter dated 13th February, 2019.
TOR for the project was granted on 23rd March, 2015. Public hearing was conducted by the State Pollution Control Board on 29th October, 2017 in District Surguja and 12th November, 2017 in District Surajpur. Main issues raised during public hearing included permission required from Gram Sabha, loss of agriculture and farmers affecting livelihood, impact on ground water availability, pollution concerns, cumulative impact of nearby/adjoining mining projects, diversion of nallah, etc. The project proponent has submitted the action plan along with the timelines and funding 8 management to address the issues, suggestions and the representations received during public consultations.
Mining Plan, including the Progressive Mine Closure Plan, has been approved by the Ministry of Coal vide their letter dated 10th November, 2016.
Baseline air quality values at ambient air quality monitoring stations, would be in the range of 20-32.30 ug/m3 for PM2.5, 31.80- 61.50 ug/m3 for PM10, SO2 from 8.70 -13.70 ug/m3 and NOx from 10.20-16.80 ug/ m3, and thus meeting the prescribed standards.
Detailed comments/inputs and the action plan submitted by the project proponent in response to its observations during the last meeting held on 27th September, 2018, as stated in para 43.4.5, were found to be in order. However, the same requires monitoring at regular intervals for effective implementation of the action plan and/or the commitments made by the project proponent.
43.4.7 The EAC, after detailed deliberations, recommended for environmental clearance to Parsa Opencast Coal Mining Project of 5 MTPA and Pit Head Coal Washery of 5 MTPA of M/s Rajasthan Rajya Vidyut Utpadan Nigam Limited in an area of 1252.447 ha located in Hasdeo- Arand Coalfields in Districts Surguja & Surajpur (Chhattisgarh), subject to the orders of Hon'ble Supreme Court in Civil Appeal No.4395/2014 in the matter of Rajasthan Rajya Vidyut Utpadan Nigam Limited Vs Sudiep Shrivastava and other matters pending in Hon'ble Supreme Court or Hon'ble High Court of Chhattisgarh, and the specific conditions as below:-
The Committee shall monitor onsite implementation of the observations of the Water Resources Department of the State Government regarding nallah diversion, and also deliberate on the suggestions/comments of Tribal Welfare Department regarding applicability of PESA.
The EAC shall also review the implementation of Wildlife Management Plan approved by Chief Wildlife Warden, Government of Chhattisgarh, and the study conducted by 1CFRE on conservation of bio-diversity and wildlife as committed by the project proponent.
All terms and conditions stipulated in the stage-1 forest clearance dated 13th February, 2019 for diversion of 841.538 ha of forest land, shall be strictly complied with. All the public representations received in the Ministry raising environmental concerns, shall be suitably addressed by the project proponent, followed by their confirmation/endorsement by the State Govemment/SPCB.
Action plan submitted by the project proponent along with the timelines and funding management to address the issues, suggestions and representations received during public consultations, shall be strictly adhered to.9
The grant of environmental clearance shall be further subject to adherence to environmental safeguards as under:-
(i) The project proponent shall obtain Consent to establish from the State Pollution Control Board for the Coal Mining project of 5 MTPA and the Coal Washery of 5 MTPA prior to commencement of works.
(ii) To control the production of dust at source, the crusher and in-
pit belt conveyors shall be provided with mist type sprinklers.
(iii) Mitigating measures shall be undertaken to control dust and other fugitive emissions all along the roads by providing sufficient water sprinklers. Adequate corrective measures shall be undertaken to control dust emissions, which would include mechanized sweeping, water sprinkling/mist spraying on haul roads and loading sites, long range misting/fogging arrangement, wind barrier wall and vertical greenery system, green belt, dust suppression arrangement at railway siding, etc.
(iv) Continuous monitoring of occupational safety and other health hazards, and the corrective actions need to be ensured.
(v) Persons of nearby villages shall be given training on livelihood and skill development to make them employable.
