National Green Tribunal
Abdul Kalam vs State Of Madhya Pradesh Through Chief ... on 18 May, 2026
Item No.08
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Original Application No.63/2024(CZ)
(I.A. No.148/2024)
Abdul Kalam Applicant(s)
Vs.
State of Madhya Pradesh & Ors. Respondent(s)
Date of Hearing: 18.05.2026
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE MR. SUDHIR KUMAR CHATURVEDI, EXPERT MEMBER
For Applicant (s): Mr. Dharamvir Sharma, Adv.
For Respondent(s) : Ms. Parul Bhadoria, Adv. for MPPCB & SEIAA
ORDER
1. The issue raised in this application is illegal operation of stone crushers and mining quarries unit in Niwari District. The area being Eco-
Sensitive Zone and declared as Orchha Wildlife Sanctuary on dated 2nd January, 2018, the operation of the units threatens the existence of rich flora and fauna, as well as is adversely affecting the health of people and fauna of the region. The continuous operation of the mining units till date is in blatant violation of the Forest Conservation Act, 1980, Madhya Pradesh Minor Mineral Rules, 1996, Water (Prevention & Control of Pollution) Act, 1974 as well as Air (Prevention & Control of Pollution) Act, 1981. Moreover, the mining continued even after the order dated 13.09.2023 passed in O.A. No. 36/2023 (Brijendra Mala vs. State of M.P.).
2. It is further alleged that the Project Proponent/Respondent No.7 has constructed temporary bridge upon the nalla by dumping dust using 1 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
cement pipes and has obstructed the flow of nalla in violation of Water (Prevention and Control of Pollution) Act, 1974.
3. Notices were issued to the Respondents with direction to submit the reply. Replies have been filed.
4. During the course of hearing, a Joint Committee consisting the members of representative of the District Collector, Niwari and the State Pollution Control Board, was constituted with direction to submit the factual and action taken report. The reply has been filed. Action taken report and para-wise reply has also been filed.
5. We have heard the learned Counsel for the parties and perused the records.
6. Submissions of the learned Counsel for the Applicant are that the other Respondent/Project Proponents are operating illegally in violations of the citing criteria as well as non-compliance of various consents conditions and jointly and severely creating cumulative impact on air environment in the area which directly impacting to the health of nearby habitants, road passers as well as domestic and wildlife animals. Therefore, cumulative impact assessment is required for sustaining the ambient air standard in the area. The Mining Department, State of Madhya Pradesh has allotted various stone mines which are in operations without having proper clearances and consents. The Respondent no. 12 (PP) Shri Kailash Narayan Gupta is operating stone mines adjacent to Sainik School Jhansi, interstate boundary at Khasra No.1/1 Village Pratap Pura District Niwari.
However, time and again complaints were made by villagers as well as local residents to the District Administration. The Applicant has procured various documents from the office of Mining Department and Mining Office, Niwari, to substantiate how continuous illegal mining, 2 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
transportations are carried at interstate boundary flouting environmental as well as forest norms. It has also come in the notice of Applicant that the Respondent No. 12 PP is operating its mine in close proximity to the forest range Orchha in connivance with the Respondent No.6/Mining Officer.
7. It is further submitted that the Bebedi Naala is flowing through village Pratap Pura, Bhojpura and Jhijora through various Khasra Nos. 267/1, 273/2/3/4, 273/2/3/2/2, 273/2/3/2/1 of Village Pratap pura and Khasra no. 4/6, 2/2, 3/1/1, 3/1/4/, 3/1/2/1, 3/1/2/2, 5/1/1, 5/2/1, 5/2/2 of Village Bhojpura and Khasra No. 678 of Village Jhijora as well as Khasra No. 226/1 of Sitapura Village. Surprisingly, mines are being illegally operated with consents from Respondent No. 6 mining officer and natural flow of Babedi Naala and forest area has been disrupted. Respondent No.7/(PP) Vishal Gupta has constructed temporary bridge upon the Naala by dumping dust using cement pipes and has obstructed the flow of Naala which is an offence under Water Prevention and Control of Pollution Act 1974 but no action has been taken by the competent authority in this regard.
8. Learned Counsel for the Applicant has further argued that the Ministry of Environment, Forest and Climate Change has notified and declared Sanctuary Area named Orchha Wildlife Sanctuary on dated 2nd January, 2018. The Orchha Wildlife Sanctuary is extremely rich in flora and fauna and the said Sanctuary is also rich in biodiversity; the Orchha Wildlife Sanctuary full of various wild, natural species which include and contains 4 tortoises' species, 16 kinds of fish species, 97 bird species and 4 rare kind of vulture species in Orchha Wildlife Sanctuary. In fact, in the instant notification declaring Orchha Wildlife Sanctuary on 2nd January 2018 any commercial mining in the said 3 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
Sanctuary Area is under prohibited categories as also mentioned in description. Beside it commercial mining is as follow:-
"(a) New (minor and major minerals), stone quarrying and crushing units shall prohibited with immediate effect except for meeting the domestic needs of bona fide local residents including digging of earth for construction or repair of houses and for manufacture of country tiles or bricks for housing for personal consumption. (b) The mining operations shall be carried out in accordance with the order of the Hon'ble Supreme Court dated the 4th August, 2006 in the matter of T.N. Godavarman Thirumulpad Vs. UOI in W.P.(C) No.202 of 1995 and dated 21st April, 2014 in the matter of Goa Foundation Vs. UOI in W.P.(C) No.435 of 2012."
9. It is further argued that the Madhya Pradesh Mineral Policy, 2010, stipulates under Rule 3 (3.5) the use of high-level resolution Satellite data for detection of illegal mining. It also mandates use of grid-based maps at the time of sanctioning/renewing mining leases to ensure accurate location of the mining areas. The Respondent No.6/Mining Officer, has also not followed the said rule at the time of acceptance/renewal of mine lease. The process of Environmental Clearance as followed by State Environmental Impact Assessment Authority (SEIAA) does not reflect adequate information of application status of Environmental Impact Assessment for operational mines and particulars of lease holders (Project Proponent), with no information of compliance status. It is pertinent to mention here that the Lease Holder cannot operate the Stone Quarry without having EC renewed/ issued in his favour. In fact, this revels that, no compliance of the Environmental clearance has been fulfilled by the lease holders. This is in itself violation of the EC rules. In fact, it's an important aspects of EC issuance. The purpose of EC defeated if no compliances of the EC conditions are made.
4O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
10. The Joint Committee has submitted the report with the following facts:-
"B. OBSERVATIONS: -
1. The mining leases operating in the village Prataprura, Bhojpura, Sitapura, Jijora and Baberi forest situated near the MP-UP Border have valid environmental clearance. The necessary permissions for mining from various departments like Directorate General of Mine Safety, MP PCB, SEIAA, etc.
2. That the distance of the village Prataprura and Bhojpura, Sitapura, Jijora and Baberi forest from the Rama raja Temple in Orrcha is almost ten kilometers. That the Mining Department, State of Madhya Pradesh has allotted and permitted the stone mines only after evaluating the necessary permissions as required under the law.
These allotments were granted only after the permissions from the Forest Department, Revenue and the Gram Panchayat and the consent under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 from the State PCB was granted.
3. That the contentions raised in para 4.4 of the OA that the "Respondent no. 12 (PP) Shri Kailash Narayan Gupta is operating stone mines adjacent to Sainik School Jhansi, interstate boundary at Khasra No. 1/1 Village Pratap Pura District Niwari" is factually incorrect since the mine of Shri Kailash Narayan Gupta is situated 300 metres away from the School. This distance is in compliance of the order dated 09.07.2020 by Hon'ble NGT (PB) passed in OA No. 304/2019(M. Haridasan & Others Vs State of Kerala).
4. The stone mining has a 30 feet overburden bund has been made in the direction of the Sainik School, Jhansi. A stone crusher of Shri Sanjeev Bajpayi operating in the vicinity of the Sainik School has already been closed. The mine of Shri Vinod Kumar Agarwal has also been closed.
5. During the inspection the Deputy District Forest Ranger of the Forest Department was present. It was observed that mines situated in the Prataprura and Bhojpura, Sitapura, Jijora villages and Baberi forest are not within 2 kms which is the notified range of the Eco- Sensitive Zone of the Orchha Wildlife Sanctuary. The copy of the MOEF&CC notification S.O. 35(E) dated 02.01.2018 is filed herewith 5 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
as Annexure A-7. The distance of the mines situated in these villages is about 3.5 km away from the Eco-Sensitive Zone of the Orchha Wildlife Sanctuary.
6. The contention of the applicant in para 4.6 of the OA that the natural flow of the Babedi Nala has been obstructed is factually incorrect. The natural flow of the nallah has been not changed. However, a bridge has been contracted over the nallah which is for the movement of the local villages and vehicles.
7. That there is no permission for mining granted within the Eco- Sensitive Zone of the Orchha Wildlife Sanctuary and there was no mining being carried out in this range.
8. The applicant in para 4.9 of the OA had stated "That at Khasra no. 4,6,7,8 of village Bhojpura district Niwari, in the state of Madhya Pradesh and Khasra no. 267/1/1, 268/2, 269/2 in village Pratap Pura, Niwari mines are also in full swing and operating beside National Highway Jhansi-Khajuraho in state of Madhya Pradesh. In fact, these crusher units are operating close to National Highway and also creating air pollution. Needless, to state here that such mining activities beside being in violation of the above-said environmental laws, are also affecting visibility in winter season due to air dust coming out of mines while driving vehicles cannot be ignored."
