National Green Tribunal
Budhsen Rathour vs Union Of India on 9 March, 2022
Item No. 05
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Appeal No. 06/2020
(I.A. No. 67/2020)
(I.A. No. 68/2020)
Bhudsen Rathore Appellant(s)
Versus
Union of India & Ors. Respondent(s)
Date of completion of hearing and reserving of order : 21.02.2022
Date of uploading of order on the website : 09.03.2022
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Appellant (s): Mr. Saurabh Sharma, Adv.
For Respondent(s) : Mr. Sachin K. Verma, Adv.
Ms. Parul Bhadoria, Adv.
Mr. Deepesh Joshi, Adv.
Mr. Om Shankar Shrivastava, Adv.
ORDER
Sr. Issues Page no.
No
A GROUND OF APPEAL 2-3
B BRIEF FACTS 3-4
C SUMMARY OF THE PROJECT 4-5
D DESCRIPTION OF THE MINE FIELD 5-6
E MINING TECHNOLOGY & PROCESS 6-7
DESCRIPTION
F PROPOSED SCHEDULE FOR APPROVAL & 7
IMPLEMENTATION
G INFRASTRUCTURE 7-10
H PROCEEDINGS BEFORE THE TRIBUNAL 10-29
I VERSION OF THE APPELLANT 29-34
J LOCUS STANDI 34-49
K EAC AND CONSIDERATION OF OBJECTIONS 49-58
L RECOMMENDATIONS: 58-63
M STANDARD EC CONDITIONS FOR COAL 63-78
MINING PROJECT (OPENCAST MINING)
N PUBLIC HEARING 78-104
O CONCLUSIONS 105-109
1
A. GROUND OF APPEAL
1. The appellant has challenged the grant of Environmental Clearance dated 20.03.2020 for expansion of from 17.50 MTPA to 25 MTPA which is situated in District Singrauli (Madhya Pradesh) and District Sonebhadra (Uttar Pradesh). The EIA is prepared on the basis of one season data collected from l5th March to l5th June, 2016. However, the terms of Reference for the preparation of the EIA report was issued by MoEF&CC by a letter dated 1st February, 2018. The Public Hearing was held on 8th February 2019 at Singrauli, Madhya Pradesh. The proposal came before the Expert Appraisal Committee for expansion of production capacity from 17.5 MTPA to 25 MTPA and expansion of mine area mine from 1752 Ha to 2390.722 Ha. The Perusal of the minutes of EAC meeting clearly shows that the project has been recommended without any application of mind and detailed discussion on the Project. The Appeal is been filed on the following among other issues:-
Information provided by Project Proponent in Form 1 is false/misleading and deliberate suppression of material information.
Submission of inadequate, deficient and incomplete EIA by the Project Proponent.
Obsolete base line data used in ambient air quality data.
False & misleading ambient air quality given in the EIA.
EIA overlooks the data of Madhya Pradesh Pollution control Board on ambient air quality.
The Project Proponent has used outdated Air Model for air modelling.
The EAC has failed to look at the adverse impact of Blasting, Noise, Vibration and Air Pollution due to mining on Villages in Core Zone of the Dudhichua Mine.
Impact of mining on Hydrology, modification of natural drainage and lack of detailed Water Balance not analysed.
Issues in Public Hearing not duly scrutinized by the EAC.2
No Public Hearing was conducted in affected areas in Uttar Pradesh (District Sonebhadra).
Public Hearing has been done on the basis of an incomplete EIA Report.
Final forest clearance is yet to be obtained.
No study on the existing flora and fauna in the study area.
Cumulative impact assessment study and carrying capacity study have not been done.
EAC failed to apply it's mind.
B. BRIEF FACTS
2. The brief facts giving rise to the appeal are that earlier, the project was granted Environmental Clearance vide letter dated 28th February, 2008 for 12.05 MTPA capacity in project area of 1752 ha. Subsequently, EC for the expansion of the project from 12.5 MTPA to 15.5 MTPA within the same project area was granted by the Ministry vide letter dated l0thDecember, 2008 based on the public hearing conducted in Sonebhadra U.P. on 10th October. 2006 and Singrauli, M.P. on 20th January, 2007. Ministry vide letter dated 01st February, 2018 has granted Terms of Reference (ToR) to the project for expansion of Dudhichua opencast coal Mine project from 15.5 MTPA to 25 MTPA in an area of 2390.722 ha located in Tehsil Waidhan, District Singrauli, M.P. and Tehsil Dudhi, District Sonebhdra, U.P. In the meantime, project proponent submitted the proposal of expansion from 15.5 MTPA to 17.5 MTPA in the existing area of 1752 ha as per the provisions contained in Para 7(ii) of the EIA Notification, 2006 based on Ministry's office Memorandum dared 15th September, 2017. Based on recommendation of EAC held on l3-14 December, 2018, Ministry granted expansion in capacity vide its letter dated 26th December, 2019.
3. Thereafter, the project proponent had submitted the proposal for expansion of 17.5 to 25 MTPA in an area of 2390.722 ha based on ToR granted on 01st February, 2018 to conduct public hearing for the project site in District 3 Singrauli (MP) and other terms and conditions therein. Accordingly, Public hearing for the project of 25 MTPA capacity in an ML area of 2390.722 ha was conducted on 8th February, 2019 at Virendra Community Hall, Dudhichua Sector- A Colony, P.O. Jayant, Singrauli, Madhya Pradesh.
Issues related to pollution due to stored mine water, higher fluoride concentration, R & R Compensation, water pollution, air pollution due to transportation of coal, desiliting of ballia nallah, blasting during mining etc. were raised during Public Hearing. The proposal was considered and deliberated in detail by the sectoral (Thermal & Coal Mining Sector) in its 53rd meeting held on 20th February, 2020. The committee recommended the proposal for grant of Environment Clearance with specific conditions for environmental safeguards therein. Based on recommendations of the EAC, the said expansion project from 17.50 MTPA to 25.00 MTPA was accorded environmental clearance by the Ministry on 20th March, 2020.Thus this appeal.
C. SUMMARY OF THE PROJECT
4. Due to increase demand of power grade coal by Thermal Power stations, the Ministry of Coal has given target to NCL of 100 Mt for the year 2018-2019.
So to increase the coal production from Dudhichua OC, it is proposed to increase the lease area and production from existing 15.50 MTPA to peak 25.00 MTPA in future. For obtaining Environmental Clearance from MoEF & CC as per EIA Notification-2006 for Dudhichua Expansion, a Final EIA-EMP Report has been prepared, as per TOR issued by MoEF & CC vide letter no.
J-11015/381/2008-I.A.II (M) (M) dated 01st February, 2018 and Public Hearing details.
5. This is an expansion for existing Dudhichua opencast coal mining project of Northern Coalfields Limited. The proposed production capacity is to be enhanced to peak 25.00 MTPA coal with a corresponding peak OB removal of 125.00 Mm3 per year. Ensuing the projected demand of coal for Thermal Power Plants in the country, it is necessary to expand the capacity of the 4 present Dudhichua Opencast Project. The demand on coal on NCL will increase to 116.50 Mt by the year 2019-20.
Location: The Dudhichua opencast project of Northern Coalfields Limited (NCL) is located in Singrauli Coalfields which is in Sonebhadra district of U.P. state and Singrauli district of M.P. state. It falls within the latitude.
24°07'15.54" N to 24°10'56.00" N and Longitude 82°39'49.18" E to 82°43'19.75" E (Topo-sheet No. 63L/12 of the Survey of India on 1:50000 (1976)). The nearest railway station, Shaktinagar is at a distance of about 5 km and approachable by all-weather metalled road. The project is at a distance of 63 km by road from Renukut in UP and 18 km from Waidhan in MP by Ranchi-Rewa highway.
D. DESCRIPTION OF THE MINE FIELD Dudhichua Opencast Block stands out on a plateau above plains on its south-east part of Singarauli coalfield. The average elevation at the foot of the plateau in 325 m above MSL. The highest elevation reaches about 504 m. the plateau is defined by a steep escarpment (facing south-west) rising from the elevation of 320-430 m. the escarpment is characterized by thick growth of vegetation rolled-boulders and is dissected by numerous small seasonal streams. The area on the top of the plateau is undulating with elevation varying from 375-430 m with occasional high hills rising to 504 m.
Mineable reserves: The total mineable coal reserve available as on 01.04.2018 is 304.51 Mt alongwith 1440.92 Mm3 of OBR with average stripping ratio of 4.73 m3/t. there are Turra, pirewa Bottom and Purewa Top Seams. Dudhichua opencast Project has produced 254.62 Mt. of coal till 31st March, 2018.
Geology of Dudhichua block: The geological data given in this report are as per Geological Reports on Dudhichua Block prepared by CMPDI. There are three coal seams occurring in ascending order -viz Turra (11.30-24.35), Purewa Bottom (5.75-15.20m), Purewa Top (1 95-9.9Om) proposed to be mined, The beds have a corresponding centripetal dip .The amount of dip in 5 general is about 2 to 3 degree However, higher dip of about 8'-13' have been observed in the eastern part and western part of the basin.
The grade based on GCV for Turra seam varies mainly from G-8 to G-12 and that for Purewa Top & Bottom seam from G-9 lo G-11. The overall grade varies mainly from GB to G11 and average product mix grade of all the three seams is G10.
E. MINING TECHNOLOGY & PROCESS DESCRIPTION Dudhichua OCP has been working for last 34 years with combined system of mining viz' Dragline and shovel-dumper system. The existing system has been proposed to be continued with up-gradation of equipment size for achieving higher production level.
The OB removal will be done by dragline side-casting and shovel-dumper combination. The blasted material will be transported to internal dumps through dumper transport. The coal after blasting will be loaded and hauled to CHP by dumpers from where after crushing the ROM coal, it will be transported to silo point connected to MGR track through conveyor belts for loading into the wagon.
Programme of excavation: Dudhichua Expansion OCP has been planned to produce total 304.51 Mt coal & 1440.92 Mm3 O.B from 2018-19 to 17 yrs.
The Expansion project has been planned for normative production of 20 Mtpa and peak production of 25 Mtpa. The calendar Plan of excavation is given in CH-II.
Mining Details: Stripping ratio (mineral in tonners to over burden in m3)-
4.73 m3/t, Ultimate working depth-310 m, Present working depth of existing mine-218 m (as on 31.01.2018), Thickness of top soil is restricted to 3m only, over a major part of the area, Thickness of overburden varies 27.08 m-
210.00m.
Mining Plan & mine Life: Height and width of the bench in coal seam: 10- 15m and 45m. Height of the O.B bench for Dragline varies from 0m and cut 6 width is 75m. In case of Shovel-Dumper O B height is 15-18m and width is 57-63m. The slope of each bench is proposed as 700 in OB and 800 in coal.
But overall running slope in working faces are is l5-18° and 35-40° at the time of closure of the mine. The estimated life of the project 17 Years from 2018-19.
Drilling & blasting operations: The blasting is required in all coal & OB benches for loosening the strata. Drills of 311 mm (4 nos), 250 mm (25 nos.) and 160 mm (12 nos.) have been provided. The amount of secondary blasting is about as 4 % of the total volume of explosives.
OB/Waste disposal techniques: The total volume of OB to be removed in expansion will be dumped internally and 134.00 Mm3 has already been dumped in external dump and reclaimed technically and biologically.
F. PROPOSED SCHEDULE FOR APPROVAL & IMPLEMENTATION The EPR has been approved by Coal India Board vide letter no. CIL:XI(D):
04112:2017:19615 dated 13th December, 2017. The proposed expansion target of 20.00 MTPA is likely to be achieved by 2O2O-21. The present proposal is for environmental clearance for a coal production from 15.50 MTPA to 25.00 MTPA.
G. INFRASTRUCTURE
1. Coal Handling Plant (CHP): Existing CHP of 10 Mtpa has already been constructed and is in operation/ Existing CHP broadly has the facilities of three number of receiving and crushing complex, two number of bunkers for storage and reclamation, two silos with rapid loading system and associated conveyor system.
The EPR for Dudhichua OCP for a rated capacity of 20 MTPA envisaged a separate new coal handling system of 10 MTPA capacity which comprising of 2 nos. of semi mobile Primary sizer and 2 Nos. secondary sizers of product size of (-) 100 mm two in each Section to be installed in East and West 7 Section coal with associated conveying and dispatch system has been envisaged. Total handling capacity of the CHP including existing and proposed will be 20 Mtpa, which will cater the target coal of 20 MTPA.
2. Workshop : At present Dudhichua Opencast project has a full-fledged Workshop and Project store having facilities to cater the repair and maintenance needs of HEMM, mining, electrical & mechanical equipment etc. deployed in Dudhichua OCP (10 Mtpa).
For expansion of the Project from 10 Mtpa to 20 Mtpa coal production, EPR has envisaged 52 nos. RD 100 T & 160 Nos. RD 190-210T. Existing RD 85 T and rd 120 T has been envisaged for replacement in equivalent numbers of RD 100T for coal transportation & RD 190-210 T for OB removal respectively.
3. Railway Siding : The crushed coal (-1 00) from the West section coal of Dudhichua OCP will be dispatched by PM/MGR through existing phase-II silo and East section coal of Dudhichhua OCP will be dispatched by PR/MGR through proposed silo. For East section coal of 5 Mtpa incremental 4 to 5 rakes of wagon will have to be loaded every day. The loading has been envisaged round the clock in all the three shifts as per day by one loading point with RLS @5500 TPH with 3000 T silo. The proposed silo will be installed near the existing phase-I silo and three additional lines will be envisaged for proposed Silo. The proposed line will be connected with existing MGR/PR line.
