National Green Tribunal
Mohammad Ilyas vs State Of Jharkhand Represented Through ... on 30 July, 2024
Item No.08 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Appeal No.24/2023/EZ
(I.A. No.50/2024/EZ)
IN THE MATTER OF
1. Mohammad Ilyas,
S/o Ahmad Ali
Nimadih, P.O.- Arkhango,
P.S.- Dhanwar,
District- Giridih.
2. Md. Saraj,
S/o Sadik Miyan
Baijudih, P.O.- Kubri,
P.S.- Dhanwar,
District- Giridih.
3. Arun Kumar Ladia,
S/o Late Vishwanath Prasad
Vill-Tundi,
P.O. & P.S.- Giridih,
District- Giridih,
Pin- 815301.
.......Appellant(s)
Versus
1. State of Jharkhand,
Through Additional Chief Secretary,
Department of Forests, Environment & Climate Change,
Government of Jharkhand, Nepal House,
Ranchi- 834002.
2. State Level Environment Impact
Assessment Authority (SEIAA), Jharkhand,
Through its Member Secretary,
Nursery Complex, Near Dhurwa Bus Stand,
Dhurwa, Ranchi,
Pin- 834004.
3. Collector Cum Deputy Commissioner, Giridih,
Mahesh Mundi,
Paparwatand Colony, Jharkhand,
Pin- 815301.
4. District Mining Officer,
Giridih, Kuldiha,
Jharkhand - 815311.
1
5. Divisional Forest Officer,
Giridih East Division,
13, Forest Colony,
Giridih,
Jharkhand - 815301.
6. Central Pollution Control Board,
7. Ministry of Environment, Forests & Climate Change,
New Delhi,
...........Respondent(s)
Date of hearing and reserving of order: 30.07.2024
Date of uploading of order on NGT Website: 23.08.2024
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Appellant(s) : Mr. Sanjay Upadhyay, Sr. Advocate a/w
Ms. Paushali Banerjee, Advocate
For Respondent(s) : Ms. Aishwarya Rajyashree, Adv. for R-1,3-5, (in Virtual Mode)
Mr. Ashok Prasad, Advocate for R-2,
Mr. Dipanjan Ghosh, Adv. for R-6, (in Virtual Mode)
Mr. Apurba Ghosh, Adv. for R-7, (in Virtual Mode)
ORDER
1. Mr. Sanjay Upadhyay, learned Senior Counsel assisted by Ms. Paushali Banerjee, learned Counsel are present for the Appellants and Ms. Aishwarya Rajyashree, Mr. Ashok Prasad, Mr. Dipanjan Ghosh and Mr. Apurba Ghosh, learned Counsel for the Respondents.
2. The Appellants in the present Appeal are seeking quashing of the Order dated 08.08.2023 passed by State Environment Impact Assessment Authority (SEIAA), Jharkhand, cancelling the Environmental Clearance of the Appellants dated 31.12.2014, inter- alia, on the ground that the distance of the Appellants' Plot from the forest land is Zero.
3. It is stated that the Appellant No.3, Arun Kumar Ladia, was granted mining lease of stone minor mineral over 1.81 acres of land situated in Mouza - Lakhanpur, Police Station - Bengabad District- 2 Giridih, bearing Cadastral Survey No./Thana No.349 over Khata Nos.02 & 04, Plot Nos.04 & 05 (P) under Jharkhand Minor Mineral Concession Rules, 2004, for a period of 10 years w.e.f. 05.02.2015 after fulfilment of all statutory criteria. The Appellant Nos.1 and 2 are the present lease holders to whom the lease had been stated to be transferred by the Appellant No.3 vide registered Lease Deed dated 26.11.2021.
4. It is further stated that prior to the grant of the aforesaid mining lease, the Project Proponent, Appellant No.3, had submitted application on 07.11.2014 for grant of prior Environmental Clearance of the Stone Mining Project on Plot Nos.4 & 5 (P), Village
- Lakhanpur, Block - Bengabad, District - Giridih, Jharkhand, along with all statutory documents like - NOC given by the Gram Sabha and certificates issued by Circle Officer, Bengabad, District Mining Officer, Giridih and Divisional Forest Officer, Giridih East Division etc.
5. It is also stated that the Circle Officer, Bengabad forwarded letter No.786 dated 23.10.2013 to the Assistant Mining Officer, Giridih, stating specifically therein that the Plot in question is not forest land. It is stated that thereafter the Divisional Forest Officer, Giridih East Division, issued letter dated 25.02.2014 to the Assistant Mining Officer, Giridih regarding distance of the applied area for mining lease from the forest boundary which is more than 500 meters. On the basis of the aforesaid documents, the proposal was appraised by the State Expert Appraisal Committee (SEAC) in its 24th Meeting held on 15-18th December, 2014, and the Project was recommended for grant of Environmental Clearance and ultimately the State Environment Impact Assessment Authority 3 (SEIAA) Jharkhand, in its 28th Meeting held on 30.12.2014 decided to grant Environmental Clearance to the Project of the Appellant No.3 and in pursuance thereof Environmental Clearance was granted on 31.12.2014.
6. It is also stated that in 2021, the Appellant No.3 transferred the lease of the land in question to the Appellant Nos.1 and 2. However, the Appellant Nos.1 and 2 thereafter received an order from SEIAA vide Memo No.319 dated 22.12.2022 keeping the Environmental Clearance in abeyance in view of the letter of the Divisional Forest Officer, Giridih, dated 15.12.2022 stating that the lease area is situated at Zero distance from the forest land and is encroaching into the adjoining forest Plot No.01. It is stated that the contention of the Divisional Forest Officer in his letter dated 22.12.2022 is that Plot No.01 is a notified Forest and the distance of Plot Nos.4 & 5 (P) i.e., the Plots in question, from Plot No.1 is Zero.
7. The case of the Appellants is that no show cause notice has been issued by SEIAA, Jharkhand, to them before passing the order dated 22.12.2022 keeping the Environmental Clearance in abeyance. However, SEIAA issued letter dated 29.12.2022 directing the Appellant No.3 to submit written statement before SEIAA.