The mines situated in Khasra no. 267/2, 268/2 and 269/2 in Village Pratap Pura and Khasra no. 04, 06, 07 and 08 in Village Bhojpura had permissons prior to the construction of the National Highway which is year 2021-22. At present also the mines suited in Khasra no. 268/2 and 269/2 in Village Pratap Pura and Khasra no. 04 and 06 in Village Bhojpura are more than 100 metre away from the National Highway. The mines situated in Khasra no. 267/2 Village Pratap Pura and Khasra no. 07 and 08 in Village Bhojpura were renewed only after allowing the mining at the distance of 100 metre away from the National Highway. It is pertinent to mention that as per rule 30 (21) of the Madhya Pradesh Minor Mineral Rules 1996 in order to ensure safety there has been a construction of overburdened bed between the mines and the National Highway thereby ensuring that there is no problems on the Highway due to the operation of mines.
9. In the Prataprura and Bhojpura, Sitapura, Jijora villages and Baberi forest villages there is no mine operating in the forest area and 6 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
the applicant has not produced any document in order to establish the same.
The mining activities are conducted in the private and revenue areas after the necessary permission from the respective departments have been provided in the Khajuraho Jhansi Four-Lane Highway the renewal of mining leases of the four mines were done as per rules and the mine situated before the construction of the highway have made overburden bund as well as the pollution control measures. That the Madhya Pradesh Mineral Policy 2010 came into force on 28.03.2013 and the mines under challenge were operating before the policy came into force, however the air pollution measures have been undertaken by the mines.
10. That the Blasting activities undertaken in these mines are conducted only after the necessary permissions from the Directorate General of Mineral Safety. This permission is granted only after the permissions from the Forest Department, Revenue and the Gram Panchayat.
11. That the mines mentioned in the original application have valid CTO under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 from the State PCB was granted. The mine leases of Shri Rahul Agarwal and Shri Pradeep Kumar Sahu had already expired. The other private respondents in the OA from Respondent No. 7 To Respondent No. 23 (Except Respondents No. 10 and No. 22) have valid consent and operating as per the terms and conditions of the CTO granted.
12. That the Rule 5(2)d of the Madhya Pradesh Minor Mineral Rules 1996 state that "5. Restrictions on the grant of '[trade quarry] or quarry lease. -
(1) No quarry lease, or '[tradequarry] shall be granted to any person unless such person is an Indian National or a company as defined in sub-section (1) of Section 3 of tire Companies Act, 1956(No. 1 of 1956) and satisfies such conditions prescribed in these rules.
Explanation. In case of a firm or any other association of individuals, for the purpose of this sub rule, a person shall be deemed to be an Indian National only, if all the members of the firm or association are citizens of India.
(2) No quarry lease, or '[trade quarry] shall be granted in respect of an area:-
7O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
(d) except for the mineral sand or bajri, within a distance of 100 metres from river banks, reserviour, canal dam any natural water course or nay water impounding structure and 50 metres from the nalla."
The Committee found that the mines mentioned in the OA are not situated within 100 meters of any river or lake. The Betwa River is almost 700 meters away from these mines. With regards to the nallah the distance of these mines is more than 50 metres from the nallah.
13. That the mine of Shri Sunil Gupta had expired and the Collector vide letter dated 20.09.2023 had order for a inspection of this mine. After the inspection a case of the illegal mining has been registered against Shri Sunil Gupta. The mine has received renewal within the stipulated period and the order of the renewal dated 06.05.2022.
14. That one Ramesh Khangar was conducting illegal mining activities and a case was registered against him.
15. That the land situated on Khasra no. 267/1/1, 268/2, 269/2 Village Pratap Pura, Niwari is private land where after the consent of the land owner the land is being used to store minerals. This land is separate from the mining activities. The consent letter from the land owner and the order of storage by Collector Office (Mining Division), District Niwari is hereby filed as Annexure A-14.
16. That only controlled blasting activities is undertaken in limited capacity conducted by a Registered Blaster. As per rule 30(24) of the Minor Mineral Rules 1996 the blasting activity is allowed only after seeking proper from office of DGMS, Gwalior, Madhya Pradesh.
17. That as per the Ministry of Environment, Forest and Climate Change Office Memorandum J11011/15/2012-1Α.ΙΠ(Μ) dated 20.03.2015 there is no need to take a fresh EC after due consideration and examination of relevant judicial pronouncements and the OMs issued in this regards, it is clarified that the Project Proponent which has a valid and subsisting EC for their mining project either under EIA Notification 1994 or EIA Notification 2006, will not be required to obtain fresh EC at the time of renewal of the lease. This is subject to the maximum period of validity of the EC being for mining lease for 30 years.
8O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
18. That in the present case the mines were operating after taking valid CTO from MP PCB. In compliance of the order dated 13.09.2023 passed by the Hon'ble NGT (CZ) in OA 36/2023 Brijendra Kumar Mala v State of MP & Ors. The compliance report of Mining Division, Collector office District Niwari in compliance of order dated 13.09.2023 passed in OA 36/2023 Brijendra Kumar Mala v State of MP & Ors. By Hon'ble NGT(CZ) is filed herewith as Annexure A-16.
19.These mines restarted their operation only after the issuance MOEF&CC notification. F. No. IA 3-22/11/2023-IA. III (E-208230) dated 03.11.2023 which was subsequently modified by notification F. No IA 3-22/11/2023-1A. III (Е 208230) dated 15.03.2024. The copy of both these notifications are filed herewith and marked as Annexure A-18 and A-19 respectively. The mining activities for minor minerals was allowed in light of the letter no. 2359 of State Environment Impact Assessment Authority (SEIAA) dated 21.12.2023."
11. The learned Counsel for the MPSEIAA has accepted the report of the Joint Committee and submitted that all environmental clearances issued by the State Environmental Impact Assessment Authority (SEIAA) are based on a comprehensive assessment of the documents submitted by project proponents through the Parivesh Portal. The evaluation of forest-related information is conducted in accordance with the 'Ekal Praman Patra' submitted by the project proponent, which must be approved by the competent authority or the Forest Department. Following this, a technical evaluation is carried out by the State Expert Appraisal Committee (SEAC), whose recommendations are then reviewed by SEIAA. The SEIAA appraises the cases based on these recommendations before issuing the final environmental clearance.
12. The submissions and arguments by the learned Counsel for the State of Madhya Pradesh are in line of MPSEIAA and in accordance with the report of the Joint Committee.
9O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
13. Learned Counsel for the State PCB has submitted that the Mining Department has been directed to comply the order of the Hon'ble Supreme Court of India and to comply the guidelines issued by the MoEF&CC for compliance of the EIA Notification, 2006.
14. Further arguments of the learned Counsel for the State are that the mining leases were granted only after obtaining necessary permissions from the Forest Department, Revenue Department, and Gram Panchayat. Furthermore, mining operations commenced only after securing environmental clearance and requisite consents related to air and water from the competent authorities. It is further submitted that, mine belonging to Mr. Kailash Narayan Gupta (Respondent No. 12), as mentioned in the complaint by Sainik School, is located at a distance of more than 300 meters. Additionally, a 30- foot-high overburden bund has been constructed along the mining boundary in the direction of the Sainik School as a protective measure. The lease of Mr. Sanjeev Bajpai, which was adjacent to the Sainik School, has already been closed in the past, and the mine operated by Mr. Vinod Kumar Agrawal has also been shut down.
15. During the course of the investigation, the Deputy Forest Ranger of the Forest Department was present to oversee and verify compliance with applicable environmental and forest conservation regulations. Upon thorough examination and site inspection, it was conclusively ascertained that the mining operations situated in the villages of Pratappura, Bhojpura, Sitapur, Jijaura, and Babedi Jungle do not encroach upon or fall within the legally designated Eco-Sensitive Zone (hereinafter referred as "ESZ") of the Orchha Wildlife Sanctuary. As per the prevailing regulatory framework and environmental protection guidelines, the Eco-Sensitive Zone surrounding the sanctuary has been 10 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
demarcated with a prescribed buffer zone of 2 kilometers, within which specific restrictions and prohibitions apply to ensure the preservation of ecological balance and biodiversity. The findings of the investigation affirm that the said mines are operating outside the stipulated buffer zone and are not in contravention of the environmental safeguards imposed under applicable laws, including the Wildlife (Protection) Act, 1972, and the relevant notifications issued by the Ministry of Environment, Forest and Climate Change. The Babedi Nala, which traverses through the villages of Pratappura, Bhojpura, Jijaura, and Sitapur, has not been subjected to any alteration that would result in the narrowing of its width or obstruction of its natural water flow. It is further submitted that a bridge has been constructed over the nala to facilitate safe and efficient movement of vehicles and local residents without disrupting the waterway. The construction of the bridge has been executed in a manner that ensures the continuous and unimpeded flow of water beneath it, thereby maintaining the ecological balance and hydrological integrity of the stream. Furthermore, no modifications have been made to the course or direction of the nala that would affect its natural drainage pattern. No permission has been granted for mining activities within the Eco-Sensitive Zone of the Orchha Wildlife Sanctuary, and no mines are operating within the designated Eco-Sensitive Zone and further the mining areas situated in the villages of Pratappura, Bhojpura, Sitapur, and Jijaura are located at an approximate distance of 3.5 kilometers from the boundary of the Orchha Wildlife Sanctuary. In accordance with the official notification issued by the MoEF&CC, Government of India, and published in the Gazette of India, New Delhi, dated 02/01/2018, a 2-kilometer radius from the periphery of the Orchha Wildlife Sanctuary has been 11 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
designated as an ESZ. The purpose of this designation is to provide a regulated buffer zone around the sanctuary to ensure the conservation of biodiversity, protect wildlife habitats, and prevent any environmentally detrimental activities within the prescribed limits. The location of the aforementioned mining areas outside the designated Eco-Sensitive Zone affirms that such operations do not fall within the restricted or prohibited zone as per the statutory guidelines.