Necessary provisions for proposed interconnection and accommodation of full empty receiving and after load line has been made in EPR of Dudhichua OCP (20 Mtpa).
4. Power supply arrangement: Dudhichua OCP is getting power at 3-3KV by double circuit transmission line from 2X40 MVA, 132/33 KV Madhauli Substation of NCL and township is getting power from Nawanagar Substation of MPEB. There are three-sub-stations- in Dudhichua project viz OB West , sub-station, OB East sub-station and coal substation. The EPR envisaged the 8 installation of additional transformers in the existing Sub-stations to cater the need of expansion Project.
Considering the prevailing Practice in - NCL for OB outsourcing all the equipment used are diesel-driven Therefore no additional electrical power is required for diesel driven HEMM for OB outsourcing.
Existing CHP is getting power from 2x10 MVA coal sub-Station. At 20 Mtpa stage,CHP load will increase. A coal subs-station will be constructed with a capacity of 1X10 MVA to cope up with the additional toad of CHP. This CHP will get power from coal substations.
5. Other facilities: Existing service buildings shall remain in use for the proposed EPR. However, additional provision for expansion of GM office along with time and security office and boundary wall has been made in the office complex. Additional provision for fund for welfare buildings such as Post Office, Bank, Shopping Centre, Staff Rest House, School, Bus shed, Garage, Cycle Shed, Open Market, Community Centre/Kalyan Mandap, Stadium/Play ground with suitable boundary walls etc. has been made in colony area.
Risk of Technology Failure: Considering the geo-mining conditions of the block, the combined system of mining with dragline and shovel dumper combination is being used for, exploration of coal. This technology is a proven and tested technology. Hence the present technology used for opencast mining at Dudhichua Expn. OCP is very safe and no risk of technological failure.
11.3 Description of the environment Topography, drainage & Climate:
Dudhichua Opencast Block stands out on a plateau above plains on its southeast part of Singrauli coalfield. The average elevation at the foot of the plateau is 325 m above MSL. The highest elevation reaches about 504 m. The 9 plateau is defined by a steep escarpment (facing south -west) rising from the elevation of 320-430m.
Drainage: The most important stream in around is Ballia Nalla. The drainage of the area is controlled by seasonal stream which discharge into Ballia Nalla, which ultimately drains into Govind Ballabh Pant Sagar in the south.
Similarly, towards north, the drainage is through seasonal streams which ultimately join Bijul Nalla.
Climate: The climate of the area is tropical. The- summer months are severe and prevail from March to-June. Generally the minimum and maximum temperature during summer are 21˚C and 48˚C respectively' .The temperature in winter during the month of November to February varies between 4˚C to 21˚C. The average annual rainfall is about 1200 mm out of which about 88% precipitation is during rainy season from June to September only.
H. PROCEEDINGS BEFORE THE TRIBUNAL
6. The matter was taken up by this Tribunal and notices were issued to the Respondents. In compliance thereof, the respondents have filed their reply which is on record. We have heard learned counsel for the parties and perused the record. Before proceedings towards the contention raised by the parties, we are of the view to reproduce the order in challenge dated 20.03.2020, which is as follows:
"2. The Ministry of Environment, Forest and Climate Change has considered the proposal for Environment Clearance to the Expansion of Dudhichua Opencast Coal Mining Project from 17.5 to 25 MTPA of M/s Northern Coalfields Limited in mine lease area of 2390.722 ha located at Tehsil Waidhan District Singrauli (MP) and Tehsil Dudhi, District Sonebhadra (UP).
3. The proposal was considered by the Expert Appraisal Committee (EAC) in the Ministry for Thermal & Coal Mining Sector in its 53rd meeting held during 20th February, 2020. The details of the project, as per the documents submitted by the project proponent, and also as informed during the meeting, are reported to be as under:-10
(i) The project area is covered under Survey of India Topo Sheet No G44W12 and is bounded by the geographical coordinates ranging from 24°9'12.23"N to 24°9'20.28"N and Longitude: 82°41'3.27"E to 82°40'2.3"E.
(ii) Coal linkage of the project is proposed for Basket linkage mine for pit head power station of NTPC, UPRVUNL in Singrauli Coalfields and Power station in Western/ Northern India through their own MGR system and other consumers by Public Railway.
(iii) Joint venture cartel has been formed- NIL.
(iv) Project does not fall in the Critically Polluted Area (CPA).
(v) Employment generation 3350 nos (as per EPR)
(vi) The project is reported to be beneficial in terms of: The project will be able to supply planned quantity of coal to pit head power stations of NTPC, UPRVUNL in Singrauli Coalfields and power stations in western/ Northern India through their own MGR system and other consumers by public railway system thus meeting the energy needs of the country.
(vii) ToR was granted by Ministry on 1st February, 2018.
(viii) Earlier, the environment clearance to the project was obtained under EIA Notification vide Ministry's letter No J-11015/381/2008-
IA.II(M) dated:26/12/2019 for 17.5 MTPA in mine lease area of 1752 Ha.
(ix) Total mining lease area as per block allotment is 2390.722 Ha. Mining Plan (Including Progressive Mine Closure Plan) has been approved by the NCL board on 25.11.2017.
(x) The land usage pattern of the project is as follows:
Pre- mining land use details (Area in Ha.)
Land Use Within Outside ML Total
ML Area Area
Sr.
No.
1 Agricultural Land 806.913 - 806.913
2 Forest Land 1217.589 - 1217.589
3 Wasteland - - -
4 Grazing Land - - -
5 Surface Water - - -
Bodies
6 Settlements - - -
7 Others (Government 366.22 - 366.22
Land)
Total Project Area 2390.722 - 2390.722
11
Post Mining
S. Land use Land use (ha)
No. Plantation Water Public Undist Total
Body Use urbed
1 External 152 - - - 152
OB Dump
2 Top Soil Top Soil has been used immediately in reclamation of
dumps.
Dump
3 Excavation 1316 324 - - 1640
4 Roads - - -
174 174
5 Built-up - - -
Area
6 Green Belt 62.722 - - - 62.722
7 Undisturbe 164 - - - 164
d Area
8 Safety Zone
Rationalizati
on Area
9 Diversion - - - - -
Nala /
Canal
10 Water Body - - - - -
11 Staff Colony - - 198 - 198
Total Area 1694.722 324.00 372.00 - 2390.722
(xi) Total geological reserve reported in the mine lease area is 361.34 MT with 320.01 MT mineable reserves. Out of total mineable reserve of 320.01 MT, 288.009 MT are available for extraction. Percent of extraction is 90%.
(xii) 03 seams with thickness ranging from 1.95m -- 25.75m are workable. Grade of coal is G-8 to G- 12, stripping ratio 4.61 m3/t, while gradient is 20 to 30.
(xiii)Method of mining operations envisages by Combination of Dragline and Shovel- Dumper method.
(xiv) Life of mine is 17 years.
(xv). The project has two external OB dumps in an area of 152 Ha with 90m height and 134 Mm3 of OB. Two Internal OB dumps in an area of 1316 Ha with 1483.33 Mm3 of OB are envisaged in the project.
(xvi) Total quarry area is 1640 Ha out of which backfilling done in 1316 Ha while final mine void will be created in an area of 324 Ha with a depth of 30m to 40m. Backfilled quarry area of 1316 Ha shall be reclaimed 12 with plantation, Final mine void will be converted into water body.
(xvii) Transportation of coal has been proposed by Rear bumpers in mine pit head, from surface to siding by Coal Handling Plant (CHP) and at sidings to loading by Silo.
(xviii) Reclamation Plan in an area of 1694.722 Ha, comprising of 152 Ha of external dump, 1316 Ha of internal dump and 62.722 Ha of green belt. In addition to this, an area of 164 Ha, included in the safety zone/rationalization area, has also been proposed for green belt development.
(xix) 1217.589 Ha of forest land has been reported to be involved in the project. Approval under the Forest (Conservation) Act, 1980 for diversion of forest land for non-forestry purposes has been obtained as follows:-
Area (Ha) Stage-1 FC issued Validity Period
vide letter no & of FC
date
555.00 (UP 8-298/87-FC dated Valid Upto
State) 30.07.2020
30.07.1990
194.78 (MP Letter No.8-13/93-FC Valid Upto
State) 17.11.2035
(Vol-III) dated
17.11.2015
The remaining forestland of 467.809Ha has Stage I clearance and Stage-II clearance of forest land is under process.
(xx) No National Parks, Wildlife Sanctuaries and Eco- Sensitive Zones have been reported with 10 km boundary of the project.
(xxi) The ground water level has been reported to be varying between 1.18m (2017) to 21.50m (2019) during pre-monsoon and between 0.55m (2019) to 18.70m (2018) during post-monsoon. Total water requirement for the project is 8183m3/d.
(xxii) Application for obtaining the approval of the Central Ground Water Authority:- NOC granted vide NOC No. CHWA/NOC/MIN/ORIG/2019/6993 by CGWA.
(xxiii) Public nearing for the project of 25 MTPA capacity in an area of 2390.722 Ha was conducted on 08.02.2019 at Virendra Community Hall, Dudhichua Sector-A Colony, 13 Singrauli. Major issues raised in the public hearing and Appropriate action to address the issues raised in the Public Hearing have already been taken/proposed to be taken.
(xxiv) Consent to operate for the existing capacity was obtained from the State PCB on 29.01.2020 and is valid till 31.12.2020.
(xxv) Regular monitoring of ambient air quality is being carried out on fortnightly basis. The documented report is submitted to SPCB and also to MoEF&CC along with half yearly EC compliance report. In general, the results of ambient air quality monitoring data were found within prescribed limits except few aberrations which can be attributed to the specific local conditions during the day of sampling.
(xxvi) No court cases, violation cases are pending against the project of the PP.
(xxvii) The project does not involve violation of the EIA Notification, 2006 and amendment issued there under. The coal production from the mine was started from the year 1987 onwards.
The project involves 580 nos. project affected families. R&R of the PAPs will be done as per R&R policy of Coal India Ltd.
Total cost of the project is Rs.271837 lakhs. Cost of production is Rs. 850.27/- per tonne (2018-19), CSR cost is 2% of the avg. net profit of the company for three Immediate proceeding financial year or Rs.2 per tonne whichever is higher, R&R cost is Rs.29.09 crores.
Environment management Cost is Rs. 16152.78 Lakhs (As per EPR).
Consent to operate (CTO) was obtained from the State Pollution Control Board on 29.01.2020 and is valid till 31.12.2020.
14A. Specific Conditions: -
i. Validity of EC is life of the mine or 30 years whichever is earlier as per EIA Notification, 2006.
ii. The project proponent shall obtain Consent to establish from the State Pollution Control Boards for the proposed peak capacity of 20 MTPA (Normative)/ 25 MTPA(Peak) prior to commencement of the increased production.
iii. Third party monitoring (by NEERI/CIMFR/IIT) for air quality shall be carried out at identified locations, both ambient and the process area, to arrive at impact of the proposed expansion. The results along with the recommendation shall be presented before the EAC to assess the efficacy and adequacy of pollution control measures.
iv. Transportation of coal from Coal Handling Plant shall be through covered trucks.
v. To control the production of dust at source, the crusher and in-pit belt conveyors shall be provided with mist type sprinklers.
vi. Mitigating measures shall be undertaken to control dust and other fugitive emissions all along the roads by providing sufficient water sprinklers. Adequate corrective measures shall be undertaken to control dust emissions, which would include mechanized sweeping, water sprinkling/mist spraying on haul roads and loading sites, long range misting/fogging arrangement, wind barrier wall and vertical greenery system, green belt, dust suppression arrangement at loading and unloading points, etc. vii. Continuous monitoring of occupational safety and other health hazards, and the corrective actions need to be ensured. viii. Persons of nearby villages shall be given training on livelihood and skill development to make them employable. ix. Thick green belt of adequate width at the final boundary in the down wind direction of the project site shall be developed to mitigate/check the dust pollution.
x. Mechanism for treating stored mine water shall be developed to avoid any ground and surface water contamination xi. Mining shall be carried out only by surface miners for the expansion project and siIo loading through in-pit conveyor should be installed to avoid road transportation in 2 years. xii. Ballia, Bijul and other Nallahs linked with this project shall be 15 cleaned quarterly to avoid deposition of silts. xiii. Efforts shall be made for utilizing alternate sources of surface water, abandoned mines or else whatsoever and thus minimizing the dependability on a single source. xiv. The company shall obtain approval of CGWA for use of groundwater for mining operations at its enhanced capacity of 20 MTPA (Normative)/ 25 MTPA(Pea k).
xv. Continuous monitoring of occupational safety and other health hazards, and the corrective actions need to be ensured. xvi. A third party assessment of EC compliance shall be undertaken once in three years through agency like ICFRI /NEERI/IIT or any other expert agency identified by the Ministry.
xvii. Active OB dump should not be kept barren/open and should be covered by temporary grass to avoid air born of particles xviii. Permission of diversion of nallah from concerned statutory authority (if any) xix. Compliance of the non-compliance/partial compliance conditions certified by Regional Office, Bhopal vide its Letter No. 3-22/2009(ENV)/807 dated 24th October, 2018. The PP shall take all the mitigation measures and the Action taken report shall be submit the Regional office of the MoEFCC.
