National Green Tribunal
Shri.Rajiv Babasaheb Waman vs Ministry Of Environment Forest And ... on 31 May, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 03 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
M.A. 07/2022(WZ) & M.A. 08/2022(WZ)
IN
Original Application No. 68/2020(WZ)
Rajiv Babasaheb Waman & Ors. Applicant(s)
Versus
MOEF & Ors. Respondent(s)
Date of hearing: 31.05.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Mr. Parag Tripathi, Senior Advocate with Mr. A.P. Singh, Adv. for NHAI,
Applicant in M.A 07-08/2022 (WZ)
ORDER
1. These applications - M.A. No. 07/2022 and M.A. No. 08/2022 have been filed by NHAI in a disposed of matter for permission to file the application and 'clarification' of order of this Tribunal dated 17.02.2022 in OA 68/2020 and also for direction to amend direction dated 24.03.2022 issued by the Revenue and Forest Department, State of Maharashtra to the effect that temporary minor mineral extraction licenses should not be issued without environmental permission/clearance.
2. Case of the applicant is that it is undertaking projects of construction and maintenance of National Highways in Maharashtra through private 1 contractors. Presently, approximately 68 contracts of approximately Rs. 41,457 Crores are being executed in the State of Maharashtra. In the course of such execution, digging of earth and mining of minor minerals including murum and sand is involved. Such process is exempted from the EIA as per Notification of MoEF&CC dated 28.03.2020, as per entry 6 in Appendix-IX, to the said notification as follows:-
"1to5....................xxx..........................xxx...............................xxx
6. Extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc."
3. It is thus submitted that the direction issued by the Government of Maharashtra on 24.03.2022 and order of this Tribunal dated 17.02.2022 in OA 68/2020 are against the said exemption and thus need to be modified.
4. We have heard Shri Parag Tripathi, Senior Advocate in support of the applications and considered the matter.
5. Prayer in the applications cannot be granted in view of binding directions of Hon'ble Supreme Court in Deepak Kumar v. State of Haryana, (2012) 4 SCC 629 and order of this Tribunal dated 28.10.2020 in Original Application No. 190/2020, Noble M. Paikada vs. Union of India & Ors., 2020 SCC OnLine NGT 2741 holding that exemption notification dated 28.3.2020 is required to be revisited in the light of order of Hon'ble Supreme Court.
6. Vide order dated 17.2.2022 in OA 68/2020, which is sought to be modified, the Tribunal considered the issue of compliance of environmental norms in stone quarrying activities resulting in air pollution in the course of excavation and also transportation and diversion of natural stream and affecting flora and fauna in the mine area. The Tribunal found that such 2 activity cannot remain unregulated in view of mandate of the judgment of the Hon'ble Supreme Court in Deepak Kumar v. State of Haryana, (2012) 4 SCC 629, which is as follows:-
"xxx...........................................xxxx......................................xxx
20. The Report clearly indicates that operation of mines of minor minerals needs to be subjected to strict regulatory parameters as that of mines of major minerals. It was also felt necessary to have a relook to the definition of "minor minerals" per se. The necessity of the preparation of "comprehensive mines plan" for contiguous stretches of mineral deposits by the respective State Governments may also be encouraged and the same be suitably incorporated in the Mineral Concession Rules, 1960 by the Ministry of Mines.
21. Further, it was also recommended that the States, Union Territories would see that mining of minor minerals is subjected to simpler but strict regulatory regime and carried out only under an approved framework of mining plan, which should provide for reclamation and rehabilitation of mined out areas. Mining plan should take note of the level of production, level of mechanisation, type of machinery used in the mining of minor minerals, quantity of diesel consumption, the number of trees uprooted, export and import of mining minerals, environmental impact, restoration of flora and host of other matters referred to in the 2010 Rules. A proper framework has also to be evolved on cluster of mining of minor minerals for which there must be a Regional Environmental Management Plan. Another important decision taken was that while granting of mining leases by the respective State Governments, location of any eco-fragile zone(s) within the impact zone of the proposed mining area, the linked rules/notifications governing such zones and the judicial pronouncements, if any, need to be duly noted.
22......xxx........................................xxxx................................xxx
23. The Ministry of Mines, Government of India sent Communication No. 296/7/2000/MRC dated 16-5-2011 called "Environmental Aspects of Quarrying and of Minor Minerals--Evolving of Model Guidelines" along with a draft model guidelines calling for inputs before 30-6-2011. Draft rules called Minor Minerals Conservation and Development Rules, 2010 were also put on the website. Further, it may be noted that Section 15(1-A)@) of the Act specifies:
"15. (1-A)@ the manner in which rehabilitation of flora and other vegetation such as trees, shrubs and the like destroyed by reason of any quarrying or mining operations shall be made in the same area or in any other area [once] selected by the State Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the quarrying or mining lease;"3
24. We are of the view that all State Governments/Union Territories have to give due weight to the abovementioned recommendations of MoEF which are made in consultation with all the State Governments and Union Territories. The Model Rules of 2010 issued by the Ministry of Mines are very vital from the environmental, ecological and biodiversity point of view and therefore the State Governments have to frame proper rules in accordance with the recommendations, under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957.
25. Quarrying of river sand, it is true, is an important economic activity in the country with river sand forming a crucial raw material for the infrastructural development and for the construction industry but excessive instream sand and gravel mining causes the degradation of rivers. Instream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the streambed and along coastal areas causes the deepening of rivers which may result in destruction of aquatic and riparian habitats as well. Extraction of alluvial material as already mentioned from within or near a streambed has a direct impact on the stream's physical habitat characteristics.