16. It is further argued that the mines located in Khasra Nos. 267/2, 268/2, and 269/2 of Village Pratappura and Khasra Nos. 04, 06, 07, and 08 of Village Bhojpura, as mentioned in the complaint, were duly approved and operational prior to the construction of the national highway in the year 2020-21. At present, the mines situated in Khasra Nos. 268/2 and 269/2 of Village Pratappura and Khasra Nos. 04 and 06 of Village Bhojpura are located at a distance of more than 100 meters from the national highway. Additionally, during the renewal process of the mining leases for Khasra Nos. 267/2 and 07, the requisite distance of 100 meters from the national highway was duly maintained before granting approval. Furthermore, in the direction of the national highway, an overburden bund has been constructed as a safety measure in accordance with Rule 30(21) of the Madhya Pradesh Minor Mineral Rules, 1996, ensuring that no adverse impact arises due to the pre-approved mining operations in the area. Moreover, no mines are being operated on forest land in the villages of Pratappura, Bhojpura, Jijaura, and Babedi Jungle, and the complainant has failed to provide any evidence to substantiate claims of mining activities on forest land. All mining operations in these villages are being conducted strictly on privately owned or government-designated land, only after obtaining the necessary approvals from the competent authorities.
12O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
Following the construction of the Khajuraho Jhansi four-lane highway, the renewal of mining leases has been carried out in compliance with regulatory distance requirements. Furthermore, for pre-approved mines, an overburden bed has been established in the direction of the national highway as an additional safety measure to prevent any potential hazards or disturbances.
17. Learned Counsel for the State has further argued that as per Rule 5 of the Madhya Pradesh Minor Mineral Rules, 1996, mining leases can only be approved while maintaining a restricted distance of 50 meters from a stream and 100 meters from other water bodies such as rivers and ponds. In the case of the mines mentioned in the complaint, no pond or river is located within a 100- meter radius of the approved mining areas. The Betwa River is situated at an approximate distance of 700 meters. Furthermore, the approved mines have been sanctioned while ensuring a minimum distance of 50 meters from the stream flowing within the sanctioned area, in strict adherence to the applicable regulatory provisions. In Village Pratappura, storage has been approved on the vacant portions of private land bearing Khasra Nos. 267/1/1, 268/2, and 269/2, based on the consent of the landowner. The designated storage area is separate from the approved mining area.
Upon finding evidence of illegal mining, a case of illegal mining was registered against Ramesh Bangar. In the case of Sunil Gupta's mine, an objection was raised by the lessee due to a lack of prior notice regarding the inspection. Consequently, the Collector, vide Office Letter No. 470/Khaniij/20, Niwari, dated 20.09.2023, constituted a committee, and following the subsequent investigation, a case of illegal mining was duly registered. Additionally, the renewal of the mining 13 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
lease mentioned in the complaint had already been completed before the expiration of its tenure, as per Letter No. 207, dated 06.05.2022.
18. Learned Counsel for the rest of the Respondents have submitted reply and argued that the matter of validity of the Environmental Clearance granted under the recommendations of the DEIAA are pending before different writ petitions.
19. On the issue of expert report or recommendation of EAC/SEAC, the Hon'ble Supreme Court in (2019) 15 SCC 401: Hanuman Laxman Aroskar Vs. Union of India & Ors., has observed as follows:-
"..........................x...............x......................x....................x..........
31. The objective of the EIA process is to ensure that environmental and developmental concerns are appropriately balanced on the basis of the most accurate information available.
32. The Constitution (Forty-second Amendment) Act 1976, which came into force with effect from 3 January 1977, inserted Article 48A to the Constitution which mandates that the State shall endeavor to protect and improve the environment and safeguard the forests and wildlife of the country. Article 51A(g) of the Constitution places a corresponding duty on every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Following the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972 in which India participated, Parliament enacted the Environment Protection Act 1986 to protect and improve the environment and prevent hazards to human beings, other living creatures, plants and property.
33. On 27 January 1994, the MoEF, in exercise of the powers conferred by subsection (1) and clause (v) of sub-section (2) of Section 3 of the 1986 Act read with clause (d) of sub-rule 3 of rule 5 of the Environment (Protection) Rules, 1986, issued a notification imposing restrictions and prohibitions on the expansion and modernisation of any activity or new project unless an EC was granted under the procedure stipulated in the notification. Under the notification, any person undertaking a new project or expanding and modernizing an 14 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
existing project was required to submit an application to the Secretary, Ministry of Environment and Forests, New Delhi.
34. The application, which was to be made in accordance with the Schedule provided in the notification was to be submitted with a project report which included with it an EIA Report, an Environment Management Plan and the details of a public hearing which had been carried out in accordance with guidelines issued by the Central Government from time to time. Limited exceptions to the public hearing process and the submission of an EIA were provided.
35 MoEF as the Impact Assessment Agency would then evaluate the application and reports submitted. The IAA was empowered to constitute a committee of experts, if necessary, which would have a right of entry into and inspection of the site during or after the commencement of the preparations relating to the project. The IAA would prepare a set of recommendations based on the documents furnished by an applicant within 90 days from the receipt of the documents and a decision would be conveyed to the applicant within 30 days thereafter. The EC granted was valid for a period of five years and a successful applicant was required to submit half-yearly reports to the IAA. Concealing factual data or submitting false or misleading information would make the application liable for rejection and would lead to the cancellation of any EC36 granted on that basis.
36. The 1994 notification was amended to reflect the growing protection accorded to the environment.
37. On 14 September 2006, MoEF released another notification37 in supersession of the previous notification.
38 The 2006 notification directed thus:
"...on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the 15 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
State Level Environment Impact Assessment Authority, duly constituted by the Central Government under sub-section (3) of section 3 of the said Act, in accordance with the procedure specified hereinafter in this notification."
39. There are significant differences between the 1994 notification and the 2006 notification. They are:
(i) The 2006 notification categorically states that an EC must be granted by the regulatory authority prior to the commencement of any construction work or preparation of land;
(ii) The 2006 notification divides all projects into Category 'A' and Category 'B' projects. The MoEFCC continues to regulate projects of a large scale (Category 'A'), while the SEIAA regulate comparatively smaller projects (Category 'B');
(iii) Under the 1994 notification, an applicant was required to submit an application along with all reports including the EIA report at the time of the application. Under the 2006 notification, prior to the preparation of the EIA report by the applicant, the concerned authority formulates comprehensive ToR on the basis of the information furnished by the applicant addressing all relevant environmental concerns. This forms the basis for the preparation of the EIA report. A pre-feasibility report must also be submitted with the application unless exempted in the notification. Under the 2006 notification, a draft EIA is first prepared and it is only after the public consultation process that a final EIA report must be prepared addressing all the concerns raised during public consultation;
(iv) The 2006 notification stipulates the creation of a regulatory body at the state level - SEIAA comprising members with expertise in the field of environmental laws which is charged with granting ECs for Category 'B' projects; (v) Under the 1994 notification, the final approval was granted by the IAA. Under the 2006 notification, though the final regulatory approval is granted by the MoEFCC or the SEIAA, as the case may be, the approval is to be based on the recommendations of the EAC functioning in the MoEFCC or the State Expert Appraisal Committees which are constituted for that specific purpose; (vi) Under the 2006 notification, the application can be rejected by 16 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
the regulatory authority on the basis of the recommendation of the EAC or the SEAC, as the case may be, at the preliminary stage itself, prior to public consultation; and (vii) Under the 1994 notification, the public hearing process was overseen by the State Pollution Control Boards which would constitute a public hearing panel for the purpose. Under the 2006 notification, the public consultation process is expanded to include the receipt of written comments from concerned persons. The public hearing component was to be overseen by the SPCBs or the Union Territory Pollution Control Committee.
40. The salient objective which underlies the 2006 notification is the protection, preservation and continued sustenance of the environment when the execution of new projects or the expansion or modernization of existing projects is envisaged. It imposes certain restrictions and prohibitions based on the potential environmental impact of projects unless prior EC has been granted by the concerned authority. The EC is required before any construction work, or preparation of land (except for securing the land) is started on the project or activity listed in the Schedule to the notification. The process stipulated under the 2006 notification is illustrated by the following flow-chart:
17O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
41. Based on the spatial extent of the potential impact and the potential impacts on human health and natural and man-made resources, the 2006 notification categorizes all projects into Category 'A' and Category 'B' projects. The MoEFCC in the Central Government and the SEIAA at the state level constitute the regulatory authorities for the purposes of the notification. Category 'A' projects require prior environmental clearance from the MoEFCC, based on the recommendation of the EAC constituted by the Central Government for this purpose. Category 'B' projects will require prior environmental clearance from the SEIAA, based on the recommendations of the SEAC. Where no SEIAA or SEAC has been constituted, Category 'B' projects are treated as Category 'A' projects.
42. Once a prospective site has been identified by the applicant for the proposed project, all applications seeking an EC shall be made in the prescribed Form 1 and Supplementary Form 1A, if applicable. The application must be submitted prior to the commencement of any construction activity, or preparation of the land at the site. A pre- feasibility report must also be submitted with the application except in the cases of construction projects in item 8 of the Schedule, for which a conceptual plan must be submitted. The significance of the information furnished by the applicant in Form 1 shall be explored shortly.