(vi) To ensure health and welfare of nearby villages, regular medical camps shall be organized at least once in six months.
(vii) A third party assessment of EC compliance shall be undertaken once in three years through agency like ICFRI /NEERI/IIT or any other expert agency identified by the Ministry.
(viii) Permission for ground water withdrawal shall be obtained from Central Ground Water Authority (COWA), if applicable. Total fresh water requirement shall not exceed 2385 cum/day, proposed to be met from mine sump water or from Right Bank Canal of Hasdeo Barrage.
(ix) Study shall be carried for sustenance of water supply to cater to projected demand of the proposed washery from the abandoned mine(s) throughout planned life of the washery.
(x) Impact of proposed project/activity on hydrological regime of the area shall be assessed and report be submitted.
(xi) Ash content below 34% should be maintained in washed coal to be transported beyond 500 km for use in thermal power plants.
(xii) The washing technology so chosen should conform to 'Zero Liquid Discharge'.
10(xiii) More locations (4-5 nos) to be identified in downwind areas in the buffer zone for ambient air quality monitoring in consultation with the State Pollution Control Board.
(xiv) Disposal of washery rejects shall be in accordance with the extant policy and guidelines, and environment friendly.
(xv) Thick green belt of adequate width to be provided around the washery to mitigate/check the dust pollution. A 3-tier avenue plantation should also be developed along vacant areas, storage yards, loading/transfer points, and also along internal roads/main approach roads."
4. From the above, it is seen that FC for diversion of forest land for non-forest purpose stands granted on 13.02.2019 which is not under challenge.
5. The grounds for challenging the EC inter-alia are that the NGT in Appeal No. 73/2012 has quashed Forest Clearance in respect of Parsa Coal Block (against which appeal is pending before the Hon'ble Supreme court, as noted in the impugned EC), no forest clearance has been granted, no further study has been carried out in pursuance of order of this Tribunal in Appeal No. 73/2012. No EC could have been granted when study was still pending with ICFRE, public hearing is not proper, data has been concealed and it is wrongly assumed that there is no issue of Elephant Corridor with regard to Parsa Coal Block.
6. Reply has been filed by the PP to the application for condonation of delay.
7. We have heard learned Counsel for the appellant and the PP.
Learned counsel for the appellant reiterated the grounds for challenging the EC as raised in the memo of appeal.
8. Learned Counsel for the PP has submitted that Forest Clearance has been subsequently granted and the earlier EC having attained finality, revalidation/amendment letters dated 25.06.2015 and 11 29.12.2015 having not been challenged and EC for expansion having been granted after following due process, there is no scope of interference by this Tribunal. There is no merit in the contention that EC dated 21.12.2011 is nullity when challenge against the said order has already attained finality in view of order of this Tribunal dated 25.09.2014 in Appeal No. 33/2013 which has admittedly been affirmed in further appeal by Hon'ble Supreme Court.
9. On due consideration, while we condone delay in filing the appeal, we do not find any merit on merits. Main ground against the EC is quashing of forest clearance by the Tribunal earlier which stands stayed by the Hon'ble Supreme Court. Due process has been followed. No damage to environment is shown. Thus, we are inclined to dismiss the appeals. However, learned counsel for the appellants submitted that IA has been filed by the appellants in proceedings pending before the Hon'ble Supreme Court in Civil Appeal No. 4395/2014, Rajasthan Rajya Vidyut Utp. Nigam Ltd. vs. Sudiep Shrivastava & Ors. It is submitted that order of this Tribunal should not prejudice remedy of the appellant in the said IA.
10. Accordingly, these Appeals are dismissed without prejudice to the remedies of the parties in pending proceedings before the Hon'ble Supreme Court.
All pending IAs will also stand disposed of.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM 12 Prof. A. Senthil Vel, EM December 19, 2022 Appeal No. 12/2019(CZ) & Appeal No. 16/2019(CZ) SN 13