8. It is stated that the three Appellants appeared before SEIAA, Jharkhand, and submitted their reply dated 10.01.2023. It is also stated that SEIAA, Jharkhand, thereafter provided opportunity of hearing to the Project Proponent on 22.06.2023. The Appellant No.3 appeared before SEIAA, Jharkhand on 22.06.2023 and filed his written submission. The stand of the Appellants is that Plot No.01 of Mouza - Lakhanpur is recorded as 'Jungle Jhar' and it is stated that only 49.90 acres, out of 81 acres of the full plot area, has been 4 notified as 'Protected Forest' vide communication No.3983 dated 26.11.2022 of the Divisional Forest Officer addressed to the District Mining Officer, Giridih. It is stated that the guidelines requiring maintaining minimum 250 meters distance from Protected Forest and Reserve Forest is with respect to Protected Forest and Reserve Forest and not from 'Jungle Jhar' as per Specific Conditions No.6 and 10 of the Environmental Clearance.
9. The case of the Appellants further is that in his Memo No.3983 dated 26.11.2022 the Divisional Forest Officer, Giridih East Division, has stated that afforestation has been done over Plot No.16/20 of this Mouza at 195 meters and the same has been sent to the Government for notification and, therefore, the Divisional Forest Officer cannot turn the clock anti-clockwise and adversely affect a backdated Clearance/Mining Lease on the basis of a notification which is yet to be published.
10. The Appellants have filed letter of the Circle Officer, Bangabad, dated 23.12.2013 (Annexure-B, page 81) and submitted that the Circle Officer Bangabad had itself certified that the plot in question, namely, Khasra No.04, 05 (P) area 1.01 acres is not 'Jungle Jhari' and is also not a forest land.
11. Reference has also been made to the letter of the Divisional Forest Officer, Giridih East Division, dated 22.02.2014 (Annexure-C, page no.83, to the Memo of Appeal), and it is submitted that the Divisional Forest Officer had also certified that the land in question is not a notified forest and besides the said land is 500 meters away from the notified forest land.
12. The submission of Mr. Sanjay Upadhyay, learned Senior Counsel for the Appellants is that it is on the basis of this document that 5 State Expert Appraisal Committee ('SEAC' for short) had recommended for grant of Environmental Clearance to the Project Proponent ('PP' for short) and on the basis of the recommendations of SEAC, the Environmental Clearance dated 31.12.2014 (Annexure-D, page 84) was granted to the Appellant No.3 by the SEIAA, Jharkhand.
13. From the document dated 22/29.12.2022 filed as Annexure-E (page no.89), we find that the letter of the Divisional Forest Officer, Giridih East Division, dated 25.02.2014 was considered by the SEAC, Jharkhand, in its 24th meeting held on 15-18.12.2014 on the basis of which the SEIAA, Jharkhand, in its 28th meeting held on 30.12.2014 had recommended for grant of Environmental Clearance to the Project Proponent.
14. The submission of the learned Senior Counsel further is that the lease of the land in question was transferred by the Appellant No.3, Arun Kumar Ladia, to the Appellant No.1 & 2, Mohammad Ilyas and Md. Saraj respectively in 2021 but thereafter the SEIAA, Jharkhand, by its order dated 22.12.2022 communicated to the Appellant Nos.1 & 2 that the Environmental Clearance had been kept in abeyance in view of the letter of the Divisional Forest Officer dated 15.12.2022 and also that the Appellant had encroached into adjoining forest Plot No.01. It is stated that the contention of the Divisional Forest Officer in his Memo No.319 dated 22.12.2022 is that the Plot No.01 is a notified forest and the distance of the said plot from the Plot Nos.4 & 5 (P) is Zero. It has been vehemently contended by the learned Senior Counsel that the Plot No.1 is Raiyati land which was purchased by one Jamuna Ram through a deed of settlement from one Kani Ram in 1951 and Jamuna Ram and his legal heirs were in possession of Plot No.1 since 1951; the 6 Appellant No.3, Arun Kumar Ladia, purchased 1.00 acre of land in Plot No.1 from the legal heirs of Jamuna Ram through two deeds being Deed Nos. 9519 and 9520 in 2014.
15. Reference has also been made to the order of the Forest Settlement Officer dated 16.07.1962 (Annexure-G, page no.132) in Case No.285 of Bengabad of 60-61, Petitioner-Sri Jamuna Ram and others, and it is submitted that the Forest Settlement Officer had conducted an enquiry on 04.12.1961 and found the land to be Parti and Waste land without any forest vegetation and, therefore, it was ordered that the Plot No.1 and Plot No.35 are Raiyati land of the Petitioner, Sri Jamuna Ram and others, and it is for the Divisional Forest Officer to consider the usefulness of this land for afforestation purposes and to take necessary steps for its acquisition under the Land Acquisition Act. It was further directed that if the Divisional Forest Officer did not take any step for acquisition within a period of three months from the receipt of the order, the petitioner shall have to take a formal order of release from the court of the Forest Settlement Officer.
16. The stand of the Appellants further is that till date no notice of acquisition has been issued to the Appellants and the name of Sri Jamuna Ram is recorded as owner of the plot in question though thereafter the Appellant No.3 purchased 1.00 acre of Plot No.1 from its recorded owner.
17. It is further submitted by the learned Senior Counsel for the Appellants that SEIAA, Jharkhand, without issuing any show cause notice to the Appellants has issued Memo No.319 dated 22.12.2022 keeping the Environmental Clearance granted on 31.12.2014 in 7 abeyance in view of the letter of the Divisional Forest Officer, Giridih, dated 15.12.2022.
18. The case of the Appellants further is that in pursuance of the notice issued by SEIAA, Jharkhand, the Project Proponent, Arun Kumar Ladia, Appellant No.3, and lessees Mohammad Ilyas and Md. Saraj, Appellant Nos.1&2, appeared before the SEIAA and submitted their reply dated 10.01.2023 stating that the alleged letter of the Divisional Forest Officer and the letter No.4261/22 through which the Environmental Clearance was kept in abeyance were not supplied to the Appellants and there is no allegation of deliberate concealment or submission of false/misleading information or data by the Project Proponent and, therefore, the provisions of Clause 8
(vi) of the EIA Notification, 2006, is not attracted in the present case nor has the Appellant been convicted by any court of law nor has the lessee been convicted of any illegal mining/encroachment over Plot No.1 of Mouza-Lakhanpur.
19. It is stated that after about five months the SEIAA, Jharkhand, provided opportunity of hearing to the Project Proponent on 22.06.2023 vide Memo No.142 dated 12.06.2023. The Appellant No.3 Arun Kumar Ladia, appeared before the SEIAA in the hearing held on 22.06.2023 and filed his written submissions along with preliminary objection, copy of the written submissions has been placed on record as Annexure-K (page145), which read as under:-
"(i) Any appeal against environment clearance lies with NGT and hence the Divisional Forest Officer, Giridih should have filed its objection/complain if any before NGT and not SEIAA;
(ii) The exercise of power delegated to SEIAA vide S.O.637 (E) dated 28.02.2014 of MOEFCC can only be used when SEIAA is 8 satisfied that there is violation of the conditions of environment clearance;
(iii) The DFO, Giridih has unambiguously accepted that Plot No.01 of Mouza Lakhanpur is recorded as 'Jungle Jhar' in Khatian and is to be treated as deemed forest as only 49.90 acres part area out of 81 acres of full plot area has been notified as protected forest vide communication No.3983 dated 26.11.2022 of DFO addressed to District Mining Officer, Giridih.