43. The process to obtain environmental clearance as stipulated by the notification for new projects42 comprises a maximum of four stages, all of which may not apply depending on the specific case stipulated under the notification:
1) Screening;
2) Scoping;
3) Public Consultation; and
4) Appraisal.
44. SCREENING - This step is restricted only to Category 'B' projects. This stage entails an examination of whether the proposed project or activity requires further environmental studies for the preparation of an EIA for its appraisal prior to the grant of an EC. Those projects requiring an EIA are further categorized as Category 'B1' projects and remaining projects are categorized as Category 'B2' projects. Category 'B2' projects do not require an EIA. The categorization is in accordance with the guidelines issued in this regard by the MoEFCC from time to time.
18O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
45. SCOPING - At this stage, the EAC or the SEAC, as the case may be, formulates detailed and comprehensive Terms of Reference which address all relevant environmental concerns for the preparation of the EIA. Amongst other things, the information furnished by the applicant in Form 1/Form 1A along with the proposed ToR by the applicant form the basis for the preparation of the ToR. The ToR must be conveyed to the applicant within 60 days of the receipt of Form 1, failing which, the ToR proposed by the applicant shall be deemed as approved. Significantly, applications for EC may be rejected by the regulatory authority at this stage itself on the recommendation of the EAC or the SEAC, as the case may be, and the decision along with reasons is to be communicated to the applicant within 60 days of receipt of application.
46. PUBLIC CONSULTATION - Prior to this stage, a Summary EIA is prepared in the format given in Appendix IIIA on the basis of the ToR furnished to the applicant. This stage involves the process "by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view of taking into account all the material concerns in the project or activity design as appropriate." The detailed procedure is stipulated in Appendix IV. Subject to the exceptions provided in the 2006 notification, all Category 'A' and Category 'B1' projects shall undertake the public consultation process. This stage comprises two components:
(i) A public hearing at the site or in its close proximity - district-wise to be carried out in the manner prescribed in Appendix IV; and
(ii) Procurement of written responses from concerned persons having a plausible stake in the environmental aspects surrounding the project.
47. The State Pollution Control Board or the Union Territory Pollution Control Committee is charged with conducting the public hearing in the manner stipulated in Appendix IV and forwarding the proceedings to the regulatory authority within 45 days of a request from the applicant. The regulatory authority is empowered to engage another public agency or authority to carry out the process within a further period of forty-five days in case the SPCB or the UTPCC does not adhere to the prescribed time period stipulated in the notification. The public hearing should be arranged in a "systematic, time bound and transparent manner" to ensure the "widest possible public 19 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
participation at the project site(s) or in its close proximity Districtwise". The public hearing proceeding is filmed and a copy of the video is submitted to the concerned regulatory authority.
48. Within seven days of receiving a written request to initiate the public consultation process, the SPCB or the UTPCC shall place the Summary EIA and the application on their website and invite responses. The concerned authority may also make use of other appropriate media in addition to publication on their website to ensure wide publicity of the project. On a written request from any concerned person, the authority will make available a hard copy of the Draft EIA for inspection at a notified place during office hours till the date of the public hearing. A duty is placed on the authority to forward all responses and comments received at this stage to the applicant through the quickest available means.
49. After the public consultation process, the applicant is duty bound to address all the material environmental concerns expressed during the process and make appropriate changes to the Draft EIA and EMP. The applicant shall then forward the final EIA report to the regulatory authority to initiate the next stage. Alternatively, the applicant may submit a supplementary report to the Summary EIA and EMP.
50. APPRAISAL - This stage involves detailed scrutiny by the EAC or the SEAC of all the documents submitted by the applicant for the grant of EC. The appraisal is carried out in a transparent manner in a process to which the applicant shall be invited for furnishing clarification in person or through an authorized representative. Appendix V stipulates that the following documents are also submitted to the regulatory authority:
(i) Final EIA Report
(ii) A copy of the video tape or CD of the public hearing proceedings
(iii) A copy of the final layout plan
(iv) A copy of the project feasibility report.
51. The regulatory authority must examine the documents "strictly with reference to the ToR" and communicate any inadequacy to the EAC or the SEAC, as the case may be, within 30 days of receipt of the documents. Within sixty days of the receipt of all the documents, the EAC or the SEAC, as the case may be, shall complete the appraisal process as prescribed in Appendix V. Within the next fifteen days, the EAC or the SEAC shall make categorical recommendations to the concerned regulatory authority to either grant the EC on the 20 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
stipulated terms and conditions or reject the application, together with reasons. The appraisal of projects which are not required to undergo the public consultation process or the submission of an EIA is to be carried out on the basis of the prescribed application Form 1 or Form 1A, as applicable.
52. The MoEFCC or the SEIAA shall thereafter consider the recommendations of the EAC or the SEAC and convey its decision to the applicant within 45 days of receipt of the recommendations. The regulatory authorities shall normally accept the recommendations of the EAC or the SEAC, as the case may be. Where there is a disagreement, the regulatory authority shall ask for a reconsideration of the recommendation within 45 days of the receipt of the recommendations. This decision shall be conveyed to the applicant. The EAC or the SEAC shall then reconsider its recommendation within a further period of 60 days and make its recommendations to the regulatory authority. The regulatory authorities shall then take a decision after considering the views communicated to it and convey the decision to the applicant within the next 30 days.
53. If no decision is communicated to the applicant within the time prescribed, the applicant may proceed according to the recommendation of the EAC or the SEAC recommending either the grant or rejection of the EC. The decision of the regulatory authority and the final recommendations of the EAC or the SEAC shall be public documents on the expiry of the prescribed timelines. Deliberate concealment and/or the submission of false or misleading information material to the steps involved in the grant of an EC make the application liable for rejection and cancellation of any EC granted on that basis.
54. The 2006 notification embodies the notion that the development agenda of the nation must be carried out in compliance with norms stipulated for the protection of the environment and its complexities. It serves as a balance between development and protection of the environment: there is no trade-off between the two. The protection of the environment is an essential facet of development. It cannot be reduced to a technical formula. The notification demonstrates an increasing awareness of the complexities of the environment and the heightened scrutiny required to ensure its continued sustenance, for today and for generations to come. It embodies a commitment to sustainable development. In laying down a detailed procedure for the 21 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
grant of an EC, the 2006 notification attempts to bridge the perceived gap between the environment and development.
55. It is for this reason that the EAC and SEAC comprise experts in the field of environmental law. The Chairperson of the EAC shall be a person who is an "outstanding and experienced environmental policy expert or expert in management or public administration with wide experience in the relevant development sector". Appendix VI to the 2006 notification stipulates that the EAC and the SEAC comprise 15 members who are either 'experts' or 'professionals'. Experts must have atleast 15 years of relevant experience in the field or an advanced degree (PhD) with 10 years of relevant experience. Where experts are not available, professionals may be appointed to the EAC.
56. The EAC and the SEAC are charged with evaluating the information submitted by the applicant in Form 1/Form 1A and preparing comprehensive ToR which guide the preparation of the EIA reports. Given that these bodies comprise experts in the field of environmental law, the recommendation of the EAC or the SEAC to grant EC to an applicant or reject the application is normally accepted by the regulatory authority.
57. The regulatory authority at the state level (SEIAA) which is charged with the approval or rejection of an application for EC comprises three members who possess the qualifications in the field as prescribed in Appendix VI. Significantly, sub clause (7) of paragraph 3 of the 2006 notification stipulates that all decisions of the SEIAA shall be unanimous and taken in a meeting. Given the environmental consequences of a proposed project, no difference of opinion is provided for in the grant of an EC at the state level. It is further mandated that the project management submit half-yearly compliance reports to the regulatory authority in respect of the EC and conditions.
58. Under the 2006 notification, the process of obtaining an EC commences from the production of the information stipulated in Form 1/Form 1A. Crucial information regarding the particulars of the proposed project is sought to enable the EAC or the SEAC to prepare comprehensive ToR which the applicant is required to address during the course of the preparation of the EIA. Some of the information sought is produced thus:
22O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
(i) Construction, operation or decommissioning of the project involving actions, which will cause physical changes in the locality (topography, land use, changes in water bodies, etc.);
(ii) Use of natural resources for construction or operation of the Project (such as land, water, materials or energy, especially any resources which are nonrenewable or in short supply);
(iii) Use, storage, transport, handling or production of substances or materials, which could be harmful to human health or the environment or raise concerns about the actual or perceived risks to human health;
(iv) Production of solid wastes during construction, operation or decommissioning;
(v) Release of pollutants or any hazardous, toxic or noxious substances to air;
(vi) Generation of noise and vibration, and emissions of light and heat;
(vii) Risks of contamination of land or water from releases of pollutants into the ground or into sewers, surface waters, groundwater, coastal waters or the sea;
(viii) Risk of accidents during construction or operation of the project, which could affect human health or the environment; and
(ix) Environment sensitivity which includes, amongst other things, the furnishing of the following details:
a. Areas protected under international and national legislation;
b. Ecologically sensitive areas; and c. Areas used by protected, important or sensitive species of flora or fauna.
59. Under the 2006 notification, the EC process is based on the information provided by the applicant in Form 1. That the information provided in Form 1 is crucial can be borne from the following circumstances:
(i) The EAC or the SEAC, as the case may be, formulates comprehensive ToRs on the basis of the information furnished in Form 1 which addresses all possible environmental concerns. It is on the basis of the ToR, that further studies and the EIA are carried out on the impact of the proposed project on the environment;23
O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
(ii) At the appraisal stage, the regulatory authority examines the documents submitted by the applicant "strictly with reference to the ToR" and communicates any inadequacy to the EAC or the SEAC;
(iii) Category B2 projects, which do not require scoping, are evaluated by the SEAC on the basis of the information furnished by the applicant in Form 1 alone;
(iv) The appraisal of all projects or activities which are not required to undergo public consultation, or submit an EIA report, shall be carried out on the basis of the prescribed application Form 1 and Form 1A as applicable; and
(v) An application for extension of the validity of the EC for certain projects is to be made by submitting a revised Form 1 within the validity period.