xx. Project proponent to plant 150,000 nos. of native trees with broad leaves along the villages namely Dudhichua, Chilkatand, Karwari and Madhauli in three years and along transportation route to prevent the effect of air pollution. After completion of tree plantation, number of trees shall be duly endorsed from District Forest Officer. xxi. The activities and fund provisions for CER shall be made as per the guidelines issued by the ministry regarding CER on 1st May, 2018, xxii. Project Proponent shall obtain blasting permission from DGMS for conducting mining operation near villages and also explore deployment of rock breakers of suitable capacity in the project to avoid blasting very near to villages. There shall be no damages caused to habitation/structures due to blasting activity. xxiii. The Project Proponent shall complies with all the statutory requirements and judgment of Hon'ble 16 Supreme Court dated the 2nd August 2017 in Writ Petition (Civil) No. 114 of 2014 in the matter of Common Cause versus Union of India and Ors. State Government shall ensure that the entire compensation levied, if any, for illegal ilning paid by the Project Proponent through their respective Department in strict compliance of judgment of Hon'ble Supreme Court dated the 2nd August 2017 in Writ Petition (Civil) No. 114 of 2014 in the matter of Common Cause versus Union of India and Ors.
xxiv. Project Proponent shall obtain the necessary prior permission from the Central Ground Water Authority (CGWA) in case of intersecting the Ground water table. The intersecting ground water table can only be commence after conducting detailed hydrogeological study and necessary permission from the CGWA, The Report on six monthly basis on changes in Ground water level and quality shall be submitted to the Regional Office of the Ministry, CGWA and State Pollution Control Board xxv. Proponent shall appoint an Occupational health Specialist for Regular and Periodical medical examination of the workers engaged in the Project and maintain records accordingly; also Occupational health check-ups for workers having some ailments like BP, diabetes, habitual smoking, etc. shall be undertaken once in six months and necessary remedial/preventive measures taken accordingly. The Recommendations of National Institute for ensuring good occupational environment for mine workers shall be implemented; the prevention measure for burns, malaria and provision of antisnake venom including all other paramedical safeguards may be ensured before initiating the mining activities.
xxvi. Probject Proponent shall follow the mitigation measures provided in Office Memorandum No. Z-11013/57/2014- IA.II (M), dated 29th October, 2014, titled "Impact of mining activities on Habitations-issues related to the mining Projects wherein Habitations and villages are the part of mine lease areas or Habitations and villages are surrounded by the mine lease area". xxvii. The illumination and sound at night at project sites 17 disturb the villages in respect of both human and animal population. Consequent sleeping disorders and stress may affect the health in the villages located close to mining operations. Habitations have a right for darkness and minimal noise levels at night. PPs must ensure that the biological clock of the villages is not disturbed; by orienting the floodlights/ masks away from the villagers and keeping the noise levels well within the prescribed limits for day light/night hours. xxviii. The project proponent shall take all precautionary measures during mining operation for conservation and protection of endangered fauna, if any, spotted in the study area. Action plan for conservation of flora and fauna shall be prepared and implemented in consultation with the State Forest and Wildlife Department. A copy of action plan shall be submitted to the Ministry of Environment, Forest and Climate Change and its Regional Office.
xxix. Hon'ble Supreme Court in an Writ Petition(s) Civil No. 114/2014, Common Cause vs Union of India & Ors vide its judgement dated 8th January, 2020 has directed the Union of India to impose a condition in the mining lease and a similar condition in the environmental clearance and the mining plan to the effect that the mining lease folders shall, after Ceasing mining operations, undertake regrassing the mining area and any other area which may have been disturbed due to their mining activities and restore the land to a condition which is fit for growth of fodder, flora, fauna etc. Compliance of this condition after the mining g activity is over at the cost of the mining lease holders/Project Proponent". The implementation report of the above said condition shall be sent to the Regional Office of the MoEFCC.
xxx. Conservation measures and future strategy proposed in Comprehensive Hydro geological Report shall be complied by project proponent.
xxxi. PP shall comply all the mitigation measures and restoration strategies recommended by IIT (ISM) Dhanbad, i.e, for Catchment area and channel treatment, Habitat improvement through enrichment plantation, a thick green belt (30 m width) 18 along the outer periphery of the OCP etc given in study or IRR B. Additional Specific as the area falls under Severely Polluted Area (SPAs) xxxii. CTE/CTO for the project shall be obtained from the SPCB as required under the Air (Prevention and Control| of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) act, 1974 and the SPCB shall follow the mechanism/protocol issued by the Ministry vide letter no. Q-16017/38/20-18-CPA dated 24th December, 2019 while issuing the CTE/CTO for the project, for improvement of environmental quality in the area.
xxxiii. The green belt of at least 5-10 m width shall be
developed in more than 40% ( in place of EAC
recommended 33%) of the total project area, mainly along the plant periphery, in downward wind direction, and along road sides etc. Selection of plant species shall be as per the CPCB guidelines in consultation with the State Forest Department.
xxxiv. In addition, the project proponent shall develop greenbelt outside the plant premises such as avenue plantation, plantation in vacant areas, social forestry etc. xxxv. Monitoring of compliance of EC conditions may be submitted with third party audit every year.
xxxvi. The percentage the CER may be atleast 1.5 times the
amount given in the OM dated 01 May, 2018
recommended by the EAC and item-wise details along with time bound action plan shall be prepared and submitted to the Ministry's Regional Office.
C. General Conditions
(a) Statutory compliance
(i) The project proponent shall obtain forest clearance under the provisions of Forest (Conservation) Act, 1986, in case of the diversion of forest land for non-forest purpose involved in the project.
(ii) The project proponent shall obtain clearance from the National Board for Wildlife, if applicable.
(iii) The project proponent shall prepare a Site-Specific Conservation Plan / Wildlife Management Plan and 19 approved by the Chief Wildlife Warden. The recommendations of the approved Site-Specific Conservation Plan/Wildlife Management Plan shall be implemented in consultation with the State Forest Department. The implementation report shall be furnished along with the six-monthly compliance report (in case of the presence of schedule-I species in the study area).
(iv) The project proponent shall obtain Consent to Establish/Operate under the provisions of Air (Prevention & Control of Pollution) Act, 1981 and the Water (Prevention & Control of Pollution) Act, 1974 from the concerned State pollution Control Board/ Committee.
(v) The project proponent shall obtain the necessary permission from the Central Ground Water Authority.
(vi) Solid/hazardous waste generated in the mines needs to addressed in accordance to the Solid Waste Management Rules, 2016/Hazardous & Other Waste Management Rules, 2016
(b) Air quality monitoring and preservation
(i) Continuous ambient air quality monitoring stations as prescribed in the statue be established in the core zone as well as in the buffer zone for monitoring of pollutants, namely PM10, PM,;, SO, and NON. Location of the stations shall be decided based on the meteorological data, topographical features and environmentally and ecologically sensitive targets in consultation with the State Pollution Control Board. Online ambient air quality monitoring stations may also be installed in addition to the regular monitoring stations as per the requirement and/or in consultation with the SPCB. Monitoring of heavy metals such as Hg, As, Ni, Cd, Cr, etc to be carried out at least once in six months.
(ii) The Ambient Air Quality monitoring in the core zone shall be carried out to ensure the Coal Industry Standards notified vide GSR 742 (E) dated 25th September, 2000 and as amended from time to time by the Central Pollution Control Board. Data on ambient air quality and heavy metals such as Hg, As, Ni, Cd, Cr and other monitoring data shall be regularly reported to the Ministry/Regional Office and to the CPCB/SPCB.
20(iii) Transportation of coal, to the extent permitted by road.
shall be carried out by covered trucks/conveyors. Effective control measures such as regular water/mist sprinkling/rain gun etc shall be carried out in critical areas prone to air pollution (with higher values of PMio/PM2.5) such as haul road, loading/unloading and transfer points. Fugitive dust emissions from all sources shall be controlled regularly. It shall be ensured that the Ambient Air Quality parameters conform to the norms prescribed by the Central State Pollution Control Board.
(iv) The transportation of coal shall be carried out as per the provisions and route envisaged in the approved Mining Plan or environment monitoring plan. Transportation of the coal through the existing road passing through any village shall be avoided. In case, it is proposed to construct a 'bypass' road, it should be so constructed so that the impact of sound, dust and accidents could be appropriately mitigated.
(v) Vehicular emissions shall be kept under control and regularly monitored. All the vehicles engaged in mining and allied activities shall operate only after obtaining "PUC" certificate from the authorized pollution testing centres.
(vi) Coal stock pile/crusher/feeder and breaker material transfer points shall invariably be provided with dust suppression system. Belt-conveyors shall be fully covered to avoid air borne dust. Side cladding all along the conveyor gantry should be made to avoid air borne dust. Drills shall be wet operated or fitted with dust extractors.
(vii) Coal handling plant shall be operated with effective control measures w.r.t. various environmental parameters. Environmental friendly sustainable technology/should be implemented for mitigating such parameters
(c) Water Quality monitoring and preservation
(i) The effluent discharge (mine waste water, workshop effluent) shall be monitored in terms of the parameters notified under the Water Act, 1974 Coal Industry Standards vide GSR 742 (E) dated 25th September, 2000 and as amended from time to time by the Central Pollution Control Board.
21(ii) The monitoring data shall be uploaded on the company's website and displayed at the project site at a suitable location. The circular No.J-20012/1/2006-1A.11 (M) dated 27th May, 2009 issued by Ministry of Environment, Forest and Climate Change shall also be referred in this regard for its compliance.
(iii) Regular monitoring of ground water level and quality shall be carried out in and around the mine lease area by establishing a network of existing wells and constructing new piezometers during the mining operations. The monitoring of ground water levels shall be carried out four times a year i.e. pre-monsoon, monsoon, post-monsoon and winter. The ground water quality shall be monitored once a year, and the data thus collected shall be sent regularly to MOEFCC/RO.
(iv) Monitoring of water quality upstream and downstream of water bodies shall be carried out once in six months and record of monitoring data shall be maintained and submitted to the Ministry of Environment, Forest and Climate Change/Regional Office.
(v) Ground water, excluding mine water, shall not be used for mining operations. Rainwater harvesting shall be implemented for conservation and augmentation of ground water resources.
(vi) Catch and/or garland drains and siltation ponds in adequate numbers and appropriate size shall be constructed around the mine working, coal heaps & OB dumps to prevent run off of water and flow of sediments directly into the river and water bodies.
Further, dump material shall be properly consolidated/ compacted and accumulation of water over dumps shall be avoided by providing adequate channels for flow of silt into the drains. The drains/ ponds so constructed shall be regularly de-silted particularly before onset of monsoon and maintained properly. Sump capacity should provide adequate retention period to allow proper settling of silt material. The water so collected in the sump shall be utilised for dust suppression and green belt development and other industrial use. Dimension of the retaining wall 22 constructed, if any, at the toe of the OB dumps within the mine to check run-off and siltation should be based on the rainfall data. The plantation of native species to be made between toe of the dump and adjacent field/habitation/water bodies.
(vii) Adequate groundwater recharge measures shall be taken up for augmentation of ground water. The project authorities shall meet water requirement of nearby village(s) after due treatment conforming to the specific requirement (standards).
(viii) Industrial waste water generated from CHP,
workshop and other waste water, shall be
properly collected and treated so as to conform to the standards prescribed under the standards prescribed under Water Act 1974 and Environment (Protection) Act, 1986 and the Rules made there under, and as amended from time to time. Adequate ETP /STP needs to be provided.
(ix) The water pumped out from the mine, after siltation, shall be utilized for industrial purpose viz. watering the mine area, roads, green belt development etc. The drains shall be regularly desilted particularly after monsoon and maintained properly.
(x) The surface drainage plan including surface water conservation plan for the area of influence affected by the said mining operations, considering the presence of river/rivulet/pond/lake etc. shall be prepared and implemented by the project proponent. The surface drainage plan and/or any diversion of natural water courses shall be as per the approved Mining Plan/EIA/EMP report and with due approval of the concerned State/GoI Authority. The construction of embankment to prevent any danger against inrush of surface water into the mine should be as per the approved Mining Plan and as per the permission of DGMS or any other authority as prescribed by the law.
(xi) The project proponent shall take all precautionary measures to ensure riverine/riparian ecosystem in and around the coal mine up to a distance of 5 km. A rivarine/riparian ecosystem conservation and management plan should be prepared and implemented 23 in consultation with the irrigation / water resource department in the state government.
(d) Noise and Vibration monitoring and prevention i. Adequate measures shall be taken for control of noise levels as per Noise Pollution Rules, 2016 in the work environment. Workers engaged in blasting and drilling operations, operation of HEMM, etc shall be provided with personal protective equipments (PPE) like ear plugs/muffs in conformity with the prescribed norms and guidelines in this regard. Adequate awareness programme for users to be conducted. Progress in usage of such accessories to be monitored.
ii. Controlled blasting techniques shall be practiced in order to mitigate ground vibrations, fly rocks, noise and air blast etc., as per the guidelines prescribed by the DGMS. The noise level survey shall be carried out as per the prescribed guidelines to assess noise exposure of the workmen at vulnerable points in the mine premises, and report in this regard shall be submitted to the Ministry/RO on six-monthly basis.