(iv) That guideline of 250 meters of distance is from Protected Forest and Reserve Forest and not from 'Jungle Jhar' (Refer A. Specific Conditions No.6/10 of EC);
(v) The contention of DFO Giridih is totally against the principle of natural justice and fair play when he says in Memo No.3983 dated 26.11.2022 that afforestation has been done over Plot No.16/20 of this Mouza at 195 meters and the same has been sent to Government for notification. DFO is unaware that he cannot turn the clock anti clockwise and adversely affected a backdated clearance/mining lease on the basis of a notification which is yet to be published;"
20. It is also stated that the Divisional Forest Officer, Giridih, vide his letter dated 26.11.2022 informed the District Mining Officer, Giridh, that 49.90 acres of land in Plot No.01 is forest land and the Hon'ble Supreme Court vide its order dated 12.12.1996 passed in Writ Petition No.202/1995 (T. N. Godavarman Thirumulpad Vs. The Union of India), directed creation of a Committee to identify forest land, based on which the forest is to be a 'deemed forest'. It is also stated that the Divisional Forest Officer, Giridih, vide his letter being No.483/2022 informed that the Plot Nos. 4 & 5 (P) are at Zero distance from the Plot No.01 which is forest land.
21. The term 'forest' has been defined by the Hon'ble Supreme Court in T. N. Godhavarman (Supra) vide its order dated 12.12.1996. Para 4 of the judgment reads as under:-
9
"4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest" must be understood according to its dictionary meaning. This description covers all statutorily recognized forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest land" occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State of Gujarat, Rural Litigation and Entitlement Kendra v. State of U.P. and recently in the order dated 29-11-1996 (Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority). The earlier decision of this Court in State of Bihar vs. Banshi Ram Modi has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permission granted for mining in such area which is clearly contrary to the decisions of this Court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay."
22. The submission of the learned Senior Counsel for the Appellants is that although the letter of the Divisional Forest Officer, Giridih, states that the Plot No.01 is notified as 'deemed forest' but only 49.90 acres of Plot No.01 is forest land out of the total area of 81 10 acres as per the notification of 1953. It is further submitted that the Appellant No.3 has purchased only 1.00 acres of Plot No.01 from its recorded owner and there is nothing on record to show that this plot is a part of the 49.90 acres of land declared to be forest land.
23. It is further submitted that neither the Appellants nor their predecessors were ever issued any notice communicating any notification of 1953 or otherwise to show as to which part of Plot No.01 has been demarcated as forest land which may or may not include 1.00 acres of land being purchased by the Appellant No.3, even though in terms of the directions of the Hon'ble Supreme Court issued in T. N. Godhavarman (Supra), it is the responsibility of the State Government to constitute an Expert Committee to identify the forest land.
24. The categorical case of the Appellants is that even if 49.90 acres out of 81 acres of Plot No. is declared to be forest, the same is required to be demarcated by the Expert Committee. The contention of the Appellants is that the Plot purchased by the predecessor of the Appellant No.3 was declared to be 'Parti and 'Waste' land and that Jamuna Ram, the predecessor of the Appellants, had acquired Raiyati Right over 60.50 acres in Village- Palokhari and 192.50 acres in Village-Lakhanpur; and that Plot No.01 of Village-Lakhanpur and Plot No.35 of Village-Palo Khari are part and parcel of the above mentioned Raiyati land as per order of the Forest Settlement Officer dated 16.07.1962.
25. The categorical stand of the Appellants further is that they have not done any illegal mining on Plot No.01 rather they have constructed 11 an approach road on Plot No.01 to reach Plot Nos.4&5 (P) in terms of the mining lease deed of 2015 Part-II Clause 3.
26. The Appellants have further placed on record the Central Pollution Control Board's Guidelines, 2020 (page 330 of the paper book), with regard to the 'Distance Criteria for Permitting Stone Quarrying' which was issued in pursuance of the order of the National Green Tribunal in Original Application No.304/2019 (M. Haridasan & Ors. Vs. State of Kerala), wherein the Tribunal had observed that the distance of 50 meters for stone quarry, particularly when blasts are involved, is highly inadequate and can have deleterious effect on noise and air pollution, environment and public health and had directed the Central Pollution Control Board to examine the matter and lay down more stringent conditions and appropriate distance.
27. We find that in these guidelines there is no existing distance criteria laid down for mining activities in the State of Jharkhand but that does not mean that there cannot be or should not be any siting criteria for stone quarrying mines in the State of Jharkhand. However, by way of illustration, a perusal of existing guidelines show that for Kerala a minimum 100 meters distance has been prescribed from residential buildings, places of worship, public buildings, public road, river or lake, railway line and bridges and where mining is carried on using explosives the distance is 100 meters; for Karnataka where blasting is involved it is 200 meters and where no blasting is involved it is 50 meters; for Maharashtra where blasting is involved it is 200 meters and where no blasting is involved it is 50 meters; for Gujarat where blasting is involved it is 200 meters and where no blasting is involved it is 50 meters; for Rajasthan it is 45 meters; for Madhya Pradesh it is 50 meters; for 12 Punjab it is 75 meters; for Tamil Nadu it is 50 meters; for Orissa it is 100 meters; for Chhattisgarh it is 300 meters; for Bihar it is 50 meters; for Uttar Pradesh it is 50 meters; for Himachal Pradesh it is 75 meters; for Jammu & Kashmir it is 500 meters where explosives are used and 150 meters where explosives are not used; for West Bengal it is 5000 meters minimum distance from barrage axis or dam or a river and 200 meters minimum distance from any hydraulic structure, reservoir, bridge, canal, road and other public works or buildings and 200 meters minimum distance from both sides of any river bridge or culvert over any waterway or from any embankment and structural works of the irrigation and waterways and 100 meters minimum distance from any railway land; for Assam it is 250 meters minimum distance from outer periphery of the defined limits of any village habitation, national highway, state highway and other roads and 50 meters where no blasting is involved; for Meghalaya it is 50 meters and 10 meters; and for Manipur it is 50 meters.