60. The information provided in Form 1 serves as a base upon which the process stipulated under the 2006 notification rests. An applicant is required to provide all material information stipulated in the form to enable the authorities to formulate comprehensive ToR and enable concerned persons to provide comments and representations at the public consultation stage. The depth of information sought in Form 1 is to enable the authorities to evaluate all possible impacts of the proposed project and provide the applicant an opportunity to address these concerns in the subsequent study. Missing or misleading information in Form 1 significantly impedes the functioning of the authorities and the process stipulated under the notification. For this reason, any application made or EC granted on the basis of a defective Form 1 is liable to be rejected immediately. Clause (vi) of paragraph 8 of the notification provides thus:
"Deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis. Rejection of an application or cancellation of a prior environmental clearance already granted, on such ground, shall be decided by the regulatory authority, after giving a personal hearing to the applicant, and following the principles of natural justice."
.............x.............x............x.............x...............
G. Public Consultation 24 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
100. The importance of public consultation is underscored by the 2006 notification. Public consultation, as it states, is "the process by which the concerns of local affected persons and others who have a plausible stake in the environmental impacts of the project or activity are ascertained with a view to take into account all the material concerns in the project or activity design as appropriate". This postulates two elements. They have both, an intrinsic and an instrumental character. The intrinsic character of public consultation is that there is a value in seeking the views of those in the local area as well as beyond, who have a plausible stake in the project or activity. Public consultation is a process which is designed to hear the voices of those communities which would be affected by the activity. They may be affected in terms of the air which they breathe, the water which they drink or use to irrigate their lands, the disruption of local habitats, and the denudation of environmental eco-systems which define their existence and sustain their livelihoods.
106. In Utkarsh Mandal v Union of India, the Delhi High Court has succinctly summarized the duty of the EAC to apply its mind to the objections raised in the course of public hearings:
"It is that body that has to apply its collective mind to the objections and not merely the MoEF which has to consider such objections at the second stage. We therefore hold that in the context of the EIA Notification dated 14th September 2006 and the mandatory requirement of holding public hearings to invite objections it is the duty of the EAC, to whom the task of evaluating such objections has been delegated, to indicate in its decision the fact that such objections, and the response thereto of the project proponent, were considered and the reasons why any or all of such objections were accepted or negatived. The failure to give such reasons would render the decision vulnerable to attack on the ground of being vitiated due to non-application of mind to relevant materials and therefore arbitrary."
H Appraisal by the EAC
108. Appraisal by the EAC is structured and defined by the 2006 notification. The process of appraisal is defined to mean "a detailed scrutiny" by the EAC of the application and other documents like the EIA report and the outcome of the public consultation, including the public hearing proceedings, submitted by the applicant to the 25 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
regulatory authority for the grant of an EC. The EAC is under a mandate to conduct the process of appraisal in "a transparent manner". On the conclusion of these proceedings, the EAC has to make "categorical recommendations" to the regulatory authority either for: (i) the grant of a prior environmental clearance on stipulated terms and conditions; or (ii) the rejection of the application. The recommendations made by the EAC to the regulatory authority must be based on "reasons".
..............x.................x....................x..............x..........................
128. The environmental rule of law provides an essential platform underpinning the four pillars of sustainable development-- economic, social, environmental, and peace. It imbues environmental objectives with the essentials of rule of law and underpins the reform of environmental law and governance. The environmental rule of law becomes a priority particularly when we acknowledge that the benefits of environmental rule of law extend far beyond the environmental sector. While the most direct effects are on protection of the environment, it also strengthens rule of law more broadly, supports sustainable economic and social development, protects public health, contributes to peace and security by avoiding and defusing conflict, and protects human and constitutional rights. Similarly, the rule of law in environmental matters is indispensable "for equity in terms of the advancement of the Sustainable Development Goals, the provision of fair access by assuring a rights- based approach, and the promotion and protection of environmental and other socio-economic rights.
129. Amartya Sen argues for a broadening of the notion of sustainable development which is the most dominant theme of environmental literature, from a need-based standard to a standard based on freedoms. Thus recharacterized, it encompasses the preservation, and when possible even the expansion of the substantive freedoms and capabilities of people today without compromising the capability of future generations to have similar - or more - freedoms. The intertwined concepts of environmental rule of law thus further intragenerational as well as intergenerational equity.
130. Decision which was adopted by the United Nations Environment Programme's Governing Body at its first universal session in 2013 on 'Advancing Justice, Governance and Law for Environmental Sustainability' was the first internationally negotiated document to establish the term 'environmental rule of law.' It declared that "the violation of environmental law has the potential to undermine 26 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
sustainable development and the implementation of agreed environmental goals and objectives at all levels and that the rule of law and good governance play an essential role in reducing such violations". It thus urged governments and organisations to reinforce cooperation to combat noncompliance with environmental laws towards achieving sustainable development. It also called upon the Executive Director to assist with the "development and implementation of environmental rule of law with attention at all levels to mutually supporting governance features, including information disclosure, public participation, implementable and enforceable laws, and implementation and accountability mechanisms including coordination of roles as well as environmental auditing and criminal, civil and administrative enforcement with timely, impartial and independent dispute resolution." Similarly, the first United Nations Environment Assembly in 2014 adopted resolution 1/13, which calls upon countries "to work for the strengthening of environmental rule of law at the international, regional and national levels."
131. In 2016, the First World Environmental Law Congress, cosponsored by the International Union for Conservation of Nature and UN Environment, adopted the IUCN World Declaration on the Environmental Rule of Law which outlines 13 principles for developing and implementing solutions for ecologically sustainable development:
(i) Obligation to Protect Nature
(ii) Right to Nature and Rights of Nature
(iii) Right to Environment.
(iv) Ecological Sustainability and Resilience
(v) In Dubio Pro Natura (vi) Ecological Functions of Property
(vii) Intragenerational Equity
(viii) Intergenerational Equity
(ix) Gender Equality
(x) Participation of Minority and Vulnerable Groups (xi) Indigenous and Tribal Peoples
(xii) Non-regression
(xiii) Progression
132. Dhvani Mehta's doctoral thesis explores this idea of environmental rule of law in the Indian context by analysing the functioning of the three institutions of the government with regard to environmental law. It develops a framework to assess whether the 27 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
environmental rule of law in India is being strengthened or weakened, through an analysis of the legal instruments of each of the institutions of government--statutes, executive orders, and judicial decisions. The indicators on the basis of which this is done are: a) the capacity of statutes to guide behaviour (one of the organising principles of the rule of law) by clearly articulating goals or balancing competing interests; b) the ability of the executive to take flexible but reasoned decisions grounded in primary legislation; and
c) the ability of the judiciary to apply statutory interpretation and consistent standards of judicial review to give effect to environmental rights and principles.
133. In 2015, the International community adopted the 2030 Agenda for Sustainable Development and its 17 SDGs. These 17 goals are:
(i) Eradication of poverty;
(ii) Eradication of hunger;
(iii) Good health and well-being;
(iv) Quality education; (v) Gender equality;
(vi) Clean water and sanitation;
(vii) Affordable and clean energy;
(viii) Decent work and economic growth;
(ix) Industry, innovation and infrastructure;
(x) Reduced inequalities;
(xi) Sustainable cities and communities;
(xii) Sustainable consumption and production;
(xiii) Climate action;
(xiv) Protecting life below water;
(xv) Life on land;
(xvi) Peace, justice and strong institutions; and (xvii) Partnerships to achieve the goals.
134. Each of these goals has a vital connection to the others. Together, they provide an agenda for human development:
development in a manner which accords adequate protection to the environment. The UNEP recognises that the natural environment - forests, soils and wet lands - contributes to the management and regulation of water availability and water quality, strengthening the resilience of water sheds and complements investments in physical infrastructure and institutional and regulatory arrangements for water access and disaster preparedness.28
O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
135. SDG emphasises the urgent action required to combat climate change and its impacts. This is based on the recognition that extreme weather events such as heat waves, droughts, floods and tropical cyclones have aggravated the need for water management, pose a threat to food security, increase health risks, damage critical infrastructure and interrupt the provision of basic civil services.
136. The statistics on climate change indicate that:
(i) Between 1880 and 2012, average global temperatures have increased by 0.85 degrees Celsius;
(ii) Between 1901 and 2010, as ocean expanded, the global average sea level has risen by 19 centimeters;
(iii) Since 1990, global emissions of CO2 increased by almost 50 per cent; and
(iv) Between 2000 and 2010, emissions grew at a more rapid rate than each of the three decades preceding it.
137. In this backdrop, SDG 16 emphasises the need to protect, restore and promote sustainable use and management of terrestrial eco systems and forests, combat desertification of river lands, prevent land degradation and halt the loss of biodiversity. Terrestrial eco systems provide a range of eco system services including the capture of carbon, maintenance of soil quality, provision of habitat for biodiversity, maintenance of water quality and regulation of water flow together with control over erosion. Maintenance of eco systems is hence crucial to efforts to combat climate change, mitigate and reduce the risks of natural disasters including floods and landslides. In this backdrop, promoting environmental justice and ensuring strong institutions is quintessential to promoting peaceful and inclusive societies for sustainable development. SDG 16 therefore construes the promotion of the rule of law as intrinsic towards implementing multilateral environmental agreements and progressing towards internationally agreed environmental goals.