(e) Mining Plan i. Mining shall be carried out under strict adherence to provisions of the Mines Act 1952 and subordinate legislations made there-under as applicable.
ii. Mining shall be carried out as per the approved mining plan(including Mine Closure Plan) abiding by mining laws related to coal mining and the relevant circulars issued by Directorate General Mines Safety (DGMS).
iii. No mining shall be carried out in forest land without obtaining Forestry Clearance as per Forest (Conservation) Act, 1980. iv. Efforts should be made to reduce energy and fuel consumption by conservation, efficiency improvements and use of renewable energy.
(f) Land reclamation i. Digital Survey of entire lease hold area/core zone using Satellite Remote Sensing survey shall be carried out at least once in three years for monitoring land use pattern and report in 1:50,000 scale or as notified by Ministry of Environment, Forest and Climate Change(MOEFCC) from time to time shall be submitted to MoEF&CC/Regional Office (RO).
24ii. The final mine void depth should preferably be as per the approved Mine Closure Plan, and in case it exceeds 40 m, adequate engineering interventions shall be provided for sustenance of aquatic life therein. The remaining area shall be backfilled and covered with thick and alive top soil. Post- mining land be rendered usable for agricultural/forestry purposes and shall be diverted. Further action will be treated as specified in the guidelines for Preparation of Mine Closure Plan issued by the Ministry of Coal dated 27th August, 2009 and subsequent amendments.
iii. The entire excavated area, backfilling, external OB dumping (including top soil) and afforestation plan shall be in conformity with the "during mining"/"post mining" land-use pattern, which is an integral part of the approved Mining Plan and the EIA/EMP submitted to this Ministry. Progressive compliance status vis-a- vis the post mining land use pattern shall be submitted to the MOEFCC/RO.
iv. Fly ash shall be used for external dump of overburden, backfilling or stowing of mine as per provisions contained in clause (i) and (ii) of subparagraph (8) of fly ash notification issued vide SO 2804 (E) dated 3rd November, 2009 as amended from time to time. Efforts shall be made to utilize gypsum generated from Flue Gas Desulfurization (FGD), if any, along with fly ash for external dump of overburden, backfilling of mines. Compliance report shall be submitted to Regional Office of MoEF&CC, CPCB and SPCB.
v. Further, it may be ensured that as per the time schedule specified in mine closure plan it should remain live till the point of utilization. The topsoil shall temporarily be stored at earmarked site(s) only and shall not be kept unutilized. The top soil shall be used for land reclamation and plantation purposes. Active OB dumps shall be stabilised with native grass species to prevent erosion and surface run off The other overburden dumps shall be vegetated with native flora species. The excavated area shall be backfilled and afforested in line with the approved Mine Closure Plan. Monitoring and management of rehabilitated areas shall continue until the vegetation becomes self-sustaining. Compliance status shall be submitted to the Ministry of Environment, Forest and Climate Change/ Regional Office.
25vi. The project proponent shall make necessary alternative arrangements, if grazing land is involved in core zone, in consultation with the State government to provide alternate areas for livestock grazing, if any. In this context, the project proponent shall implement the directions of Hon'ble Supreme Court with regard to acquiring grazing land.
g. Green Belt i. The project proponent shall take all precautionary measures during mining operation for conservation and protection of endangered/endemic flora/fauna, if any, spotted/reported in the study area. The Action plan in this regard, if any, shall be prepared and implemented in consultation with the State Forest and Wildlife Department.
ii. Greenbelt consisting of 3-tier plantation of width not less than 7.5 m shall be developed all along the mine lease area as soon as possible. The green belt comprising a mix of native species (endemic species should be given priority) shall be developed all along the major approach/ coal transportation roads.
h. Public hearing and Human Health Issues i. Adequate illumination shall be ensured in all mine locations (as per DGMS standards) and monitored weekly. The report on the same shall be submitted to this ministry & it's RO on six- monthly basis.
ii. The project proponent shall undertake occupational health survey for initial and periodical medical examination of the personnel engaged in the project and maintain records accordingly as per the provisions of the Mines Rules, 1955 and DGMS circulars. Besides regular periodic health check-up, 20% of the personnel identified from workforce engaged in active mining operations shall be subjected to health check-up for occupational diseases and hearing impairment, if any, as amended time to time.
iii. Personnel (including outsourced employees) working in core zone shall wear protective respiratory devices and shall also be provided with adequate training and information on safety and health aspects.
iv. Implementation of the action plan on the issues raised during the public hearing shall be ensured. The project proponent shall undertake all the tasks/measures as per the action plan submitted with budgetary provisions during the public hearing.
26Land oustees shall be compensated as per the norms laid down in the R&R policy of the company/State Government/Central Government, as applicable. v. The project proponent shall follow the mitigation measures provided in this Ministry's OM No.Z-11013/5712014-IA.I1 (M) dated 29th October, 2014, titled 'Impact of mining activities on habitations-issues related to the mining projects wherein habitations and villages are the part of mine lease areas or habitations and villages are surrounded by the mine lease area.
I.Corporate Environment Responsibility i. The project proponent shall comply with the provisions contained in this Ministry's OM vide F.No.22-65/2017-IA.III dated 151 May 2018, as applicable, regarding Corporate Environment Responsibility.
ii. The company shall have a well laid down environmental policy duly approve by the Board of Directors. The environmental policy should prescribe for standard operating procedures to have proper checks and balances and to bring into focus any infringements/deviation/violation of the environmental/forest/wildlife norms/conditions. The company shall have defined system of reporting infringements/deviation/violation of the environmental/forest/wildlife norms/ conditions and/or shareholders/stakeholders.
iii. A separate Environmental Cell both at the project and company head quarter level, with qualified personnel shall be set up under the control of senior Executive, who will directly to the head of the organization.
iv. Action plan for implementing EMP and environmental conditions along with responsibility matrix of the company shall be prepared and shall be duly approved by competent authority. The year wise funds earmarked for environmental protection measures shall be kept in separate account and not to be diverted for any other purpose. Year wise progress of implementation of action plan shall be reported to the Ministry/Regional Office along with the Six Monthly Compliance Report.
v. Self environmental audit shall be conducted annually. Every three years third party environmental audit shall be carried out.
27j Miscellaneous i. The project proponent shall make public the environmental clearance granted for their project along with the environmental conditions and safeguards at their cost by prominently advertising it at least in two local newspapers of the District or State, of which one shall be in the vernacular language within seven days and in addition this shall also be displayed in the project proponent's website permanently ii. The copies of the environmental clearance shall be submitted by the project proponents to the Heads of local bodies, Panchayats and Municipal Bodies in addition to the relevant offices of the Government who in turn has to display the same for 30 days from the date of receipt.
iii. The project proponent shall upload the status of compliance of the stipulated environment clearance conditions, including results of monitored data on their website and update the same on half-yearly basis.
iv. The project proponent shall monitor the criteria pollutants level namely; PMio, SO2, NOx (ambient levels) or critical sectoral parameters, indicated for the projects and display the same at a convenient location for disclosure to the public and put on the website of the company.
v. The project proponent shall submit six-monthly reports on the status of the compliance of the stipulated environmental conditions on the website of the ministry of Environment, Forest and Climate Change at environment clearance portal. vi. The project proponent shall follow the mitigation measures provided in this Ministry's OM No.Z-11013/5712014-IA.11 (M) dated 29th October, 2014, titled 'Impact of mining activities on habitations-issues related to the mining projects wherein habitations and villages are the part of mine lease areas or habitations and villages are surrounded by the mine lease area.
vii. The project proponent shall submit the environmental statement for each financial year in Form-V to the concerned State Pollution Control Board as prescribed under the Environment (Protection) Rules, 1986, as amended subsequently and put on the website of the company. viii. The project authorities shall inform to the Regional Office of the MOEFCC regarding commencement of mining operations.
28ix. The project authorities must strictly adhere to the stipulations made by the State Pollution Control Board and the State Government.
x. The project proponent shall abide by all the commitments and recommendations made in the EIA/EMP report, commitment made during Public Hearing and also that during their presentation to the Expert Appraisal Committee. xi. No further expansion or modifications in the plant shall be carried out without prior approval of the Ministry of Environment, Forests and Climate Change.
xii. Concealing factual data or submission of false/fabricated data may result in revocation of this environmental clearance and attract action under the provisions of Environment (Protection) Act, 1986.
xiii. The Ministry may revoke or suspend the clearance, if implementation of any of the above conditions is not satisfactory.
xiv. The Ministry reserves the right to stipulate additional conditions if found necessary. The Company in a time bound manner shall implement these conditions.
xv. The Regional Office of this Ministry shall monitor compliance of the stipulated conditions. The project authorities should extend full cooperation to the officer (s) of the Regional Office by furnishing the requisite data / information/monitoring reports.
xx...........................................xx...............................................xx I. VERSION OF THE APPELLANT
7. The Appellant has contended that effect of heavy and massive industrialisation which has happened in the project area, environmental and social impacts have been seen in loss of land, livelihoods, agricultural crops, houses, health impacts and air and water impact and these facts were before the EAC and MoEF & CC when the present project proponent came before him for the consideration of both granting of EoR and grant of EC, however, the prevailing situation were not considered by the concerned Committee and at the stage of screening, scoping, public consultation and appraisal all these facts were not duly considered. It is further contended that 29 applications for prior environmental clearance may be rejected by the regulatory authority concerned on the recommendation of the EAC or SEAC concerned at this stage itself. The EAC and MoEF & CC have not considered the severely polluted state of project area and the judgement of the Tribunal dated 12.09.2011 in Sarpanch, Grampanchayat Tiroda v. The Ministry of Environment and Forests (Appeal No. 3 of 2011).
"This case involved the grant of an EC to the project proponent for conducting mining operations at Tiroda. Here the cumulative effect of four proposed projects was not properly considered. The Hon'ble Tribunal expressed the importance of a Cumulative Impact assessment as follows:
"Unfortunately, the cumulative effect of these four proposed projects was not considered to be of significant in causing environmental pollution in a small area. It appears an impression is sought to be created that there was only one application of Tiroda mine and at that time the Redi mine was not in operation. When number of mines are sought to be considered in a small area of Sawantwadi Taluk, the EAC was expected to examine various aspects such as the cumulative impact of Air, Water, Noise Flora, Fauna and Socio-economic aspects in view of large number of transport vehicles, plants and machinery, etc. that would be operating in the area. It would have been appropriate, if a cumulative impact study was undertaken to take care of all existing/proposed mines within 10 km of the present project site apart from Redi mine, if any. Therefore, we are of the opinion that these aspects were not properly assessed and examined scientifically and therefore, the EIA report requires to be re-examined afresh. Thus, the EIA report suffers from incorrect and insufficient data which pertains to a period much prior to grant of TOR, therefore, the EIA report cannot be said to be sufficient for the purpose of recommending grant of EC."
d. The importance of a cumulative impact assessment was also reiterated by this Hon‟ble Tribunal in T.Murgunandam vs. Ministry of Environment & Forests & Ors [Appeal No. 50 of 2012] and the 30 Hon‟ble Supreme Court in the case of Alaknanda Hydro Power Company Ltd. v. Anuj Joshi and Ors. reported in (2014) 1 SCC 769 Para 50.
e. In its Judgment dated 27.05.2021 in Appeal No. 46 of 2016 (SZ) titled Uma Maheshwar Dahagama vs Union of India & Ors., this Hon‟ble Tribunal has observed in its para 29 as follows:-
"29.This Tribunal had considered the necessity of Cumulative Impact Assessment Study and observed as follows:
....Our effort in this case is to understand what Cumulative Impact Assessment Study is. An enquiring mind would start with the existing law as well as scientific literature and it might be found in persuasive precedents available in the domestic law/literature on closely related topics and at a time in persuasive foreign decision/literature which may show how other jurisdiction have resolved the problem. The value of foreign judgment depends upon the persuasive force of their reasoning. Principles of sustainable development and the precautionary principle as envisaged in the Section 20 of NGT Act, 2010 have been developed in international law but have been domesticated into national laws throughout the world and so in India. Thus the knowledge on the subject can be borrowed with rather a free disregard for political boundaries and jurisdictional boundaries i.e. from all sources Indian or Foreign for bettering our understanding.
41. The European Commission in its guidelines for Assessment of indirect and Cumulative impacts as well as impact interactions defines Cumulative Impact as "Impacts that result from incremental changes caused by other past, present or reasonably foreseeable actions together with the project". CEAA guidelines give similar definition of Cumulative effects: these are changes to the environment that are caused by an action in combination with other past, present and future human actions. The U.S Environmental Protection Agency defines it as "the combined incremental effect on human activity". These definitions are in no way conflicting with the concept of 31 Cumulative Impact Assessment Study, the Project Proponent holds to be correct, as revealed from its submissions. Thus, the Cumulative Impact as the term indicates is not the impact of any project in isolation but it is a total impact resulting from the interaction of the project with other project activities around it- past, present and those to come up in future. It is a comprehensive view of the impacts resulting from all the projects- past, present or planned ones on the environment. Cumulative Impact may be same or different and those arising out of individual activities and tend to be larger, long lasting and spread over a greater area within the individual impact. Such studies are therefore commonly expected to:
1. Assess effects over a larger area that may cross jurisdiction boundaries;
2. Assess effects during a longer period of time into the past and future;
3. Consider effects on other eco-system components due to interactions with other actions, and not just the effect of the single action under review ;
4. Include other past, existing and future (reasonably foreseeable) action; and
5. Evaluate significant effect in consideration of other than just local and direct effects.
42. In the cases, Bombay Dyeing & Mfg. Co. Ltd. Vs. Bombay Environmental Action Group and Ors. (AIR 2006 SC1489) and T.N. Godavarman Thirumulpad Vs. Union of India and Ors. (2008(2) SCC 222) the Hon‟ ble Apex Court referred to the Principle of sustainable development and precautionary principle and stipulated the need to balance environmental concerns with those of developmental requirements. In no way the Hon‟ ble Apex Court discouraged the Cumulative Impact Assessment Study. This Tribunal in fact saw the need for Cumulative Impact Assessment Study in the areas where numerous projects were found located.