28. At the cost of repetition, we may observe that State of Jharkhand is not mentioned in this list, however, the Central Pollution Control Board Guidelines, 2020, now prescribes uniform criteria for distance of 100 meters in case of quarry without explosives and 200 meters quarry with blasting, with the condition that stricter criteria would prevail if those criteria exist in the State regulation. Incidentally, the criteria under the Central Pollution Control Board Guidelines, 2020, does not contain any reference to distance of quarry from forest area such that a quarry should be environmentally compliant.
13
29. The Appellants have filed further affidavit dated 02.04.2024 wherein it is stated that the Plot No.01 was purchased by Sri Jamuna Ram through Deed No.806/51 of settlement in 1951 and the Appellant No.3, Arun Kumar Ladia, purchased 1.00 acre of the said Plot No.01 through Deed Nos.9519 and 9520 in 2014 from the heirs of Sri Jamuna Ram. The Appellants have also filed the copy of the Record of Rights dated 26.11.2022 wherein the Plot No.1+1 is shown having area of 145 acres, 2 decimal, 0 hectares and the agricultural revenue rent (Lagaan) being paid is Rs.145.1 and cess is shown as 210.4. Learned Senior Counsel for the Appellants submitted that the Lagaan is the rent paid for agricultural revenue land and the Record of Rights does not show the land in question be a protected forest. It is categorically denied that the Plot No.01 is a notified forest land, since acquisition of the said land, which is admittedly a private land, has not yet been completed.
30. The Collector-cum-Deputy Commissioner, Giridih, Respondent No.3, along with his affidavit of 22.11.2023 has filed document dated 18.11.2023 as Annexure-1 (page no.192 of the paper book), which is a letter of the Circle Officer, Bangabad, with regard to the status of Thana No.349, Khata No.1, area 1.70 acres in Mouza- Lakhanpur, to show that the said land is recorded in the name of Devanti Devi, W/o Dharam Ravidas-S/o Sanichar Ravidas, which is shown to have been purchased. The other Plot No.01 is shown to be recorded in the name of Jamuna Ram, Radhika Ram, Mathura Ram, S/o Dularchand Ram and Moosan Ram and Budhan Ram in Mouza-Lakhanpur. The document further mentions Case No.1/2004-05, area 81.00 acres and Plot No.15 area 44.75, Plot No.23 area 66.75 total area 192.50 and Mouza-Palokhari Khata 14 No.1, Plot No.35 area 58050, Plot No.25 area 2.02 total 60.52 decimals and combined area of both the Mouzas being 253.02 acres is remaining after sale which is shown as 145.02 decimals and it is mentioned that from the documents in the revenue office it is not clear as to what is the nature of the remaining land of Mouza- Lakhanpur Khata No.349, Plot No.1, and this is a matter for adjudication by the appropriate court.
31. The District Mining Officer, Giridih, Respondent No.4, has filed affidavit dated 22.11.2023 stating that Appellant No.3, Arun Kumar Ladia, was granted mining lease of stone minor mineral over 1.81 acres of land situated in Mouza-Lakhanpur, Police Station- Bengabad, District-Giridih, bearing Cadastral Survey No./Thana No.349 over Khata No.02&04, Plot Nos.-04&05(P) for a period of 10 years w.e.f. 05.02.2015 under the Jharkhand Minor Mineral Concession Rules, 2004. It is stated that Arun Kumar Ladia, Appellant No.3, transferred this mining lease in favour of the Appellant Nos.1&2, Mohammad Ilyas and Md. Saraj, vide registered lease deed dated 26.11.2021 under Rule 24 of the Jharkhand Minor Mineral Concession Rules, 2004, and as such on and with effect from 26.11.2021/30.11.2021, the transferee Mohammad Ilyas and Md. Saraj, Appellant Nos.1&2, respectively, became the lessees by stepping into the shoes of the transferor and original lessee Arun Kumar Ladia.
32. In the affidavit, it is further stated that the Divisional Forest Officer, Giridih, vide letter No.3840 dated 12.11.2022 (Annexure-2, page 234, to the affidavit), informed that the lessee has encroached Plot No.1 which is Forest/Jungle Jhari land and has gone beyond his lease boundary and that Plot Nos.4&5 (P) are situated at Zero meter 15 distance from the said forest land. It is stated that the Appellants/lessee opposed the report of the Circle Officer, Bengabad, dated 26.11.2022 whereupon re-demarcation of the mining lease area was carried out under the supervision of Additional Collector, Giridih, and the mining lease area over Plot Nos.4&5 (P) was re-demarcated vide Demarcation Case No.52/2022-23 wherein it was reported that the mining operation of lessees Mohammad Ilyas and Md. Saraj, Appellant Nos.1&2, is confined over Plot Nos.4&5(P) only and Plot No.01 of Mouza- Lakhanpur is being used as approach road to the mining lease area. It was also reported that lessee/ex-lessee is having 1.00 acres of land over Plot No.01 of Mouza-Lakhanpur by way of registered sale-purchase deed over which ex-lessee had built-up the road which is still in use.
33. It is further stated that in the meantime the Divisional Forest Officer, Giridih, vide his letter No.3983 dated 26.11.2022 addressed to the District Mining Officer, informed that earlier No Objection letter No.391 dated 25.02.2014 issued by the then Divisional Forest Officer, Giridih, was due to mistake of fact and according to the present Divisional Forest Officer this mining lease is situated at Zero distance from the forest land. It was also stated by the Divisional Forest Officer that Plot No.01 of Mouza-Lakhanpur was entered as ''Jungle Jhar' in Khatian and an area of 49.90 acres was notified as forest land vide Notification of 1952/1954 under the Indian Forest Act, 1927.
34. In the affidavit, it is further stated that it appears that the present Divisional Forest Officer, Giridh, has made individual communication directly to the SEIAA, Jharkhand, upon which the 16 SEIAA, Jharkhand, has passed the impugned order of 08.08.2023 cancelling the Environmental Clearance dated 31.12.2014.