138. On 2 October 2016, India ratified the Paris Agreement on climate change which reaffirmed the goal of 'limiting global temperature increase to well below 2 degrees Celsius, while pursuing efforts to limit the increase to 1.5 degrees above pre-industrial levels'. Article 5 of the Agreement encourages parties to conserve and enhance sinks and reservoirs of greenhouse gases, which includes forests. Under its Nationally Determined Contributions under the Paris Agreement, India made the following three commitments:
29O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
(i) Greenhouse gas emission intensity of its Gross Domestic Product will be reduced by 33-35% below 2005 levels by 2030;
(ii) 40% of India's power capacity would be based on non-fossil fuel sources; and
(iii) An additional 'carbon sink' of 2.5 to 3 billion tonnes of CO2 equivalent through additional forest and tree cover will be created by 2030.
139. In March 2019, UNEP released the Global Environment Outlook themed 'Healthy Planet, Healthy People'. Noting clear 'links between human health and the state of the environment', the report concludes that clean-up and efficiency improvements are not adequate to pursue the 2030 Agenda and the SDGs and achieve the internationally agreed environmental goals on pollution control. Instead, 'transformative change' which reconfigures basic social and production systems and structures is needed. This includes well- designed policies on institutional frameworks, social practices, cultural norms and values along with their implementation, compliance and enforcement. In this view, a systemic and integrated policy action would ensure that a "healthy environment is a prerequisite and foundation for economic prosperity, human health and well-being.
140. 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.
141. The 2006 notification must hence be construed as a significant link in India's quest to pursue the SDGs. Many of those goals, besides being accepted by the international community of which India is a part, constitute a basic expression of our own constitutional value system. Our interface with the norms which the international community has adopted in the sphere of environmental governance is 30 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
hence as much a reflection of our own responsibility in a context which travels beyond our borders as much as it is a reflection of the aspirations of our own Constitution. The fundamental principle which emerges from our interpretation of the 2006 notification is that in the area of environmental governance, the means are as significant as the ends. The processes of decision are as crucial as the ultimate decision. The basic postulate of the 2006 notification is that the path which is prescribed for disclosures, studies, gathering data, consultation and appraisal is designed in a manner that would secure decision making which is transparent, responsive and inclusive."
20. Learned Counsel for the Appellant relied on (2025): KER: 38052 (Thomas Mathai Vs. State Environment Impact Assessment Authority) decided on 29th May, 2025, in W.P. (C) No.31130 of 2024 where it was held that there is no reason to take another view different from the well considered recommendation of the Expert Body State Expert Appraisal Committee (SEAC) and in light of the judgment of the Hon'ble Supreme Court of India in Hanuman Laxman Aroskar Vs. Union of India: (2019) 15 SCC 401, underscored the primacy of the recommendation made by the SEAC and its binding nature on SEIAA in normal circumstances." It was also held that in case SEIAA is to overlook the recommendations made by the Expert Body (SEAC), they have to state reason and the matter will have to be sent back to SEAC for re-consideration which obviously was not reflected by the impugned order.
21. Our attention has also been drawn towards the para nos.41.5, 41.6, 54, 58, 118, 123.8, and 124 of Hanuman Laxman Aroskar case noted above, which categorically held that the recommendation of the Expert Body (SEAC) or for that matter EAC to grant EC to an applicant or to reject the same, is to be accepted by the regulatory authority, normally SEAC recommendation shall ordinarily be accepted in case the regulatory body disagree, it will have to send back to SEAC for re-
31O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
consideration. Such re-considered recommendation received form SEAC has to be considered by the regulatory body and a decision has to be taken which have been made final.
22. We have also examined the EIA Notification issued on 14th September, 2006, issued by the MoEF&CC which provides the requirement of prior EC. Section 2 provides as follows:-
"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, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:
(i) All new projects or activities listed in the Schedule to this notification;
(ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;
(iii) Any change in product mix in an existing manufacturing unit included in Schedule beyond the specified range.
3. State Level Environment Impact Assessment Authority:- (1) A State Level Environment Impact Assessment Authority hereinafter referred to as the SEIAA shall be constituted by the Central Government under sub-section (3) of section 3 of the Environment (Protection) Act, 1986 comprising of three Members including a Chairman and a Member Secretary to be nominated by the State Government or the Union territory Administration concerned. (2) The Member-Secretary shall be a serving officer of the concerned State Government or Union territory administration familiar with environmental laws.
32O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
(3) The other two Members shall be either a professional or expert fulfilling the eligibility criteria given in Appendix VI to this notification. (4) One of the specified Members in sub-paragraph (3) above who is an expert in the Environmental Impact Assessment process shall be the Chairman of the SEIAA.
(5) The State Government or Union territory Administration shall forward the names of the Members and the Chairman referred in sub- paragraph 3 to 4 above to the Central Government and the Central Government shall constitute the SEIAA as an authority for the purposes of this notification within thirty days of the date of receipt of the names.
(6) The non-official Member and the Chairman shall have a fixed term of three years (from the date of the publication of the notification by the Central Government constituting the authority). (7) All decisions of the SEIAA shall be unanimous and taken in a meeting.
4. Categorization of projects and activities:-
(i) All projects and activities are broadly categorized in to two categories Category A and Category B. based on the spatial extent of potential impacts and potential impacts on human health and natural and man made resources.
(ii) All projects or activities included as Category 'A' in the Schedule, including expansion and modernization of existing projects or activities and change in product mix, shall require prior environmental clearance from the Central Government in the Ministry of Environment and Forests (MoEF) on the recommendations of an Expert Appraisal Committee (EAC) to be constituted by the Central Government for the purposes of this notification;
(ii) All projects or activities included as Category 'B' in the Schedule, including expansion and modernization of existing projects or activities as specified in sub paragraph (ii) of paragraph 2, or change in product mix as specified in sub paragraph (iii) of paragraph 2, but excluding those which fulfill the General Conditions (GC) stipulated in the Schedule, will require prior environmental clearance from the State/Union territory Environment Impact Assessment Authority (SEIAA). The SEIAA shall base its decision on the recommendations of a State or Union territory level Expert Appraisal Committee (SEAC) as to be constituted for in this notification. In the absence of a duly constituted SEIAA or SEAC, a Category 'B' project shall be treated as a Category 'A' project, .............x...............x........................x........................x................33
O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
8.Grant or Rejection of Prior Environmental Clearance (EC):
(i) The regulatory authority shall consider the recommendations of the EAC or SEAC concerned and convey its decision to the applicant within forty five days of the receipt of the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned or in other words within one hundred and five days of the receipt of the final Environment Impact Assessment Report, and where Environment Impact Assessment is not required, within one hundred and five days of the receipt of the complete application with requisite documents, except as provided below.
(ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned. In cases where it disagrees with the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned, the regulatory authority shall request reconsideration by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned within forty five days of the receipt of the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned while stating the reasons for the disagreement. An intimation of this decision shall be simultaneously conveyed to the applicant. The Expert Appraisal Committee or State Level Expert Appraisal Committee concerned, in turn, shall consider the observations of the regulatory authority and furnish its views on the same within a-
further period of sixty days. The decision of the regulatory authority after considering the views of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall be final and conveyed to the applicant by the regulatory authority concerned within the next thirty days.
(iii) In the event that the decision of the regulatory authority is not communicated to the applicant within the period specified in sub- paragraphs (1) or (ii) above, as applicable, the applicant may proceed as if the environment clearance sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned.
(iv) On expiry of the period specified for decision by the regulatory authority under paragraph (i) and (ii) above, as applicable, the decision of the regulatory authority, and the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall be public documents.
34O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
(v) Clearances from other regulatory bodies or authorities shall not be required prior to receipt of applications for prior environmental clearance of projects or activities, or screening, or scoping, or appraisal, or decision by the regulatory authority concerned, unless any of these is sequentially dependent on such clearance either due to a requirement of law, or for necessary technical reasons.
(vi) Deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis. Rejection of an application or cancellation of a prior environmental clearance already granted, on such ground, shall be decided by the regulatory authority, after giving a personal hearing to the applicant, and following the principles of natural justice."
23. The Notification provides that the SEIAA has to act in accordance with the procedure specified hereinafter in this notification as follows:-
(i) The SEIAA shall base its decision on the recommendation of State or Union Territory Level Expert Appraisal Committee (SEAC) as to be constituted in this notification,
(ii) The Expert Appraisal Committee or the SEAC at the State shall screen, scope and apprise projects or activities of Category A or Category B respectively and shall met at least once in every month.
(iii) The authorized members of the SEAC/EAC may inspect any site connected with the project in respect of which the prior Environmental Clearance is sought (5d),
(iv) The EAC and the SEAC shall function on the principle of collective responsibility (5e),
(v) Screening, scoping, ToR, recommendation is to be done by the EAC or the SEAC (7 (i), (ii) & (iii)),
(vi) Appraisal means detailed scrutiny by the Expert Appraisal Committee or the SEAC and appraisal shall be made by the SEAC in a 35 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
transparent manner in a proceeding to which the applicant shall be invited for furnishing necessary clarification.
(vii) The SEAC shall make categorical recommendation to the regulatory authority concerned either for a grant of prior Environmental Clearance on stipulated terms and conditions or rejection of the application for prior Environmental Clearance together with the reasons for the same
(iv) Stage 4 - Appraisal,
(viii) The appraisal by the SEAC shall be completed within 60 (sixty) days of the receipt of the final Environment Impact Assessment Report and such report shall be placed before the competent authority for final decision within 15 (fifteen) days.