Importance of Cumulative Impact Assessment Study was thus expressed by the Tribunal in Sarpanch, Grampanchayat case (Sarpanch, Grampanchayat Tiroda vs. MoEF: Appeal No. 3 of 2011) vide order dated 32 12.09.2011 in following words; "Unfortunately, the cumulative effect of these four proposed projects was not considered to be of significance in causing environmental pollution in a small area. It appears an impression is sought to be created that there was only one application of Tiroda mine and at that time the Redi mine was not in operation. When number of mines are sought to be considered in a small area of Sawantwadi Taluk, the EAC was 34 expected to examine various aspects such as the cumulative impact of Air, Water, Noise, Flora Fauna and socio-economic aspects in view of large number of transport vehicles, plants and machinery etc. that would be operating in the area. It would have been appropriate, if a cumulative impact study was undertaken to take care of all existing/proposed mines within 10 km of the present project site apart from Redi mine, if any. Therefore, we are of the opinion that these aspects were not properly assessed and examined scientifically and, therefor, the EIA report requires to be re-examined afresh".
That this Hon‟ble Tribunal in this Judgment further directed on the issue of Cumulative Impact Assessment as under:-
"The project proponent shall be directed to conduct cumulative impact assessment of ambient air quality modelling for a radius of 15 km from the project area by collecting primary data regarding air quality for another season other than the winter season during the relevant period and also taking more number of locations within 15 kms radius selecting the probable polluting industries situated and the impact of the present as proposed projects in those areas as such directed by the National Green Tribunal in T. Muruganandam & Ors. Vs. Union of India & Ors Appeal No. 50 of 2012."
f. That National Thermal Power Corporation Limited challenged the above Judgment dated
27.05.2021 in Civil Appeal No. 1846 of 2021 titled National Thermal Power Corporation Limited (NTPC) vs. Uma Maheshwar Dahagama and the Hon‟ble Supreme Court vide its order dated 20 July, 33 2021 was pleased to dispose of the Civil Appeal and affirmed the Directions/Judgment passed by the NGT in this case.
g. This being the situation, any industrial activity which is proposed in the area shall have to first consider the Combined Cumulative Impact of already existing industries and Carrying Capacity of the region. For this purpose, it is necessary to conduct Cumulative Impact Assessment study and Carrying Capacity Study as part of the EIA study of the project which has not been done in this case.
h. That it is stated that this Hon‟ble Tribunal in Original Application No. 1038/2018 titled " News item published in "The Asian Age" authored by Sanjay Kaw Titled "CPCB to rank industrial units on pollution levels"
wherein in its Order dated 10.07.2019 it has observed by this Hon‟ble Tribunal that:-
"28.... No further industrial activities or expansion be allowed with regard to „red and „orange category units till the said areas are brought within the prescribed parameters or till carrying capacity of area is assessed and new units or expansion is found viable having regard to the carrying capacity of the area and environmental norms..."
8. The respondent, Project Proponent has raised the issue that the answering respondent cannot be questioned by the Appellant as he has no local standi to file this appeal since Appellant is not a resident of the area in which the environment clearance has been granted. He is a resident of district Anupur which is approximately 300 km from the area which is in question and hence no harm can be expected to be caused to the Appellant by issuance of environmental clearance for expansion of the production capacity.
J. LOCUS STANDI
9. In response to the contention raised by the respondent, Project Proponent that the appellant has no locus standi, the Appellant had submitted that:
34"4. The legislative intent of the legislature in keeping the issue of locus standi before this Hon'ble Tribunal can also be seen from the 186th Law Commission Report -on 'proposal to constitute Environmental Courts' whereby it was proposed to constitute Green Tribunals. On the issue of locus standi the report advocates for a wide locus standi and clearly says that:-
" . Locus Standi: So far as locus standi before the proposed Court in original petitions is concerned, it must be wide as it ls today before the High Court/Supreme Court in writ jurisdiction in environment matters. This is the position in Austrlia and New Zealand also, any person or organization who or which is interested in the subject public matter or in interest must be able to approach the Court."
5. That in Vimal Bhai u Ministry of Environment and Forests (2lll) SCC Online NGT 16, giving a wide interpretation it was held by this Hon'ble Tribunal that "Once the mandate is of every citizen, any person can approach this Tribunal complaining environmental threat in the activities of the State or any organization or individual." The complete paragraph of the Judgment is reproduced as follows:-
"A reading of Section z(j)(i) to (viii) would reveal that any individual, Hindu undivided family, Company, Firm, an association of persons or a body of individuals whether incorporated or not, trustees ofa trusl a local authority and every artificial juridical person not falling within any of the preceding sub-clauses, would indicate "person" who can maintain an application/appeal under the NGT Act. But, it is the argument of the learned counsel of the Respondent that even the above defined person shall be a person either aggrieved or injured directly or indirectly and not otherwise. Then the question arises whether in the environmental matters, a person who is really aggrieved/ injured shall alone be permitted to approach this Tribunal. A combined reading of the above sections, would indicate that any person whether he is a resident of that particular area or not whether he is aggrieved and/or injured or not, can approach this Tribunal, In such situations, it is of course necessary to scan and find out the credentials of the applicant/appellant as to their true intentions and motives. No doubt that in the present case though the appellants have participated in the EC proceedings and they have not challenged the same. However, that does not mean 35 that they cannot challenge the FC proceedings on any available legal grounds (However, it is to be noted that in the guise of challenging the FC, the appellants cannot be permitted to raise the grounds which might be raised, had the EC was challenged). Appellants apprehend a great danger and disaster to the environment and ecology, if the project is not properly envisaged and does not satisfy the principles of sustainable development and precautionary principles as is mandated under Section 20 of the NGT Act. In the matters of environmental cases, any individual or persons and body of individuals can agitate as to the correctness of the study of environment and ecology made by the granting authority. Further, nothing substantial has been demonstrated to doubt the credential of the appellant except saying that they (appellants) are not aggrieved and/or injured person (s) under the Ad and they are a busy body and their motives are ulterior. The person injured per-se as occurred in Section 18 (2) of the NGT Act is only for the purpose of claiming relief, compensation or settlement of disputes, is altogether different from the person aggrieved as available in Section 16. Person aggrieved and person injured are two different words which connote different meaning. Under Section 16 any person aggrieved can approach this Tribunal by way of filing an appeal. Whereas, under Section 18 (2) the person injured per-se, whether it is an individual or a body of individual or a social organization or a Hindu joint family etc. Further under Section 14 and 16 any person can approach this Tribunal for appropriate relief including the relief under Section 18"
From the above it is clear that the State shall endeavour and safeguard the environment and wild life and it is the fundamental duty of the citizen to improve the natural environment including forests, lakes, rivers, and wildlife and also to have compassion for living creatures. Once, the protection and improving the natural environment is the fundamental duty of a citizen, any person can approach this Tribunal and agitate his grievance as to protection and improvement of the natural environment. The statutory provisions are subservient to the constitutional mandates. The person as defined or person aggrieved as occurs in Section 2(j) 16 and 18 (2) of the NGT Act cannot be placed above "every citizen" as appears in Article 51(A) of the 36 Constitution of India, Once the mandate is of every citizen, any person can approach this Tribunal complaining environmental threat in the activities of the State or any organization or individual.
Therefore, we are of the view that the appellants are interested persons in the environment and ecology of the area, though they are not directly affected,/ injured at this point of time, But, they can be definitely called aggrieved persons since they apprehend some danger, if the project is launched without taking proper precautions. The person aggrieved in environmental matters must be given a liberal construction and needs to be flexible. Therefore, we are of the considered opinion that persons like the appellants are also entitled to approach this Tribunal and the appeal is maintainable,"
6. That in Save Mon Region Federation us. Union of India and OE, (M,A. NO. 704 OF 2O72 in Appeal No. 39 OF 2012) it has been held that:- "18. Law gives a right to 'any person' who is aggrieved by an order to prefer an appeal. The term 'any person' has to be widely construed. It is to include all legal entities so as to enable them to prefer an appeal, even if such an entity does not have any direct or indirect interest in a given project. The expression 'aggrieved again, has to be construed liberally, The framers of law intended to give the right to any person aggrieved, to prefer an appeal without any limitation as regards his locus or interest,"
(Emphasised supplied)
7. The National Green Tribunal in Krishan Kant Singh vs. M/s Triveni Engg. Industries Ltd, [O.A NO.31 7/2014] held that:
"Under the provisions of the NGT Act any aggrieved person can approach the Tribunal for redressal of his grievances in relation to environment within the ambit and scope of Sections 14, 16 and 18 of the NGT Ad. The legislative object appears to be to catalyse the access to environmental justice, which need not be circumscribed by strict rule of locus standi in legal prescriptions."
8. Therefore, while consideration of the above-stated judgments, it is very clear that in order to maintain the Appeal direct legal injury is not required and therefore, the Appellant has the requisite locus standi in this case.
379. Further, in the case of Samata & Ann v. MoeF & Ors., 2076 SCC Online NGT 479 this Tribunal had held that:
"Both under Section 11 of the NEAA Ad, 1997 and Section 18 of the NGT Act, 2010 any person aggrieved by the grant of EC as shown above can maintain an appeal. The „aggrieved person‟ as contemplated in the Ad came up for interpretation before the Tribunal in a number of cases. An aggrieved person contemplated in the above provisions would refer to the substantial grievance as to denial of some personal, pecuniary or property right or imposing an obligation on a person. The grievance so ventilated should not be either fanciful or sentimental, but must be substantial. A person calling himself as an „aggrieved' must have suffered a legal grievance that he has been wrongfully deprived of something or refused wrongfully. The aggrieved person can either be aggrieved either directly or indirectly. In so far as the environmental matters are concerned it cannot be stated that the person really aggrieved should alone be permitted to initiate an action. It is not necessary that the person, who initiates action, is a resident of that particular area wherein the proposed industrial site is located. It is true that the appellants have not participated in the proceedings of the public hearing. It is true that it is necessary to scan the credentials of the appellants as to their intention and motive. Even assuming that the appellants have not participated in the proceedings of the public hearing, to they would not lose their right challenge the approval or the EC. If the appellants come forward with a case apprehending damage and danger to environment and ecology if the project in question was not properly not satisfy the Principles of Sustainable Development and Precautionary Principles, they can maintain the appeal and be allowed to agitate as to the correctness of the study made in respect of ecology and environment."
10. The issue of locus standi was also raised before this Tribunal in the case of Samir Mehta n Union of India & Ors. , 2O16 SCC online NGT 479 before the PRINCIPAL BENCH of this Tribunal wherein after going through a plethora of cases discussing the issue this Hon‟ble Tribunal held that:-
38" From the above judgment it is clear that locus standi of an Applicant cannot be given a strict connotation under the environmental laws of our country. 'Environment, is not a subject which is person oriented but is society centric. The impact of environment is normally felt by a larger section of society. Whenever environment is diluted or eroded the results are not person specific. If we were to adopt the reasoning given by the Respondents then it would lead to undesirable results. The provisions of a statute must be examined in light of the scheme of the Act and the scheme of both enactments afore referred do not permit recourse to such narrower interpretation."
11. That in Hanuman Laxman Aroskar vs, Union of India, (2019) 15 SCC 4O1, it has been held that:
"164. Before we part with the present case, we consider it appropriate to record a finding on the bona fides of the appellants before this tourt. It was briefly urged by the respondents that the appellants have invoked the jurisdiction of this Court based on a personal agenda and consequently, the present appeal is liable to be dismissed. This argument cannot be accepted. We accept the submission of Ms Shenoy, Learned counsel appearing on behalf of the appellants, that the non-consideration of vital issues by EAC has led to the invocation of the statutory remedy available to them under Section 22 of the NGT Act, 2010. Vague aspersions on the intention of public-spirited individuals does not constitute an adequate response to those interested in the protection of the environment. If a court comes to the finding that the appeal before it was lacking bona fides, it may issue directions which it thinks appropriate in that case. In cases concerning environmental governance, it is a duty of courts to assess the case on its merits based on the materials present before it. Matters concerning environmental governance concern not just the living, but generations to come. The protection of the environment, as an essential facet of human development, ensures sustainable development for today and tomorrow."39
10. The respondent has argued that the applicant is not person aggrieved and in reply thereof the applicant relied on Vimal Bhai Vs MoEF and Ors, [Appeal No. 5 of 2011] on 14th December, 2011, dealt with the interpretation of section 16 and section 18 to explain the meaning of „person aggrieved‟ under the NGT Act and observed:
"The person injured per-se as occurred in Section 18 (2) of the NGT Act is only for the purpose of claiming relief, compensation or settlement of disputes, is altogether different from the person aggrieved as available in Section 16. Person aggrieved and person injured are two different words which connote different meaning. Under Section 16, any person aggrieved can approach this Tribunal by way of filing an appeal, whereas, under Section 18 (2), the person injured per-se, whether it is an individual or a body of individual or a social organization or a Hindu joint family, etc. Further, under Section 14 and 16 any person can approach this Tribunal for appropriate relief including the relief under Section 18.