35. The Divisional Forest Officer, Giridih East Forest Division, Jharkhand, Respondent No.5 in his affidavit dated 30.11.2023 has stated that the Forest Range Officer, Khurchutta Range, Bengabad, carried out a detailed survey along with the Forester-in-Charge and Forest Guard on 10th November, 2022 and 12th November, 2022 and submitted a report vide letter dated 12.11.2022 wherein it was stated that the Plot Nos.4&5(P) are situated adjacent to the notified and demarcated protected forest of Plot No.01, and that the stone quarry operations were being conducted in a portion of the forest area in Plot No.01 by illegally encroaching upon it and, therefore, an Offence Report No.01420 dated 12.11.2022 has been lodged against the stone quarry owners/managers (Appellants). It is also stated that the Plot No.01 in Lakhanpur-Mouza was initially notified as a private protected forest under Section 14 of the Bihar Private Forest Act, 1946 ('the Act, 1946' for short) vide Notification No.12726-VIF-156/46R dated 30.11.1946. Subsequently, Notification No.1863-VIF/296/50R dated 30.03.1950 was issued under Section 15 of the Act, 1946, declaring Plot No.01 in Lakhanpur-Mouza as a private protected forest wherein ownership of the land has been shown to be in favour of the then Raja (Jamindar) Raja Bahadur Kamakhya Narayan Singh of Padma which later vested in the State of Bihar (now State of Jharkhand) after promulgation of the Bihar Land Reform Act, 1950, and the land in question was thereafter notified as a protected forest vide Notification Nos.CPF-10152/52-5803R dated 27.12.1952 and C/F- 17066/54-3419R dated 11.08.1954. It is stated that under this 17 notification the name of the owner of the land in column no.2 is shown as 'State of Bihar'.
36. In the affidavit, it is further stated that the total area of Plot No.01 in Mouza-Lakhanpur is 81 acres out of which 49.90 acres was notified as Protected Forest vide Notifications dated 27.12.1952 and 11.08.1954; thereafter the Forest Settlement Officer ('FSO' for short) was appointed to enquire into the rights and claims of private individuals, if any, and the FSO after making due enquiry of claims made, if any, demarcated an area of 48.02 acres of Plot No.01 on the map and duly signed on 28.02.1966 as 'forest' and since then the demarcated forest area of Plot No.01 has been in undisputed possession, control and management of the Forest Department and has been a part of the management under Working Plan.
37. The stand of the Divisional Forest Officer, Giridih, further is that only 48.02 acres of land has been demarcated as protected forest out of the total area of 81 acres in Plot No.01 and the rest of the area i.e., 33 acres of Plot No.01 is the property of the State Government and has been handed over to the Divisional Forest Officer, Giridih East Forest Division by the Circle Officer, Bengabad, for plantation purposes vide his letter dated 14.02.2023; the nature of this 33 acres of land (outside demarcated protected forest) is 'Jungle Jhadi' as per the Government records and is considered as 'deemed forest'.
38. It is also stated that the Deputy Commissioner, Giridih, directed the Circle Officer, Bengabad, vide his letter No. 1089/M dated 24.11.2022 to conduct an enquiry and as per the enquiry report dated 26.11.2022 it was confirmed that illegal excavation and 18 mining has been done in part of Plot No.01 and accordingly information was communicated to the SEIAA, Jharkhand, by the Divisional Forest Officer, Giridih East Forest Division, vide his letters dated 15.12.2022 and 21.12.2022 stating that the actual distance of mining lease area of stone quarry of Shri Arun Kumar Ladia, Appellant No.3, at Plot Nos.4&5(P) in Lakhanpur-Mouza is at Zero meter and the previous report of the then Divisional Forest Officer dated 25.02.2014 is incorrect. It was also pointed out that the Plot No.01 is a notified forest in which illegal mining is being carried on by the Appellants which constitutes violation of Condition C (2) of the Environmental Clearance. It is also the stand of the State Respondents that the said mining by the Project Proponent, Appellants, would have an adverse impact on forest area and plantation work done nearby and, therefore, a request was made for cancellation of the Environmental Clearance.
39. The stand of the State Respondents further is that the distance of boundary of the mining lease of Plot No.5(P) is at Zero meter from the notified forest, the same does not fulfill the criteria of the minimum distance of 250 meters for Environmental Clearance.
40. The stand of the Ministry of Environment, Forests and Climate Change, Respondent No.7, in its affidavit dated 26.07.2024 is that vide Notification S.O.1886(E) dated 20.04.2022 Environmental Clearance of all minor minerals shall be dealt at State level irrespective of mine lease area. It is also stated that the land in question is a subject matter of State Government and forest areas and the legal boundaries thereof are determined by the State Government.
19
41. It is further stated that prior approval from the Central Government under Section 2 of the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980 (formerly known as Forest (Conservation) Act, 1980) is mandatory for carrying out any non-forestry activity in the forest land. Reference has also been made to the judgment of the Hon'ble Supreme Court dated 12.12.1996 passed in Writ Petition (C) No.202 of 1995 (T. N. Godavarman Thirumulpad Vs. Union of India & Ors.).
42. The SEIAA, Jharkhand, Respondent No.2, in its affidavit dated 05.01.2024 has reiterated the stand of the Divisional Forest Officer, Giridih, and stated that the Divisional Forest Officer vide his letter dated 21.12.2022 complained that the actual distance of mining lease of stone mine of Arun Kumar Ladia, Appellant No.3, at Plot Nos.4&5(P) Village-Lakhanpur, Block-Bengabad, District-Giridih, Jharkhand (area 0.732 hectares) is only Zero meter from the forest standing on Plot No.01 and that the previous certificate issued by the then Divisional Forest Officer vide letter dated 25.02.2014 was wrong. It is also stated that the present Divisional Forest Officer complained that the Project Proponent (i.e., the Appellants herein), was carrying on illegal mining activity on Plot No.01 which is a notified forest and, therefore, a forest case has also been lodged against the Project Proponent; the Appellant No.3 was also issued a show cause notice vide SEIAA, Jharkhand, letter dated 22.12.2022; the Project Proponent submitted his reply on 10.01.2023 denying the contents of the show cause notice; thereafter a clarification was also sought from the Divisional Forest Officer, Giridih, vide SEIAA, Jharkhand, letter dated 09.02.2023 which was submitted by the Divisional Forest Officer, Giridih, vide his letter dated 20.05.2023 20 stating that the mining was being carried on on Plot Nos.4&5(P) and was within Zero meter distance from the notified forest standing on Plot No.01 which is protected/notified forest and, therefore, in violation of the requirement of a minimum distance of at least 250 meters for grant of Environmental Clearance.
43. It is also stated that the Divisional Forest Officer, Giridih, and the Appellant No.3 with his authorized representative Shri Raghaw Nandan Prasad, appeared before the SEIAA on 22.06.2023 and they were heard and cadastral map was also filed by the Divisional Forest Officer to show illegal mining being done by the Appellant No.3 on Plot No.01 which is adjacent to Plot No.4.