24. Again if we examine the provisions contained in Section 8 for grant or rejection of Environmental Clearance, it makes clear as follows:-
(i) The regulatory authority shall normally accept the recommendation of the Committee or the SEAC,
(ii) In case where it disagrees with the recommendation of the Expert Appraisal Committee or the SEAC, the regulatory authority shall request re-consideration by the SEAC,
(iii) It shall be done within 45 days of the receipt of the recommendation of the Expert Appraisal Committee or the SEAC,
(iv) Stating the reasons for disagreement,
(v) An intimation of this decision shall be simultaneously conveyed to the applicant,
(vi) The SEAC in turn shall consider the observations of the regulatory authority and furnish its views on the same,
(vii) Within a further period of 60 days, 36 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
25. After perusal of the EIA Notification, 2006, it is clear that there is no mention of any word with regard to the District Assessment Authority.
The DEIAA is foreign to EIA Notification and by means of any office memorandum, the rule or the act cannot be undone.
26. Validity of the Office Memorandum in presence of Statutory Law:-
(i) The Hon'ble Supreme Court of India in (2022) 11 SCC 392:
Employees' State Insurance Corporation (ESIC) v. Union of India, Civil Appeal No.152 of 2022, has held that the rule is "primacy of statutory rules or executive instructions" and in event of conflict between the executive instructions (OM in the instant case), and statutory regulations latter will prevail.
(ii) In C. Sankarnarayanan etc. Vs. State of Kerala: (1971) 2 SCC 361, it was held that there can be no estoppel against legislative action.
(iii) In case of Union of India Vs. Ashok Kumar Agarwal: (2013) 16 SCC 147, it was held that Government issued memorandums or executive instructions can be used only to supplement the statutory rules not to supplant them.
(iv) In State of U.P. Vs. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti (2009) 1 SCC (L&S) 237, it was held that incorrect concession does not amount to estoppel against statutory regulations.
(v) In case Malik Mazhar Sultan Vs. U.P. Public Service Commission:
(2006) 9 SCC 507, Ashish Kumar Vs. State of M.P.: (2018) 3 SCC 55, Raminder Singh Vs. State of Punjab: (2016) 16 SCC 95, it was held that if an advertisement is inconsistent with recruitment rules, the rules would prevail.37
O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
(vi) In the case of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi: (1975) 1 SCC 421, it was held that:
"21. The characteristic of law is the manner and procedure adopted in many forms of subordinate legislation. The authority making rules and regulation must specify the source of the rule and regulation- making authority. To illustrate, rules are always framed in exercise of the specific power conferred by the statute to make rules. Similarly, regulations are framed in exercise of specific power conferred by the statute to make regulations. The essence of law is that it is made by the law-makers in exercise of specific authority. The vires of law is capable of being challenged if the power is absent or has been exceeded by the authority making rules or regulations."
(vii) In the case of Pepsu RTC Vs. Mangal Singh: (2011) 11 SSC 702, it was held that:
"29. It is well-settled law that the regulations made under the statute laying down the terms and conditions of service of the employees, including the grant of retirement benefits, have the force of law. The regulations validly made under the statutory powers are binding and effective as the enactment of the competent legislature. The statutory bodies as well as general public are bound to comply with the terms and conditions laid down in the regulations as a legal compulsion. Any action or order in breach of the terms and conditions of the regulations shall amount to violation of the regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid."
(viii) Similarly, in Union of India vs. Ashok Kumar Aggarwal, quoted above, it was held as follow:
"59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide Union of India v. Majji Jangamayya, P.D. Aggarwal v. State of U.P., Paluru Ramkrishnaiah v. Union of India, C. Rangaswamaiah v.38
O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
Karnataka Lokayukta and Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation.)"
(emphasis supplied)
(ix) In P.D. Aggarwal vs. State of UP: (1987) 3 SCC 622, it was held that the memorandum is nothing but an administrative order or instruction and as such cannot amend or supersede the statutory rules by adding something therein as has been observed by this Court Santram Sharma vs. State of Rajasthan & Ors.
(x) In case of Union of India Vs. Majji Jangamayyaa: (1977) 1 SCC 606, it was held that because there is a distinction between statutory orders and administrative instructions of the Government. In the absence of statutory rules, executive orders or administrative instructions may be made. (2022) 11 SCC 392:
Employees' State Insurance Corporation vs. Union of India and Ors.
(xi) In (2024) INSC 748: V. Vincent Velankanni Vs. Union of India & Ors., Civil Appeal No. 8617 OF 2013, the matter of office memorandum and its validity in light of the statutory rules was discussed and it was held as follows:-
"42. It is trite law that an Office Memorandum/Government Order cannot have a retrospective effect unless and until there is an express provision to make its effect retrospective or that the operation thereof is retrospective by necessary implication. In this regard, we are benefitted by the observations of this Court in (2007) 10 SCC 627: Sonia v. Oriental Insurance Co. Ltd. and Others , wherein it was held that:
"11. ....In any view of the matter, law is well settled that an Office Memorandum cannot have a retrospective effect unless and until intention of the authorities to make it as 39 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
such is revealed expressly or by necessary implication in the Office Memorandum."
43. If a Government Order is treated to be in the nature of a clarification of an earlier Government Order, it may be made applicable retrospectively. Conversely, if a subsequent Government Order is held to be a modification/amendment of the earlier Government Order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights which is impermissible in law and the same may also entail recoveries to be made. The principles in this regard were culled out by this Court in a recent judgment of Sree Sankaracharya University of Sanskrit and Others v. Dr. Manu and Another: 2023 SCC OnLine SC 640, in the following terms: -
"52. From the aforesaid authorities, the following principles could be culled out:
i) If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted.
ii) In order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre-amended law ought to have been vague or ambiguous.
It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively.
iii) An explanation/clarification may not expand or alter the scope of the original provision.
iv) Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively."
27. Learned Counsel for the Applicant has highlighted the directions and discussion of the Tribunal in O.A No.36/2023(CZ), (Brijendra Kumar 40 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
Mala & Anr. Vs. State of MP & Ors.), and he has highlighted the para as below:-
"7. Learned Counsel for the State Pollution Control Board has submitted that the matter of authority to issue the EC was considered in O.A No. 90/2022 (CZ) titled as Sharvesh Sharma vs. State Of Madhya Pradesh & Ors vide order dated 23.12.2022. The relevant paras are quoted below:
3. It is contended that the authority of the DEIAA was under consideration before Principal Bench of this Tribunal in Execution Application No. 55/2018 of Original Application No. 520/2016.
Order dated 11.12.2018 runs as follows:
1. Grievance in this application is that there is non-compliance of the judgment of this Tribunal dated 13.09.2018 in Original Application No. 186/2016, Satendra Pandey Vs. Ministry of Environment, Forest & Climate Change & Anr. The Hon'ble Supreme Court, vide judgment in Deepak Kumar Vs. State of Haryana & Ors.: (2012) 4 SCC 629, required proper Environmental Clearance before grant of lease of minor minerals, including sand mining. Vide Notification dated 15.01.2016 issued by MoEF&CC, environmental clearance was to be given by the District Environment Impact Assessment Authority (DEIAA) which defeat the direction of the Hon'ble Supreme Court.
2. This Tribunal noted that the Notification dated 15.01.2016 issued by the Ministry of Environment, Forest and Climate Change (MoEF&CC) was not consistent with the mandate in Deepak Kumar (supra).
3. The District Expert Appraisal Committee (DEAC) comprised officers having no expertise or scientific knowledge to assess environment implications. Permitting DEAC to make assessment was also not consistent with the Sustainable Sand Mining Management Guidelines, 2016. Accordingly, MoEF&CC was directed to take steps to revise the procedure laid down in the Notification dated 15.01.2016.
4. According to the applicant, the MoEF&CC failed to issue appropriate Notification. Moreover, the State of Uttar Pradesh vide the letter dated 25.10.2018 and State of Kerala vide the letter dated 29.10.2018 directed Environmental Clearance to be 41 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
given in accordance with the Notification dated 15.01.2016 in violation of the judgment of this tribunal dated 13.09.2018 which in turn is to implement the direction of the Hon'ble Supreme Court in Deepak Kumar (supra).
5. Accordingly, we direct the MoEF&CC to comply with the order dated 13.09.2018 forthwith and furnish a report of compliance on or before 31.12.2018 failing which coercive measures may have to be taken. We also make it clear that till a fresh Notification is issued by the MoEF&CC, Notification dated 15.01.2016 will not be acted upon.
6. Since our attention has been drawn to letter dated 29.10.2018 issued by the State Environment Impact Assessment Authority, Kerala addressed to the District Environment Impact Assessment Authorities of various districts in Kerala that Notification dated 15.01.2016 having not being stayed, the same be followed. This interpretation is clearly contrary to the order of this Tribunal disapproving the Notification dated 15.01.2016 and requiring the same to be revised. The direction that 15.01.2016 should still be acted upon is clearly illegal and in violation of judgment of this Tribunal. The same will stand suspended till a fresh Notification is issued by the MoEF&CC as directed hereinabove.
7. This direction will apply to all the State Environment Impact Assessment Authorities/State Governments.
8. List for further consideration along with the report of the MoEF&CC on 14.01.2019.
4. The direction issued as above clearly provides that environmental clearance granted by the DEIAA stands suspended till the fresh notification issued by the MoEF & CC.