The only exception to be made for treating an appeal/application as not maintainable could be a matter which falls beyond the seven (7) Acts as notified in Schedule I of the NGT Act 2010 and in a case of mala-fide and vexatious litigation brought before this Tribunal and not otherwise."
11. In M.C. Mehta Vs University Grants Commission & Ors on 17 July, 2014 (Original Application No.12 of 2014), this Tribunal has examined and explained intent of legislature and scope of Section 14,15 and 16 of the NGT Act, 2010. In the said decision, the Principal Bench spelt out that "jurisdiction under Section 16 of the Act is distinct from that of Ss.14 and 15" and held:
"12. This Tribunal is vested with three different jurisdictions. Firstly, it has the original jurisdiction in 40 terms of Section 14 of the 10 NGT Act to deal with all civil cases raising a substantial question relating to environment and where such questions arise out of the implementation of the enactments specified in Schedule I of the NGT Act. Secondly, it is vested with appellate jurisdiction against the various orders / directions / decisions as stated in Section 16 (a) to (j) of the NGT Act. Thirdly it has a special jurisdiction in terms of Section 15 to grant relief of compensation and restitution as per the scheme contemplated under that provision. Admittedly, the present application has been filed under Section 14 of the NGT Act. Thus, it must plead and raise the following:
It should be a civil case.
Where a substantial question relating to environment or enforcement of any legal right relating to environment is involved.
Such question arises out of implementation of enactment specified in Schedule I of the NGT Act.
13. Once these three ingredients are satisfied, then Section 14 does not appear to place any restriction on the locus or character of the Applicant who wishes to move an application under Section 14 of the Act. Similarly, Section 15 also does not describe the description of an Applicant who can move the Tribunal for seeking reliefs like compensation, restitution of the property and the environment. In contradistinction thereto, Section 16 restricts the Applicant entitled to file an Appeal to be 'any person aggrieved'. In other words, it is only a person aggrieved who can invoke the jurisdiction of the Tribunal under Section 16 and not any Applicant. Section 18 deals with the procedure which has to be followed by an applicant or appellant, who prefers to file an application or appeal before the Tribunal. It deals with all the three jurisdictions specified under Section 14, 15 and 16 of the NGT Act. However, Section 18 (2) of the NGT Act provides the details in regard to locus and character of an Applicant who is entitled to move the Tribunal by filing an Application for grant of relief or compensation or settlement of dispute. Section 18(2) has been worded by the legislature with wide amplitude besides covering any 41 person aggrieved and the legal representatives of the various categories. In terms of Section 16, it includes various other persons as described under clauses (a) to (d) and
(f) of sub-Section 2 of Section 18. The locus and character of an applicant specified under these provisions has to receive liberal construction and would cover variety of applicants. As far as Section 14 (1) of the NGT Act is concerned, the only restriction that appears to be imposed is that it must satisfy the prerequisites stated in that Section."
12. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A petition is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the Appellant that there has been a breach of statutory duty on the part of the Authorities.
Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts.
It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In-fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the Appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide: State of Orissa v. Madan Gopal Rungta MANU / SC / 0012 /1951MANU/SC /0012/1951: AIR 1952 SC 12; Saghir Ahmad and Anr. v. State of U.P. MANU/SC/0110/1954 MANU/SC/0110/1954:AIR 1954 SC 728;
Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal and 42 Ors. MANU/ SC / 0063 /1962 MANU/SC/0063/1962: AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh MANU/SC/0690/1996 MANU /SC/0690/1996: AIR 1996 SC 736;
and Tamilnadu Mercantile Bank Shareholders Welfare
Association (2) v. S.C. Sekar and Ors. MANU/SC/8375/
2008 MANU/SC /8375/2008 : (2009) 2 SCC 784).
13. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York MANU / SC / 0017 / 1974 MANU / SC / 0017 / 1974 : AIR 1974 SC 1719; and State of Rajasthan and Ors. v. Union of India and Ors.
MANU/SC/0370/1977MANU/SC/0370/1977: AIR 1977 SC 1361).
14. In Anand Sharadchandra Oka v. University of Mumbai MANU/SC/7106/2008MANU/SC/7106/2008 : AIR 2008 SC 1289, a similar view was taken by Court, observing that, if a person claiming relief is not eligible as per requirement, then he cannot be said to be a person aggrieved regarding the election or the selection of other persons.
15. In A. Subhash Babu v. State of A.P. MANU/S C /0845/2011 MANU/SC/0845/2011 : AIR 2011 SC 3031, Court held:
"The expression 'aggrieved person' denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and 43 meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant."
16. Hon‟ble Court, even as regards the filing of a habeas corpus petition, has explained that the expression, 'next friend' means a person who is not a total stranger. Such a petition cannot be filed by one who is a complete stranger to the person who is in alleged illegal custody.
(Vide: Charanjit Lal Chowdhury v. The Union of India and Ors.
MANU/SC/0009/1950MANU/SC/0009/1950 : AIR 1951 SC 41;
Sunil Batra (II) v. Delhi Administration MANU/SC/
0184/1978MANU/SC/0184/1978 : AIR 1980 SC 1579; Mrs.
Neelima Priyadarshini v. State of Bihar
MANU/SC/0253/1987MANU/SC/0253/1987 : AIR 1987 SC 2021;
Simranjit Singh Mann v. Union of India MANU/SC/ 0058/1993MANU /SC/ 0058/1993 : AIR 1993 SC 280; Karamjeet Singh v. Union of India MANU/SC/0059/1993MANU/SC/0059/1993 : AIR 1993 SC 284;
and Kishore Samrite v. State of U.P. and Ors. MANU/SC/0892/ 2012MANU/SC/0892/2012 : JT (2012) 10 SC 393).
17. Hon‟ble Court has consistently cautioned the courts against entertaining public interest litigation filed by unscrupulous persons, as such meddlers do not hesitate to abuse the process of the court. The right of effective access to justice, which has emerged with the new social rights regime, must be used to serve basic human rights, which purport to guarantee legal rights and, therefore, a workable remedy within the framework of the judicial system must be provided. Whenever any public interest is invoked, the court must examine the case to ensure that there is in fact, 44 genuine public interest involved. The court must maintain strict vigilance to ensure that there is no abuse of the process of court and that, "ordinarily meddlesome bystanders are not granted a Visa". Many societal pollutants create new problems of non-
redressed grievances, and the court should make an earnest endeavour to take up those cases, where the subjective purpose of the lis justifies the need for it. (Vide: P. S. R. Sadhanantham versus Arunachalam and another MANU/ SC /0083 /1980 MANU/SC/0083/1980 : AIR 1980 SC 856; Dalip Singh versus State of U.P. and others.
MANU/SC/1886/2009MANU/SC/1886/2009 : (2010) 2 SCC 114;
State of Uttaranchal versus Balwant Singh Chaufal and others MANU/SC/0050/2010MANU/SC/0050/2010 : (2010) 3 SCC 402; and Amar Singh versus Union of India anothers MANU/SC/0596/2011MANU /SC /0596 /2011 : (2011) 7 SCC
69).
18. Even as regards the filing of a Public Interest Litigation, Court has consistently held that such a course of action is not permissible so far as service matters are concerned. (Vide: Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors.
MANU/SC/0541/1998MANU/SC/0541/1998 : AIR 1999 SC 114;
Dattaraj Natthuji Thaware v. State of Maharashtra MANU/SC/1 060/ 2004 MANU/SC/1060/2004 : AIR 2005 SC 540; and Neetu v. State of Punjab and Ors. MANU/SC/7008 /2007MANU/SC/ 7008/2007 : AIR 2007 SC 758).
19. In Ghulam Qadir v. Special Tribunal and Ors.MANU/SC/0608/2001MANU/SC/0608/2001 : (2002) 1 SCC 33, Court considered a similar issue and observed as under:-
"There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of 45 India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the Petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in our country and the constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper- technical grounds. ----In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."
20. Hon'ble Supreme Court in Ravi Yashwant Bhoir v. District Collector, Raigad and Ors. MANU/SC/0186/2012MANU /SC / 0186/2012 : (2012) 4 SCC 407, held as under:
"Shri Chintaman Raghunath Gharat, ex-President was the complainant, thus, at the most, he could lead evidence as a witness. He could not claim the status of an adversarial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eye of the law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria.
The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest.46
In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons.
Under the garb of being a necessary party, a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lis, as the person who wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated, for the reason that a legal injury creates a remedial right in the injured person. A person cannot be heard as a party unless he answers the description of aggrieved party."
21. A similar view has been re-iterated by Court in K. Manjusree v. State of Andhra Pradesh and Anr.
MANU/SC/ 0925 /2008MANU/SC/0925/2008 : (2008) 3 SCC 512, wherein it was held that, the applicant before the High Court could not challenge the appointment of a person as she was in no way aggrieved, for she herself could not have been selected by adopting either method. Moreover, the appointment cannot be challenged at a belated stage and, hence, the petition should have been rejected by the High Court, on the grounds of delay and non-
maintainability, alone.
MANU/SC/7743/2008 MANU/SC/7743/2008 : (2008) 12 SCC 1, it has been held that a violation of the equality clauses, enshrined in Articles 14 and 16 of the Constitution, or discrimination in any form, can be alleged, provided that, the writ Petitioner 47 demonstrates a certain appreciable disadvantage qua other similarly situated persons.
23. While dealing with the similar issue, The Court in Raju Ramsingh Vasave v. Mahesh Deorao Bhiavapurkar and Ors.
MANU/SC/3754/2008MANU /SC / 3754/2008 : (2008) 9 SCC 54 held:
"We must now deal with the question of locus standi. A special leave petition ordinarily would not have been entertained at the instance of the Appellant. Validity of appointment or otherwise on the basis of a caste certificate granted by a committee is ordinarily a matter between the employer and the employee. This Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo motu. It may not treat the special leave petition as a public interest litigation, but, as a public law litigation. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so as to enable the court to find out as to whether a party to a lis is guilty of commission of fraud on the Constitution. If such an enquiry subserves the greater public interest and has a far-reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so." (also:
Manohar Joshi v. State of Maharashtra and Ors. (2012) 3 SCC 619)
24. In Vinoy Kumar v. State of U.P. MANU/SC/ 0252 / 2001 MANU/SC/0252/2001 : AIR 2001 SC 1739, Court held:
"Even in cases filed in public interest, the court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is 48 threatened and such person or determined class of person is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief."
25. Since a serious question of application of environmental rule has been raised in this matter and reply has been filed by the parties thus, it is desirable that the application should be heard and decided on merit. Thus we proceed on merit.
K. EAC AND CONSIDERATION OF OBJECTIONS:
Inadequate deficient and incomplete EIA and the issue of base line data used in ambient air quality data
26. The appellant has raised the issue of EIA report and the base line data which was collected during March-June, 2016 which is set to be two years prior to the grant of ToR, and further that the base line data used for the preparation of EIA/EMP Report should not be older than three years at the time of submission of the proposal. Para 7 of the OM dated 29.08.2017 provides that the data should not be older than the three years and in view of the report submitted by the EIA the same was used. It is further submitted that the base line AAQ data was collected during June, 2016 on the total sanctioned coal production capacity for all the mines of Northern coal field was 71 MTPA which was increased to 90.75 MTPA during and at the time of the appraisal of the current proposal. It is further argued that the data collected by the Madhya Pradesh Pollution Control Board on Ambient Air Quality was not duly considered by the EIA and the project proponent has used out dated air model for air modelling.
27. In response to the above contention, MoEF&CC, Respondent No. 1 has submitted that :-
i. The base line ambient air quality data were recorded for three months' period (From March to June, 2016) by selecting four core zone & four Buffer zone stations. The parameter chosen for 49 assessment of ambient air quality was SPM, PMl0, PM2.5, SO2, NOx and heavy metals such as Pb, As, Ni, Cr, Cd, Hg and Free silica in PM10. The frequency of sampling is twice a week for 24- hour duration on consecutive days for 12 weeks.
ii. The proposal was first submitted on Ministry's PARIVESH Por1al and essential details (EDS) were sought on2210412019 and a reply in that context was sent on 05/01/2020. It is further submitted that EDS was sought once again on 09/01/2020 and in that context reply was sent on 2210112020. Therefore, the baseline data considered in EIA/EMP by the Project Proponent for preparation of EIA/EMP report for the proposed expansion project was within three years. The same is in conformity with the provisions contained in the Ministry‟s OM dated 29th August,2017, which inter-alia provides as under :-
"The baseline data used for preparation of EIA/EMP reports may be collected at any stage, irrespective of the request for ToR or the issue thereof,, However, such u baseline data and the public consultation should not be older than 3 years, at the time of submission of the proposal, for grant of Environmental Clearance, as per ToRs prescribed."
28. The total Forest land involved in the project comprises of 555.000 ha. (U.P.), 194.780 ha (M.P.) and 467.809 ha (M.P.) which makes a total of 1217.589 ha forest land. It is further submitted that the Ministry, vide letter dated 19th April, 2018, has accorded Stage-II In-principle approval under the Forest Conservation Act, 1980 for the diversion of 467.809 hectares of forest land required during expansion proposal for Opencast Coal Mining in favour of M/s Northern Coalfields Limited, Rewa in Singrauli District, State of Madhya Pradesh.