44. We have heard the learned Counsel for the parties and perused the documents on record.
45. The Environmental Clearance dated 31.12.2014 was granted to the Project Proponent, Appellant No.3, by the SEIAA, Jharkhand, on the basis of its recommendations in its meeting held on 30.12.2014. Condition 'A' of the Environmental Clearance deals with 'Specific Conditions', Condition 'B' deals with 'General Conditions' and Condition 'C' deals with 'Other Points'. Condition C (2) of the Environmental Clearance provides that "the Environmental Clearance accorded shall be valid for the period of grant of lease for the mine (generally 10 years). The PP shall not increase production rate and alter lease area during the validity of Environmental Clearance". The lease was granted for the project of stone mine of Shri Arun Kumar Ladia, Appellant No.3, on Plot Nos.4&5(P) in Village-Lakhanpur, Block-Bengabad, District-Giridih, Kharkhand (Area 0.732 Ha.).
21
46. From the Environmental Clearance it is clear that the same was granted for stone mining operation only on Plot Nos.4&5(P) and not on Plot No.01 or any part thereof. The stand of the Appellants is that the land in question has not been identified as a forest area which was a mandatory requirement in view of the judgment of the Hon'ble Supreme Court in T. N. Godhavarman (Supra). The learned Senior Counsel appearing for Appellants submitted that the undisputed fact in the present case is that Plot No.01 comprised an area of 81 acres of which only 49.90 acres was declared to be forest land by the then Government of Bihar vide Notification of 1953. The contention of the learned Senior Counsel is that part of this 49.90 acres of land out of the total 81 acres in Plot No.01 has not been demarcated and, therefore, it cannot be alleged that the Appellants have encroached into the forest land and carried out illegal stone mining. The submission of the learned Senior Counsel further is that a Committee of Experts ought to have been constituted in order to determine as to whether the Plot No.01 was indeed a waste land or forest land and in the absence of such determination the Appellants cannot be said to have carried out illegal stone mining in forest land standing on Plot No.01 in Mouza-Lakhanpur.
47. Learned Senior Counsel further laid stress on the order of the Forest Settlement Officer dated 16.07.1962 (page 132 of the paper book) and submitted that the said order mentions that the land in Plot No.01 belonged to Shri Jamuna Ram and others, predecessors of the Appellant No.3, and it was found that the land was 'Parti' and 'Waste' land; there was no forest vegetation or fencing found during the local inspection. In the same order of 16.07.1962 the Forest Settlement Officer while deciding the Case No.285 of 22 Bengabad of 60-61 has noted the Bihar Government Notification dated 27.12.1952 notifying 49.90 acres of the land as forest land and thereafter has recorded a finding that the land in Plot No.01 was Raiyati land and cannot become Government property as envisaged in Section 29 of the Indian Forest Act, 1927, unless the said land is acquired under the Land Acquisition Act, 1894.
48. The repeated stand of the Appellants is that Plot No.01 is the Raiyati land purchased by Shri Jamuna Ram in 1935 and they have been in possession since 1951 and that the Appellant No.3 purchased 1.00 acre of land in Plot No.01 through two deeds in 2014 from the legal heirs of Shri Jamuna Ram. The case of the Appellants further is that till date no land acquisition notice has been received by the Appellants and the said land continues to be recorded in the name of Shri Jamuna Ram but thereafter the Appellant No.3 purchased 1.00 acres of the said Plot No.1 from the recorded owner.
49. Two points emerge for consideration, one, so far as the submission of the learned Senior Counsel for the Appellants is concerned that 1.00 acres of land in Plot No.01 is the ownership property of the Appellant No.3 having been purchased from the erstwhile recorded land holder Shri Jamuna Ram and his heirs and that the land in question has never been acquired by the Government, and second, that as per the findings recorded by the Forest Settlement Officer vide his order dated 16.07.1962, Plot No.01 is Raiyati land but 'Parti' and 'Waste' land and has never been determined to be a forest land nor has the portion of 1.00 acres purchased by the Appellant No.3 ever been determined as forest land or otherwise. 23
50. Reliance has been placed upon the judgment of the Hon'ble Supreme Court in (1962) 3 SCR 727: AIR 1966 Sc 1847 (State of Bihar & Ors. Vs. Lt. Col. K.S.R. Swami). This was also is a case under Bihar Private Forest Act, 1946 ('Act, 1946' for short), wherein the Governor in the said case had by notification ordered that until publication of a notification under Section 30 of the Act, 1946, all the rights to cut, collect and remove trees or class of trees in or from the forest shall cease to exist subject to conditions and specifications specified in the Second Schedule. The appeal before the Hon'ble Supreme Court was filed by the State of Bihar and the argument of the State was that words 'notification under Section 30 is published' includes a notification made under the proviso to that section and that subsequently when a notification under the proviso to Section 30 has been published all rights other than landlord's rights, in respect of which no claim has been preferred under Section 16 of the Act, 1946, and of the existence of which no knowledge has been acquired by an enquiry under Section 17 of the Act, 1946, shall be extinguished. It is also noted by the Hon'ble Supreme Court that it is clear that rights 'other than landlords' rights in respect of which no claim has been preferred under Section 16 or which have not been disclosed by enquiry under Section 17 were intended by the legislature to be extinguished only after the final notification is made.
51. In our opinion, the controversy in the present case is not with regard to the rights of the landlord or the Appellants herein over the Plot No.01 or acquisition of the said Plot by the State Government, since the Plot No.01 was never the subject matter of the Environmental Clearance granted to the Appellant No.3. The entire 24 claim of the Appellants that no acquisition proceedings have been held with respect to the Plot No.01 under the Land Acquisition Act as held by the Forest Settlement Officer and, therefore, the rights of the landlord and his erstwhile owner Jamuna Ram and his successor in interest the Appellant No.3 do not stand extinguished, are absolutely irrelevant for purposes of determining the controversy in the present case.
52. The Appellants have also placed reliance on the judgment of the Hon'ble Supreme Court in (2014) 3 SCC 430 (Godrej and Boyce Manufacturing Company Limited and Anr. Vs. State of Maharashtra & Ors.), which was a case in which notice had been issued under Section 35 (3) of the Indian Forest Act, 1927, and the question was whether mere issuance of notice under Section 35(3) of the Forest Act, 1927, was sufficient for any land having declared as 'Private Forest' within the meaning of expression as defined in Section 2
(f)(iii) of the Maharashtra Private Forest (Acquisition) Act, 1975, which was issued to Godrej in 1957 but no decision was taken thereon till 1975. The Hon'ble Supreme Court held that in view of the unusual long period of time of 18 years that had lapsed for enabling the State to take a decision on the show cause notice, the show cause notice must be treated as having become a dead letter. The question in that case was also that a large number of constructions such as - residential buildings, industrial buildings, commercial buildings, Bhabha Atomic Energy Complex and Employees State Insurance Scheme Hospital had come into existence over the so called forest land and, therefore, implementation of the orders/decisions of the State Government would compulsorily render homeless thousands of families, some of 25 whom may have invested considerable savings in the undisputed lands, as observed by the Hon'ble Supreme Court in para 75 of the said judgment.