26. We are of the considered view that it is highly necessary to have an effective framework of mining plan which will take care of all environmental issues and also evolve a long-term rational and sustainable use of natural resource base and also the bio-assessment protocol. Sand mining, it may be noted, may have an adverse effect on biodiversity as loss of habitat caused by sand mining will affect various species, flora and fauna and it may also destabilise the soil structure of river banks and often leaves isolated islands. We find that, taking note of those technical, scientific and environmental matters, MoEF, Government of India, issued various recommendations in March 2010 followed by the Model Rules, 2010 framed by the Ministry of Mines which have to be given effect to, inculcating the spirit of Article 48-A and Article 51-A(g) read with Article 21 of the Constitution."
7. The observations of this Tribunal are:-
"8.......We are further of the view that legal action needs to be taken for mining without EC. Vide order dated 03.02.2022 in O.A. No. 36/2021 (WZ), Siddharth Developers & Suppliers Through its Authorized Representative Shri Bharat Kathrani S/o Shri Rajnikant Kathrani v. Union of India Through Principal Secretary MoEF & CC, this Tribunal noted that requirement of EC has to be followed irrespective of the circular of State of Maharashtra dated 12.12.2013 addressed to all Divisional Commissioners and All Collectors for grant of temporary permits, in view of the law laid down by the Hon'ble Supreme Court in Deepak Kumar (Supra). Circular of the State of Maharashtra for issuing temporary permits does not and cannot dispense with the judgment of the Hon'ble Supreme Court in Deepak 4 Kumar (Supra). Doing so will be contempt of order of the Hon'ble Supreme Court. It is duty of the State of Maharashtra to issue clarification in view of the fact that its circular is rusting in defiance of judgment of the Hon'ble Supreme Court to the detriment of environment and rule of law. The Chief Secretary, Maharashtra may ensure further remedial action in this regard."
8. Shri Tripathi has referred to earlier judgment of this Tribunal dated 28.10.2020 in Original Application No. 190/2020, Noble M. Paikada vs. Union of India & Ors., 2020 SCC OnLine NGT 2741 wherein validity of Notification dated 28.03.2020 was also gone into as follows:-
"8. The second issue is exemption from requirement of EC for extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc. and for dredging and de-silting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, upkeep and disaster management. It is possible to take a view that the EC can be exempted for these situations on account of assessment already made or for extraction of earth for linear project but such blanket exemption must be balanced by sustainable development concept. The exemption should strike balance and instead of being blanket exemption, it needs to be hedged by appropriate safeguards such as the process of excavation and quantum. Similarly, in respect of item 7, safeguards are required to be incorporated in terms of disposal of dredged material. These aspects are not shown to have been considered and the reply does not provide any explanation thereon. Learned counsel for the MoEF&CC is also unable to provide any justification why these aspects be not addressed and incorporated in the notification for ensuring sustainable development concept which is required to be enforced by this Tribunal under Section 20 read with Section 15 of the NGT Act, 2010.
9. We accordingly dispose of this petition by directing the MoEF&CC to revisit the impugned notification in the light of the above observation within three months."
9. We thus find that the view taken by this Tribunal vide order dated 28.10.2020 does not enable unconditional blanket exemption for extraction of earth for linear projects from environmental regulations. Infact, the Tribunal directed the MoEF&CC to revisit the Notification granting such blanket exemption in the light of directions of the Hon'ble Supreme Court in Deepak Kumar, supra. Contention that manual of NHAI 5 takes care of environment can also not be accepted as the manual is not enforceable mechanism under which aggrieved parties can take remedy.
10. In the list of dates handed over by learned Senior Counsel, Shri Tripathi has submitted that the issue has been adjudicated upon by the Hon'ble Supreme Court in W.P. No. 631/2020, Society for protection of Environment and Biodiversity v. Union of India. However, this is not correct as held in the earlier order of this Tribunal dated 28.10.2020 as follows:-
"6. As regards dismissal of a writ petition by the Hon'ble Supreme Court, it is not clear whether the merits have been gone into. It is also not clear as to what was the contention or the issue therein. The order cited cannot be read as laying down the law. While parties to the petition are bound that it is difficult to accept the plea that the matter is concluded by the said order."
11. We are of the opinion that excavation of earth and mining of sand and other minor minerals being hazardous activity having serious adverse impact on environment in view of 'Precautionary' and 'Sustainable Development' principles, such activity cannot be left unregulated by statutory enforceable mechanism. Blanket exemption is against ecologically sustainable development norms and judgment of Hon'ble Supreme Court.
12. As already noted, following the judgment in Deepak Kumar (Supra), this Tribunal vide order dated 28.10.2020 and further order dated 17.02.2022 held that regulatory mechanism with respect to such activity is mandatory. The order issued by the Maharashtra Government dated 24.03.2022 is consistent with the principle of 'Sustainable Development' and necessary to safeguard against unregulated hazardous activity, adversely affecting the environment. While highways are necessary for the country, the same have to be developed without compromising environmental norms.
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Accordingly, the applications are dismissed.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Arun Kumar Tyagi, JM Dr. Vijay Kulkarni, EM Dr. Afroz Ahmad, EM May 31, 2022 M.A. 07/2022(WZ) & M.A. 08/2022(WZ) In Original Application No. 68/2020(WZ) SN 7