5. In compliance of the above, MPSEIAA vide order dated 27.12.20218 issued office memorandum as follows:
Hon'ble NGT(PB), New Delhi vide order dated 13-09-2018 in OA No. 186/2016 Satyendra Pandey V/s MoEF&CC, Gol and others 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 par with Category B-1 by SEAC/SEIAA as well as for cluster situation wherever it is not provided:42
O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
II. Form 1M by made more comprehensive for areas of 0 to 5 ha by dispending 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 environment 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 recommendation 6, 7 and 8 thereof;
Revise the procedure to also incomplete procedure with respect to annual rate of replenishment and timeframe for replenishment after mining closure in an area; V. 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;
As per above order of Hon'ble NGT(PB), Ministry of Environment, Forest & Climate Change (MoEF&CC), Govt. of India vide Office Memorandum F.No.L-11011/175/2018-IA-II (M) dated 12-12-2018, has directed to compliance the above direction of Hon'ble NGT. Besides this, Hon'ble NGT(PB) in its order dated 11.12.18 in OA 520/2016 has suspended the activities of issuing EC by DEIAA/DEAC for minor minerals as per MOEF&CC Notification dated 15.1.2016 till a fresh notification is issued by ministry. Therefore, in compliance of MoEF&CC, Gol, 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 MP-SEIAA for Environmental clearance and hence all concerned Project Proponent will apply in MP-SEIAA in Form-1 with other required supporting documents on online MoEF&CC website www.environmentclearance.nic.in for process of application for grant of prior environmental clearance with immediate effect till further order.
6. The matter was again considered by the Principal Bench of this Tribunal in Original Application No. 319/2022 in I.A No. 152/2022 in the matter of Dileep Singh vs. State of Uttar Pradesh & Ors and vide order dated 01.07.2022 the Tribunal observed as follows:-
1. The applicant has filed the present application seeking setting aside/quashing of the impugned Environmental Clearance 43 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
dated 31.03.2018 issued in respect of Sand Ghat/Mine located at Khand No. 11/15 and 11/16 at Village Diya Upahar, Tehsil, Manjhanpur, District Kaushambi, Uttar Pradesh for an area admeasuring 24.28 hectares and restraining respondent no. 6 from transferring impugned environmental clearance in favor of respondent no. 7 on the grounds that the impugned environmental clearance is defective/invalid having been granted without EIA/EMP/Public Consultation and contrary to order dated 13.09.2018 passed by this Tribunal in O.A No. 186/2016 titled as Satendra Pandey Vs. MoEF & CC and others.
2. The that applicant has pleaded the impugned environmental clearance for the said Sand/Morrum Mining Project was awarded on 31.03.2018 by SEIAA, Uttar Pradesh in favor of M/s Rishab Herbal Pvt. Ltd. At the time of awarding of the environmental clearance the Project being less than 25 hectares was categorized as Category - B2 Project in view of MoEF & CC Notification dated 15.01.2016 and was exempted from EIA study, EMP and Public consultation. Subsequently, the MOEF & CC Notification dated 15.01.2016 was partly quashed by this Tribunal vide order dated 13.09.2018 passed in Satendra Pandey's case (supra) and Category B-2 projects were brought at par with Category B-1 Projects and EIA/EMP and Public Consultation were made mandatory for all projects having area above 5 hectares. The MoEF & CC vide Office Memorandum dated 12.12.2018 communicated the Judgment passed in Satendra Pandey case (Supra) to all State Chief Secretaries and SEIAAs for requisite compliance. The SEIAA/SEAC, Uttar Pradesh in compliance of the Judgment passed by this Tribunal in Satendra Pandey's case (Supra) and the MoEF & CC Office Memorandum dated 12.12.2018 treated all mining projects from 5 hectares to 25 hectares, earlier falling under Category B-2, as Category B-1 and decided to revoke 19 ECs granted without following the requisite procedure of EIA, EMP and Public Consultation. The mining lease was revoked and fresh E- auction notice was issued on 24.06.2021. Respondent no. 7 was granted LOI with liberty to get the existing environmental clearance transferred in his favour. Respondent no. 7, accordingly, submitted an application for transfer of the Impugned environmental clearance dated 31.08.2018 which was during pendency of the present application transferred in 44 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
favour of respondent no. 7 vide transfer order dated 04/22.04.2022. Environmental clearance dated 31.03.2018, which was coterminous with mining lease granted in favour of M/s Rishab Herbal Pvt. Ltd. and had expired with revocation thereof, could not be transferred in favour of Respondent no. 7. Respondent no. 4- MoEF & CC had under SSMG, 2016 and EMGSM, 2020 made conducting of replenishment study necessary for river bed This Tribunal quashed environmental clearance for sand ghats situated in the District Saharanpur, Uttar Pradesh granted without conducting α replenishment study. No replenishment study has been conducted for mining lease granted in favour of respondent no.7 Environmental clearance for mining lease granted in favour of respondent no. 7 without EIA, EMP. Public Consultation and replenishment study is defective/invalid and liable to be set aside.
3. Vide order dated 09.05.2022, considering the above, the Tribunal sought response of the respondents and also directed that no illegal mining should be carried out by Respondent No. 7-M/s Manali Vintrend Pvt. Ltd. Though the matter was scheduled to be listed for hearing on 28.07.2022, Respondent No. 7 filed applications for early hearing being IA No. 152/2022 and also IA No. 153/2022 for vacation of ex parte order. The said respondent has also filed counter affidavit. At the instance of Respondent No.7, the matter has been listed today. Though IA Nos. 152 and 153 of 2022 are shown to be listed for hearing, since the same also involves consideration of the entire matter, instead of piecemeal consideration of the said IAs, we have heard learned Counsel for the parties with reference to the issue raised in the main application also, preponing the hearing to today.
4. Main contention of the applicant is that grant of EC without EIA, EMP and replenishment study is not permissible in view of judgment of the Hon'ble Supreme Court in Deepak Kumar Vs. State of Haryana & Ors.1 following which this Tribunal passed order dated 13.09.2018 in Satendra Pandey's case (supra). In Deepak Kumar (supra), the Hon'ble Supreme Court observed:
xxx ..........................................................................xxx
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 45 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
extraction of alluvial material within or near a riverbed has an impact on 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."
5. The Tribunal held in Satendra Pandey's case (supra) that the directions in Deepak Kumar (supra) cannot be diluted by any administrative orders or notifications and laid down procedures have to meet the mandate of judgment of the Hon'ble Supreme Court. Observations of this Tribunal are as follows:
xx..........................................................................xx
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/ SIEAA as well as for cluster situation(2012) 4 SCC 629 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 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 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."
6. In the light of above, the MoEF&CC has issued revised procedure in terms of Enforcement and Monitoring Guidelines for Sand Mining 2020 (EMGSM-2020) inter-alia requiring replenishment study by way of para 5 and preparation of mining plan by way of para 4.3.
46O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
28. Learned Counsel for the applicant Mr. Dharamvir Sharma has submitted that a Civil Appeal No.7981-7982 of 2023 (Diary No.49608 of 2023) was filed before the Hon'ble Supreme Court of India and the Hon'ble Supreme Court vide order dated 13.12.2023 passed the order as follows:-
"ORDER Permission to file the appeal(s) is granted.
Issue notice and tag with Civil Appeal Diary No. 5072/2019.
Notice will be served by all modes, including dasti.
In the meanwhile, after the State Environment Impact Assessment Authority grants approval/clearance, the mining will be permitted. The SEIAA will be also entitled to pass interim orders to ensure availability of sand etc., while also ensuring proper compliance with the norms.
Re-list alongwith connected matter(s) in the month of January 2024."
29. Contentions of the learned Counsel are that the mining is permitted only after fresh appraisal and Environmental Clearance granted by the SEIAA.
30. In view of the above considerations, we are of the view that statutory regulations cannot be undone by any publication of office memorandum or office order. Secondly, there are violations in some of the cases where the Collector has inspected the mines and found illegal mining.
31. In view of above facts, our directions are as follows:-
(1) Respondents are directed that the EIA Notification, 2006, Sustainable Sand Mining Management Guidelines, 2016, and Enforcement and Monitoring Guidelines for Sand Mining, 2020, must be strictly complied with and none should be permitted for 47 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
the mining except in accordance with the EIA Notification, 2006.
In case of any violation and mining without Environmental Clarance (EC) granted by the SEIAA, necessary actions shall be immediately taken by the authorities concerned and order of Hon'ble Supreme Court must be complied with in letter and spirit.
(2) The State PCB is directed to ensure that the mining should be permitted only after Environmental Clearance granted by the SEIAA in accordance with the EIA Notification, 2006, and to do necessary actions including the calculation and realization of environmental damage for restitution of the environment.
(3) In the matter of mining by Sunil Gupta as narrated in para 13, in the matter of mining by Ramesh Khangar, illegal mining has been found, thus, the State PCB/Collector is directed to take necessary actions for realization of environmental damage according to rules. The State PCB has to take action within three months.
(4) The blasting activities must be undertaken in accordance with rule 30 (24) of the Minor Minerals Rules, 1996, and in accordance with the parameters laid down by the DGMS, Madhya Pradesh.
(5) Natural flow of the water in the nalla narrated above must be maintained and there should not be any human intervention in the free flow of water. In addition to that, the distance criteria with regard to abadi, school, river, pond as notified by the State must be maintained.
48O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.
32. With these directions, the Original Application No.63/2024(CZ) along with pending I.As., if any, stands disposed of.
Sheo Kumar Singh, JM Sudhir Kumar Chaturvedi, EM 18th May, 2026, Original Application No.63/2024(CZ) (I.A. No.148/2024) AK 49 O.A. No.63/2024(CZ) Abdul Kalam Vs. State of Madhya Pradesh & Ors.