53. In the light of the facts of the present case, we are of the view that judgments of the Hon'ble Supreme Court in the case of Godrej and Boyce Manufacturing Company Ltd. (Supra) and Lt. Col. K. S. R. Swami (Supra) have no application to the facts and peculiar circumstances of the present case.
54. The Appellants have also relied on the judgment of the Hon'ble Supreme Court in (2019) 2 SCC 727 (Jamila Begum (Dead) Through Legal Representatives Vs. Shami Mohd. (Dead) Through Legal Representatives & Ors.), that was a case with regard to validity/invalidity of a registered sale deed and the onus to prove the same in suit proceedings. The Hon'ble Supreme Court, inter- alia, held that a registered sale deed carried with it a presumption that it was validly executed and it is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law.
55. Next, the Appellants have relied on the judgment of the Hon'ble Supreme Court in (2022) 8 SCC 210 (Asset Reconstruction Company (India) Vs. S. P. Valayutham & Ors.).
56. In our opinion, the said judgments have absolutely no application to the facts of the present case, since this Tribunal is not examining right and title of the Appellants over Plot No.01 nor does it have jurisdiction to decide questions relating to right and title over Plot No.01 or any part thereof.
57. The question whether the Plot No.01 had ever been notified as a protected private forest is no longer in dispute in view of the 26 Notifications of 1950-1954 issued by the then State of Bihar declaring the said plot to be Private Protected Forest. We may, however, hasten to add that only 49.90 acres out of total of 81 acres of Plot No.01 was notified as Protected Private Forest. The only question to be examined is as to whether the Appellants have carried on illegal mining in Plot No.01 and have illegally encroached into the said Plot of land for the purpose of their stone mining activities.
58. From the documents on record and perusal of the Environmental Clearance dated 31.12.2014, we find that the Environmental Clearance was granted to the Appellant No.3, Arun Kumar Ladia, only for Plot Nos.4&5(P) (area 0.732 hectares) in Village-Lakhanpur, Block-Bengabad, District-Giridih, and not for carrying on mining operations in Plot No.01. The copy of the map which has been filed along with the affidavit of the Divisional Forest Officer, Giridih, dated 30.11.2023 at page no.383 of the paper book, shows Plot No.01 to be adjacent to Plot No.5 and also shows mining operations being carried on within the dotted area of Plot No.01. It is also mentioned on the map that illegal mining is being carried out on this plot over an area of 0.96 acres and mining debri (malba) has been dumped over an area of 0.86 acres and the total area forming part of Plot No.01 which has been encroached is 1.82 acres. Thus, it is irrefutably clear that the Project Proponent, Appellants, has encroached into the Plot No.01 and has carried out mining operations which is in clear violation of the Condition C (2) of the Environmental Clearance dated 31.12.2014. The contention of the Appellants that in the report of the Circle Officer, Bengabad, dated 26.11.2022 it was stated that mining operation by the Appellant 27 was confined to Plot Nos.4 and 5(P) and that Plot No.01 is being used as approach road to the mining lease area and that Plot No.01 shows that no mining was being carried on on Plot No.01 is completely misconceived. The letter of the Circle Officer, Bengabad, dated 26.11.2022 is filed at page no.235 of the paper book, and it clearly mentions that mining has been done of an area of 1.53 acres of Plot No.01, Khata No.1, area 81 acres which is recorded as Forest land. The contention of the learned Senior Counsel for the Appellants that the mining lease deed 2015, Part II Clause 3 permitted the Appellants to construct an approach road over Plot No.01 to reach Plot.4 and Plot No.5(P) is also not borne out from the record. The Mining Lease Deed Part II Clause 3 (page 46 of paper book) permits the lease holder i.e., the Appellants, to use or construct road only over the 'Ullikhit Bhoomi' i.e., land over which lease has been granted i.e., 4 and Plot No.5 (P), Mouza-Lakhanpur and not over Plot No.01. For the same reason the submission of the learned Senior Counsel for the Appellants that 1.00 acre of Plot No.01 was purchased by the Appellants from the recorded holder and that the approach road was constructed over this 1.00 acres does not hold much water, in as much as even ancillary activity such as construction of road over Plot No.01 to aid mining activity on Plot Nos.04 and 05 (P) would not be permissible under Condition C (2) of the Environmental Clearance.
59. The next leg of the argument of learned Senior Counsel for the Appellants is that the Environmental Clearance was granted in 2014 on the report of the then Divisional Forest Officer, Giridih, dated 22.12.2014 (page 83 of the paper book), clearly stating that the Plot Nos.4&5(P) in Mouza-Lakhanpur, Thana-Bengabad, was at 28 a distance of more than 500 meters from the notified forest and, therefore, the Appellants cannot be accused of having mislead the SEIAA, Jharkhand, into granting Environmental Clearance and in any case the decision to grant Environmental Clearance to the Project Proponent, Appellant No.3, was taken by the SEIAA, Jharkhand, correctly in its meeting held on 30.12.2014. It is further submitted by the learned Senior Counsel for the Appellants that, in fact, the stand of the SEIAA and the State Respondents in their affidavits itself is that Environmental Clearance was granted on the basis of the previous report of the Divisional Forest Officer dated 22.12.2014 which was wrong and the fact that subsequent letter of the Divisional Forest Officer, Giridih, dated 15.12.2022 (page 404 of the paper book), that Plot Nos.4&5(P) for which stone mining lease has been granted and Environmental Clearance has been granted to the Appellant No.3 is at Zero distance from the notified forest and less than 250 meters from the notified forest. How was the siting criteria of 250 meters arrived at by the Divisional Forest Officer, Giridih, has not been disclosed.
60. Mr. Sanjay Upadhyay, learned Senior Counsel for the Appellants further submitted that though the Plot No.01 was notified as forest/private protected forest vide Notification dated 1953 but out of the total area of 81 acres, only 49.90 acres was notified as private protected forest and out of the said plot, 1.00 acre of land has been purchased by the Appellant No.3 and there is nothing on record to show that this particular piece of land of 1.00 acres is forest land forming part of the total notified forest area of 49.90 acres.