29. EAC in its 53rd meeting held on 20th February, 2020 has taken into consideration the response regarding Air quality Impact Prediction (AQIP) for incremental coal production from opencast mines of M/s Northern Coalfields 50 Limited. AQIP was carried out by using Fugitive Dust Model (FDM-90121, 1990) considering current and peak production of mines.
30. As per EIA/EMP, in Dudhichua Open cast mine the sources of noise are drilling & blasting operation in coal and OB, operation of HEMMs, operation of equipment in CHP, workshop, etc, presently at existing production level Noise levels are within the limits of the prescribed standard. The noise level in and around the project is not likely to increase in future due to expansion of Dudhichua Mine, as there is no increase in equipment population.
31. Central Mine planning and Design Institute (CMPDI) was entrusted the Flora & Fauna study for Dudhichua Expansion Project. The expert team had visited and observed l0 km around Dudhichua Expansion project for study.
In the study all type of flora from natural as well as artificial plantation and fauna have been surveyed. As per the above study, there is no endangered or endemic floral species in the core & buffer zone of study area. Also, there is no endangered faunal species or migratory birds in the core as well as in buffer zone of study area, so separate conservation plan is not required.
32. Central Mine planning & Design Institute Limited (CMPDIL) is NABET/QCI accredited Consultant for preparation of EIA/EMP reports relating to mining of minerals, including Open cast/Underground mining and Coal Washeries.
33. The impact of mining on Hydrology and ground water were analysed and assessed and Mitigative measures were suggested. The Industrial and domestic waste water was being treated in-existing ETP and STP and re-use.
34. The matter was taken up in 52nd meeting of EAC as agenda no. 53.1 and the points as raised by the Appellant was duly considered as follows :-
Agenda No. 53.1 Expansion of Dudhichua Opencast Coal mining Project {expansion in production from 15.50 MTPA to 25 MTPA in an ML area 2390.722 ha of M/s Northern Coalfields Ltd. located in village Chilkatand District Sonebhadra (Madhya Pradesh}
- For Environmental Clearance - reg 51 [Proposal No. IA/MP/CMIN/8814/2008; F. No. IA-J- 11015/381/2008-IA.II(M)] 53.1.1 The proposal is for environmental clearance for Expansion of Dudhichua Opencast Coal Mining Project (expansion in production from 15.50 MTPA to 25 MTPA in an ML area 2390.722 ha of M/S Northern Coalfields Ltd located in village Chilkatand District Sonebhadra (Madhya Pradesh ) 53.1.2 Details of the proposal, as ascertained from the proposal documents and as revealed from the discussions held during the meeting, are given as under:
i. The project area is covered under Survey of India Topo Sheet No G44W12 and is bounded by the geographical coordinates ranging from 24°9‟12.23"N to 24°9‟20.28"N and Longitude:
82041‟3.27"E to 82°40‟2.3"E. ii. Coal linkage of the project is proposed for Basket linkage mine for pit head power station of NTPC, UPRVUNL in Singrauli Coalfields and Power station in Western/ Northern India through their own MGR system and other consumers by Public Railway.
iii. Joint venture cartel has been formed- NIL.
iv. Project does not fall in the Critically Polluted
Area (CPA),
v. Employment generation 3350 nos (as per
EPR}
vi. The project is reported to be beneficial in
terms of: The project will be able to supply
planned quantity of coal to pit head power
stations of NTPC, UPRVUNL in Singrauli
Coalfields and power stations in western/
Northern India through their own MGR system
and other consumers by public railway system thus meeting the energy needs of the Country. vii. Earlier, the environment clearance to the project was obtained under EIA Notification, 52 vide Ministry's letter No J-11015/381/2008- IA.II(M) dated:2612/2019 for 17.5 MTPA in mine lease area of 1752 Ha.
viii. Total mining lease area as per block
allotment is 2390.722 Ha. Mining Plan
(Including Progressive Mine Closure Plan) has been approved by the NCL board on 25.11.2017.
ix. The land usage pattern of the project is as follows:
Pre- mining land use details (Area in Ha.)
Sr. Land Use Within ML Outside ML Total
No. Area Area
1 Agricultural Land 806.913 - 806.913
2 Forest Land 1217.589 - 1217.589
3 Wasteland - - -
4 Grazing Land - - -
5 Surface Water Bodies - - -
6 Settlements - - -
7 Others (Government 366.22 - 366.22
Land)
Total Project Area 2390.722 - 2390.722
Post Mining:
S. Land use Land use (ha)
No. Plantation Water Public Undisturbe Total
Body Use d
1 External OB 152 - - - 152
Dump
2 Top Soil Top Soil has been used immediately in reclamation of
Dump dumps.
3 Excavation 1316 324 - - 1640
4 Roads - - -
5 Built-up - - 174 - 174
Area
6 Green Belt 62.722 - - - 62.722
7 Undisturbe 164 - - - 164
d Area
Safety Zone
8 Rationalizat
ion Area
9 Diversion - - - - -
Nala /
Canal
10 Water Body - - - - -
11 Staff - - 198 - 198
Colony
Total Area 1694.722 324.00 372.00 - 2390722
x. Total geological reserve reported in the mine lease area
is 361.34 MT with 320.01 MT mineable reserves. Out of 53 total mineable reserve of 320.01 MT, 288.009 MT are available for extraction. Percent of extraction is 90%. xi. 03 seams with thickness ranging from 1.95m -- 25.75m are workable. Grade of coal is G-8 to G- 12, stripping ratio 4.61 m3/t, while gradient is 20 to 30.
xii. Method of mining operations envisages by Combination of Dragline and Shovel- Dumper method.
xiii. Life of mine is 17 years.
xiv. The project has two external OB dumps in an area of
152 Ha with 90m height and 134 Mm3 of OB. Two
Internal OB dumps in an area of 1316 Ha with
1483.33 Mm3 of OB are envisaged in the project. xv. Total quarry area is 1640 Ha out of which backfilling done in 1316 Ha while final mine void will be created in an area of 324 Ha with a depth of 30m to 40m.
BacKfilled quarry area of 1316 Ha shall be reclaimed with plantation, Final mine void will be converted into water body.
xvi. Transportation of coal has been proposed by Rear bumpers in mine pit head, from surface to siding by Coal Handling Plant (CHP) and at sidings to loading by Silo.
xvii. Reclamation Plan in an area of 1694.722 Ha, comprising of 152 Ha of external dump, 1316 Ha of internal dump and 62.722 Ha of green belt. In addition to this, an area of 164 Ha, included in the safety zone/rationalization area, has also been proposed for green belt development.
xviii. 1217.589 Ha of forest land has been reported to be involved in the project. Approval under the Forest (Conservation) Act, 1980 for diversion of forest land for non-forestry purposes has been obtained as follows:-
Area (Ha) Stage-1 FC issued Validity Period
vide letter no & date of FC
555.00 (UP 8-298/87-FC dated 30.07.1990 Valid Upto
State) 30.07.2020
194.78 (MP Letter No.8-13/93-FC (Vol-III) Valid Upto
State) dated 17.11.2015 17.11.2035
The remaining forestland of 467.809Ha has Stage I clearance and Stage-II clearance of forest land is under process.
54xix. No National Parks, Wildlife Sanctuaries and Eco-
Sensitive Zones have been reported with 10 km boundary of the project.
xx. The ground water level has been reported to be varying between 1.18m (2017) to 21.50m (2019) during pre-monsoon and between 0.55m (2019) to 18.70m (2018) during post-monsoon. Total water requirement for the project is 8183m3/d.
xxi. Application for obtaining the approval of the Central Ground Water Authority:- NOC granted vide NOC No. CHWA/NOC/MIN/ORIG/2019/6993 by CGWA.
xxii. Public nearing for the project of 25 MTPA capacity in
an area of 2390.722 Ha was conducted on
08.02.2019 at Virendra Community Hall,
Dudhichua Sector-A Colony, Singrauli. Major issues raised in the public hearing and Appropriate action to address the issues raised in the Public Hearing have already been taken/proposed to be taken. xxiii. Consent to operate for the existing capacity was obtained from the State PCB on 29.01.2020 and is valid till 31.12.2020.
xxiv. Regular monitoring of ambient air quality is being carried out on fortnightly basis. The documented report is submitted to SPCB and also to MoEF&CC along with half yearly EC compliance report. In general, the results of ambient air quality monitoring data were found within prescribed limits except few aberrations which can be attributed to the specific local conditions during the day of sampling.
xxv. No court cases, violation cases are pending against the project of the PP.
xxvi. The project does not involve violation of the EIA Notification, 2006 and amendment issued there under. The coal production from the mine was started from the year 1987 onwards. The coal production, realized from the project from, 1987-88 onwards and the production details of last ten financial years are as under:
55 Year EC Actual Excess production
sanctioned production beyond
capacity (MTPA) the EC sanctioned
(MTPA) capacity
2008-09 15.50 13.27 NIL
2009-10 15.50 13.31 NIL
2010-11 15.50 10.50 NIL
2011-12 15.50 11.73 NIL
2012-13 15.50 12.23 NIL
2013-14 15.50 11.17 NIL
2014-15 15.50 10.82 NIL
2015-16 15.50 13.08 NIL
2016-17 15.50 14.01 NIL
2017-18 15.50 15.50 NIL
2018-19 15.50 15.50 NIL
2019-20 15.50 13.674 NIL
(upto Dec-19)
xxvii. The project involves 580 nos. project affected
families. R&R of the PAPs will be done as per R&R policy of Coal India Ltd.
xxviii. Total cost of the project is Rs.271837 lakhs. Cost of production is Rs. 850.27/- per tonne (2018-19), CSR cost is 2% of the avg. net profit of the company for three Immediate proceeding financial year or Rs.2 per tonne whichever is higher, R&R cost is Rs.29.09 crores. Environment management Cost is Rs.
16152.78 Lakhs (As per EPR).
xxix. Consent to operate (CTO) was obtained from the State Pollution Control Board on 29.01.2020 and is valid till 31.12.2020.
53.1.3 During deliberations on the proposal, the Committee noted the following:
The proposal is for environmental clearance for Expansion of Dudhichua Opencast Coal Mining Project (expansion in production from15.50 MTPA to 25 MTPA in an ML area 2390.722 ha of M/s Northern Coalfields Ltd located In village Chilkatand District Sonebhadra (Madhya Pradesh ).
Earlier environmental clearance for 12.5 MTPA in an area of 1752 ha was granted on 28 February, 2008 from 12.5 to 15.5 MTPA on 10th December, 2O08. Further environmental clearance for 15.5 to 17.5 MTPA in an area of 1752 ha has been granted on 26" December, 2019.
ToR was granted by Ministry on 1st February, 2018. Public hearing for the project of 25 MTPA capacityty in an ML area of 2390.722 ha 56 was conducted on 8th February, 2019 at Virendra Community Hall, Dudhichua Sector A Colony, P.O. Jayant, Singrauli, Madhya Pradesh. Issues related to pollution due to stored mine water, higher fluoride concentration, R & R Compensation, water pollution, air pollution due to transportation of coal, desiliting of ballia nallah, blasting during mining etc were raised during Public Hearing.
A Study of IRR in Its ecological dimension to know the pollution load bearing capacity of the surrounding ecosystem has been carried out by Department of Environmental Science & Environment (ESE), IIT (ISM), Dhanbad, Jharkhand.
The most important stream in around is Ballia Nalla. The drainage of the area is controlled by seasonal streams which discharge into Ballia Nallah, which ultimately drains into Govind Ballabh Pant Sagar in the south. Similarly, towards north, the drainage is through seasonal streams which ultimately join Bijul Nalla.
In the Dudhichua Project area 4 villages are directly affected by mining operations namely Dudhichua, Chilkatand, Karwari and Madhauli, which constitute the core zone. Out of these villages Dudhichua & Karwari villages are fully affected & balance two villages are partially affected.
The base line ambient air quality data were recorded for three months period (From March to June 2016) by selecting core zone & Buffer zone stations.
2390.722 Ha of land already acquired including the forest land of 467.809 Ha. For 467.809 Ha Stage-II is under process and the same proposal has been linked to this EC application.
Mine plan (including Mine Closure Plan) has been approved for 20 th MTPA (Normative) and 25 MTPA (Peak) approved by CIL on 25 November, 2017.
Compliance of EC conditions are certified by Regional Office, Bhopal vide its Letter dated 24th October, 2018. The Committee deliberated the compliance status.
57The EAC, constituted under the provision of the EIA Notification, 2006 and comprising of Experts Members/domain experts in various fields, have examined the proposal submitted by the Project Proponent in desired form along with report prepared and submitted by the Consultant accredited by the QCI/ NABET on behalf of the Project Proponent.
The EAC noted that the Pproject Proponent has given undertaking that the data and information given in the application and enclosures are true to the best of his knowledge and belief and no information has been suppressed in the report. If any part of data/information submitted is found to be false/misleading at any stage, the project will be rejected and Environmental Clearance given, if any, will be revoked at the risk and cost of the project proponent. The EAC has deliberated the proposal and has made due diligence in the process as notified under the provisions of the EIA Notification, 2006, as amended from time to time and accordingly made the recommendations to the proposal. The Experts Members of the EAC have found the proposal in order and have recommended for grant of Environmental Clearance (EC).