29
61. We have sifted through the various documents on record as well as carefully considered the pleadings of the parties and we find that it is nowhere the stand of the State Respondents that 1.00 acre of land purchased by the Appellant No.3 in Plot No.01 forms part of the 49.90 acres of notified forest land out of the total area of 81 acres, therefore, the stand of the SEIAA, Jharkhand, in its impugned order dated 08.08.2023, based on the subsequent report of the Divisional Forest Officer, Giridih, dated 15.12.2022 that the stone quarry mine was situated at Zero meters from the notified forest, cannot be accepted. We have also noted hereinabove that the mining lease was granted to the Appellant No.3 over Plot Nos.4&5(P) but no document has been placed before us by the State Respondents to show that the siting criteria mandates that mining lease for a stone quarry cannot be granted within 250 meters from a forest land.
62. Mr. Ashok Prasad, learned Counsel appearing for Respondent No.2, SEIAA, Jharkhand, has passed on to the Court a Notification issued by the Jharkhand State Pollution Control Board on 07.12.2015 which mentions that the minimum distance of battery of the proposed industries/units for stone mines is 400 meters from forest/forest land (as notified earlier) and 250 meters from notified and demarcated forest/forest land (revised) and in the case of stone crusher 500 meters from forest/forest land (as notified earlier) and 250 meters from notified and demarcated forest/forest land (revised). The said Notification mentions that these guidelines vide Notification No.22 dated 22.03.2005 and Memo No.1163 dated 22.03.2005 have been revised on the recommendations of the NOC Expert Committee of the Jharkhand State Pollution Control Board 30 in its meetings held on 09.11.2015 and 02.12.2015 and thereafter the Notification No.B-12 dated 07.12.2015 has been issued.
63. Notification No.B-12 dated 07.12.2015 is extracted herein below:-
"Notification No.B-12 Ranchi, Date 07/12/15"
NOTIFICATION
On the basis of the recommendation of the NOC Expert Committee of the Jharkhand State Pollution Control Board (hereinafter called as "Board"), in its meeting held on 09.11.2015 and 02.12.21015, the guidelines of the minimum distance(s) of the land marks from the batter limit of the proposed unit(s) as notified in Annexure-II of the Notification No.22, dated 22.03.2005, Memo No.1163, dated 22.03.2005 of the Board are revised to the extent as follows:
Sl. Type of category Minimum distance of battery of the of Industries/ proposed Industries/units (in Units meters) Forest/Forest Notified and land (as demarcated notified Forest/Forest land earlier) (revised) 8. Stone Mines 400 250
11. Stone Crusher 500 250"
64. There is nothing on record to show that this notification issued by the Jharkhand State Pollution Control Board on 07.12.2015 has been accepted by the Forest Department or the State Government. It is an undisputed scientific fact that mining/quarry has adverse impact on the neighbouring forest ecosystem. At the same time, we appreciate that incidence of mineral is also site specific. Therefore, any prohibitory distance can be prescribed only after expert studies keeping the concept of sustainable development and precautionary principle into consideration. Therefore, we are of the firm view that the siting criteria has to be approved and notified by the Forest 31 Department or notified by the State Government. No such siting criteria issued by the Forest Department or the State Government has been placed before us. However, we make it clear that our findings recorded hereinabove with regard to the siting criteria will not preclude the Forest Department/State Government from undertaking an exercise in determining the siting criteria for establishment of stone mines and stone crushers with reference to the notified and demarcated forest/forest land. In case there are Rules or Guidelines in existence with regard to siting criteria issued by the Forest Department or State Government, the SEIAA, Jharkhand, shall consider the same with regard to the facts of the present case and pass fresh orders in this regard.
65. We, therefore, direct the Respondent No.1, State Respondent, Government of Jharkhand, to carry out the expert exercise for determination of siting criteria for stone quarries/mines with reference to notified and demarcated forest/forest land and complete the same within a period of two months and notify the siting criteria for establishment of stone mines and stone crushers with reference to the notified and demarcated forest/forest land consistent with existing laws, if not already in existence.
66. However, in view of the letter of the Circle Officer dated 26.11.2022, it is confirmed that the Appellants have carried out illegal mining and dumping activities over Plot No.01 of Lakhanpur Mouza for which no Environmental Clearance had been granted by the SEIAA, Jharkhand and, therefore, prima facie, the Appellants have violated the provisions of Condition C (2) of the Environmental Clearance dated 31.12.2014. This aspect of the matter has not been considered by the SEIAA, Jharkhand, on the ground that EIA 32 Notification, 2006, does not give any mandate to SEIAA to take any decision on the facts given in paras 10 and 11 of its order dated 08.08.2023. In paras 10 and 11 of the order, the only stand of the Project Proponent was that the total area of Plot No.01 is 81 acres while the notified area as Protected Forest is only 49.90 acres and that the Appellant No.3, Shri Arun Kumar Ladia, is the present Raiyat of 1.00 acres of land over Plot No.01 via registered sale deed dated 24.11.2014 and if the Divisional Forest Officer is aggrieved, he is free to move a title suit or Jharkhand Public Land Encroachment proceedings against the Project Proponent before the competent court.
67. We find that the SEIAA, Jharkhand, has completely overlooked the fact that though the question of determination of right and title over Plot No.01 is beyond the jurisdiction of the SEIAA, Jharkhand, the facts stand established from the documents on record that even though the Appellant No.3 may be the owner of 1.00 acres of land over Plot No.01, he could not mine or construct approach road for mining purposes on the same without Environmental Clearance and that the Environmental Clearance dated 31.12.2014 was only in respect of Plot Nos.4 & 5 (P) i.e., adjoining plots, and having carried out illegal mining and dumping activities over any part of Plot No.01, the Appellants were clearly acting in violation of the provisions of the Indian Forest Act, 1927, and the offence has also been booked against them. This also violates the Condition C (2) of the Environmental Clearance dated 31.12.2014 and this aspect of the matter was within the jurisdiction of the SEIAA, Jharkhand, to consider and pass appropriate orders thereon. 33
68. We, therefore, allow the present Appeal and set aside the order of the SEIAA, Jharkhand, dated 08.08.2023 and direct the SEIAA, Jharkhand, to reconsider the matter and pass fresh order in the light of the observations made hereinabove within a period of two months.
69. I.As. if any, stand disposed of accordingly.
70. There shall be no order as to costs.
.....................................
B. Amit Sthalekar, JM ............................................. Dr. Arun Kumar Verma, EM July 30, 2024, Appeal No.24/2023/EZ (I.A. No.50/2024/EZ) AK 34