L. RECOMMENDATIONS:
53. 1.4 The EAC, after detailed deliberation, recommended the proposal for grant of environmental clearance to Expansion of Dudhichua Opencast Coal Mining Project (expansion in production from 15.50 MTPA to 25 MTPA in an ML area 2390.722 ha of M/s Northern Coal fields Ltd located in village Chilkatand District Sonebhadra (Madhya Pradesh), under the provisions of the Environment Impact Assessment Notification, 2006 and subsequent amendments/circulars thereto subject to the compliance of the following terms & conditions / specific conditions: -
(i) Validity of EC is life of the mine or 30 years whichever is earlier as per EIA Notification, 2006.
(ii) The project proponent shall obtain Consent to establish from the State Pollution Control Boards for the proposed peak capacity of 20 MTPA (Normative)/ 25 MTPA(Peak) prior to commencement of the increased production.
(iii) Third party monitoring (by NEERI/CIMFR/IIT) for air quality shall be carried out at identified locations, both ambient and the process area, to arrive at impact of the proposed expansion. The results along with the recommendation shall be presented before the EAC 58 to assess the efficacy and adequacy of pollution control measures.
(iv) Transportation of coal from Coal Handling Plant shall be through covered trucks.
(v) To control the production of dust at source, the crusher and in-pit belt conveyors shall be provided with mist type sprinklers.
(vi) Mitigating measures shall be undertaken to control dust and other fugitive emissions all along the roads by providing sufficient water sprinklers. Adequate corrective measures shall be undertaken to control dust emissions, which would include mechanized sweeping, water sprinkling/mist spraying on haul roads and loading sites, long range misting/fogging arrangement, wind barrier wall and vertical greenery system, green belt, dust suppression arrangement at loading and unloading points, etc.
(vii) Continuous monitoring of occupational safety and other health hazards, and the corrective actions need to be ensured.
(viii) Persons of nearby villages shall be given training on livelihood and skill development to make them employable.
(ix) Thick green belt of adequate width at the final boundary in the down wind direction of the project site shall be developed to mitigate/check the dust pollution.
(x) Mechanism for treating stored mine water shall be developed to avoid any ground and surface water contamination
(xi) Mining shall be carried out only by surface miners for the expansion project and siIo loading through in-pit conveyor should be installed to avoid road transportation in 2 years.
(xii) Ballia, Bijul and other Nallahs linked with this project shall be cleaned quarterly to avoid deposition of silts.
(xiii) Efforts shall be made for utilizing alternate sources of surface water, abandoned mines or else whatsoever and thus minimizing the dependability on a single source.
(xiv) The company shall obtain approval of CGWA for use of groundwater for mining operations at its enhanced capacity of 20 MTPA (Normative)/ 25 MTPA(Pea k).
(xv) Continuous monitoring of occupational safety and other health hazards, and the corrective actions need to be ensured. (xvi) A third party assessment of EC compliance shall be undertaken once in three years through agency like ICFRI /NEERI/IIT or any other expert agency identified by the Ministry. (xvii) Active OB dump should not be kept barren/open and should be covered by temporary grass to avoid air born of particles 59 (xviii) Permission of diversion of nallah from concerned statutory authority (if any) (xix) Compliance of the non-compliance/partial compliance conditions certified by Regional Office, Bhopal vide its Letter No. 3-
22/2009(ENV)/807 dated 24th October, 2018. The PP shall take all the mitigation measures and the Action taken report shall be submit the Regional office of the MoEFCC. (xx) Project proponent to plant 150,000 nos. of native trees with broad leaves along the villages namely Dudhichua, Chilkatand, Karwari and Madhauli in three years and along transportation route to prevent the effect of air pollution. After completion of tree plantation, number of trees shall be duly endorsed from District Forest Officer.
(xxi) The activities and fund provisions for CER shall be made as per the guidelines issued by the ministry regarding CER on 1st May, 2018.
(xxii) Project Proponent shall obtain blasting permission from DGMS for conducting mining operation near villages and also explore deployment of rock breakers of suitable capacity in the project to avoid blasting very near to villages. There shall be no damages caused to habitation/structures due to blasting activity.
(xxiii) The Project Proponent shall complies with all the statutory requirements and judgment of Hon'ble Supreme Court dated the 2nd August 2017 in Writ Petition (Civil) No. 114 of 2014 in the matter of Common Cause versus Union of India and Ors. State Government shall ensure that the entire compensation levied, if any, for illegal ilning paid by the Project Proponent through their respective Department in strict compliance of judgment of Hon'ble Supreme Court dated the 2nd August 2017 in Writ Petition (Civil) No. 114 of 2014 in the matter of Common Cause versus Union of India and Ors. (xxiv) Project Proponent shall obtain the necessary prior permission from the Central Ground Water Authority (CGWA) in case of intersecting the Ground water table. The intersecting ground water table can only be commence after conducting detailed hydrogeological study and necessary permission from the CGWA, The Report on six monthly basis on changes in Ground water level and quality shall be submitted to the Regional Office of the Ministry, CGWA and State Pollution Control Board 60 (xxv) Proponent shall appoint an Occupational health Specialist for Regular and Periodical medical examination of the workers engaged in the Project and maintain records accordingly; also Occupational health check-ups for workers having some ailments like BP, diabetes, habitual smoking, etc. shall be undertaken once in six months and necessary remedial/preventive measures taken accordingly. The Recommendations of National Institute for ensuring good occupational environment for mine workers shall be implemented; the prevention measure for burns, malaria and provision of antisnake venom including all other paramedical safeguards may be ensured before initiating the mining activities.
(xxvi) Project Proponent shall follow the mitigation measures provided in Office Memorandum No. Z-11013/57/2014- IA.II (M), dated 29th October, 2014, titled "Impact of mining activities on Habitations-issues related to the mining Projects wherein Habitations and villages are the part of mine lease areas or Habitations and villages are surrounded by the mine lease area".
(xxvii) The illumination and sound at night at project sites disturb the villages in respect of both human and animal population. Consequent sleeping disorders and stress may affect the health in the villages located close to mining operations. Habitations have a right for darkness and minimal noise levels at night. PPs must ensure that the biological clock of the villages is not disturbed; by orienting the floodlights/ masks away from the villagers and keeping the noise levels well within the prescribed limits for day light/night hours.
(xxviii) The project proponent shall take all precautionary measures during mining operation for conservation and protection of endangered fauna, if any, spotted in the study area. Action plan for conservation of flora and fauna shall be prepared and implemented in consultation with the State Forest and Wildlife Department. A copy of action plan shall be submitted to the Ministry of Environment, Forest and Climate Change and its Regional Office.
(xxix) Hon'ble Supreme Court in an Writ Petition(s) Civil No. 114/2014, Common Cause vs Union of India & Ors vide its judgement dated 8th January, 2020 has directed the 61 Union of India to impose a condition in the mining lease and a similar condition in the environmental clearance and the mining plan to the effect that the mining lease folders shall, after Ceasing mining operations, undertake regrassing the mining area and any other area which may have been disturbed due to their mining activities and restore the land to a condition which is fit for growth of fodder, flora, fauna etc. Compliance of this condition after the mining g activity is over at the cost of the mining lease holders/Project Proponent". The implementation report of the above said condition shall be sent to the Regional Office of the MoEFCC.
Additional Specific as the area falls under Severely Polluted Area (SPAs) (xxx) CTE/CTO for the project shall be obtained from the SPCB as required under the Air (Prevention and Control| of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) act, 1974 and the SPCB shall follow the mechanism/protocol issued by the Ministry vide letter no. Q-16017/38/20-18-CPA dated 24th December, 2019 while issuing the CTE/CTO for the project, for improvement of environmental quality in the area.
(xxxi) The green belt of at least 5-10 m width shall be developed in more than 40% ( in place of EAC recommended 33%) of the total project area, mainly along the plant periphery, in downward wind direction, and along road sides etc. Selection of plant species shall be as per the CPCB guidelines in consultation with the State Forest Department.
(xxxii) In addition, the project proponent shall develop greenbelt outside the plant premises such as avenue plantation, plantation in vacant areas, social forestry etc. (xxxiii) Monitoring of compliance of EC conditions may be submitted with third party audit every year.
(xxxiv) The percentage the CER may be atleast 1.5 times the amount given in the OM dated 01 May, 2018 recommended by the EAC and item-wise details along with time bound action plan shall be prepared and submitted to the Ministry's Regional Office.
6235. Standard EC conditions for Coal Mining Project (Open Cost Mining) have been also given in appendix-1, which is as follows :-
M. STANDARD EC CONDITIONS FOR COAL MINING PROJECT (OPENCAST MINING) :
All the projects recommended for grant of environmental clearance by the EAC shall also comply with the following Standard EC conditions as per Ministry's Circular issued from time to time:
(a) Statutory Compliance i. The project proponent shall obtain forest clearance under the provisions of Forest (Conservation) Act, 1986, in Case of the diversion of forest land for non -forest purpose involved in the project.
ii. The project proponent shall obtain clearance from the National Board for Wildlife if applicable.
iii. The project proponent shall prepare a Site-Specific
Conservation Plan/Wildlife Management Plan and
approved by the Chief Wildlife Warden. The
recommendations of the approved Site-Specific Conservation Plan/Wildlife Management Plan shall be implemented in consultation with the State Forest Department. The implementation report shall be furnished along with the Six-monthly compliance report (in case of the presence of schedule-I species in the study area).
iv. The project proponent shall obtain Consent to Establish/Operate under the provisions of Air (Prevention & Control of Pollution) Act, 1981 and the Water (Prevention & Control of Pollution) Act, 1974 from the concerned State Pollution Control Board/Committee.
v. The project proponent shall obtain the necessary permission from the Central Ground Water Authority. vi. Solid/hazardous waste generated in the mines needs to addressed in accordance to the Solid Waste Management Rules, 2016/ Hazardous & Other Waste Management Rules, 2016.
B. Air quality monitoring and Preservation
(i) Continuous ambient air quality monitoring stations as prescribed in the statue be established in the core zone as 63 well as in the buffer zone for monitoring of pollutants, namely PM10, PM2.5, SO2, NOX. Location of the stations shall be decided based on the meteorological data, topographical features and environmentally and ecologically sensitive targets in consultation with the State Pollution Control Board. Online Ambient air quality monitoring stations may also be installed in addition to the regular monitoring stations as per the requirement and/or in consultation with the SPCB. Monitoring of heavy metals such as Hg, As, Ni, Cd, Cr, etc to be carried out at least once in six months.
(ii) The Ambient Air quality monitoring in the core zone shall be carried out to ensure the Coal Industry Standards notified vide GSR 742(E) dated 25th September, 2000 and as amended from time to time by the Central Pollution Control Board. Data on ambient air quality and heavy metals such as Hg, As, Ni, Cd, Cr and other monitoring data shall be regularly reported to the Ministry/Regional Office and to the CPCB/ SPCB.
(iii) Transportation of coal, to the extent permitted by road, shall be carried out by covered trucks/conveyors. Effective control measures such as regular water/mist sprinkling/ rain gun etc shall be carried out in critical areas prone to air pollution (with higher values of PM10 /PM2.5) such as haul road, loading/unloading and transfer points, Fugitive dust emissions from all sources shall be controlled regularly. It shall be ensured that the Ambient Air Quality parameters conform to the norms prescribed by the Central/State Pollution Control Board.
(iv) The transportation of coal shall be carried out as per the provisions and route envisaged in the approved Mining Plan or environment monitoring plan. Transportation of the coal through the existing road passing through any village shall be avoided. In case, it is proposed to construct a 'bypass' road, it should be so constructed so that the impact of sound, dust and accidents could be appropriately mitigated.
(v) Vehicular emissions shall be kept under control and regularly monitored. All the vehicles engaged in mining and allied activities shall operate only after obtaining 'PUC' certificate from the authorized Pollution Testing Centers.
(vi) Coal stock pile/crusher/feeder and breaker material transfer points shall invariably be provided with dust suppression 64 system. Belt-conveyors shall be fully covered to avoid air borne dust. Side cladding all along the conveyor gantry should be made to avoid air borne dust. Drills shall be wet operated or fitted with dust extractors.
(vii) Coal handling plant shall be operated with effective control measures w.r.t. various environmental parameters, Environmental friendly sustainable technology should be implemented for mitigating such parameters.
C. Water quality Monitoring and Preservation
(i) The effluent discharge (mine waste water, workshop effluent) shall be monitored in terms of the parameters notified under the Water Act, 1974 Coal Industry Standards vide GSR 742 (E) dated 25 September, 2000 and as amended from time to time by the Central Pollution Control Board.
(ii) The monitoring data shall be uploaded on the company's website and displayed at the project site at a suitable location. The circular No.J-20012/ 1/2006-IA. 11 (M) dated 27 May, 2009 issued by Ministry of Environment, Forest and Climate Change shall also be referred in this regard for its compliance
(iii) Regular monitoring of ground water level and quality shalll be carried out in and around the mine lease area by establishing a network of existing wells and constructing new piezometers during the mining operations. The monitoring of ground water levels shall be carried out four times a year i.e. pre-monsoon, monsoon, post-monsoon and winter. The ground water quality shall be monitored once a year, and the data thus collected shall be sent regularly to MOEFCC/RO.
(iv) Monitoring of water quality upstream and downstream of water bodies shall be carried out once in six months and record of monitoring data shall be maintained and submitted to the Ministry of Environment, Forest and Climate Change /Regional Office.
(v) Ground water, excluding mine water, shall not be used for mining operations. Rainwater harvesting shall be implemented for conservation and augmentation of ground water resources.
(vi) Catch and/or garland drains and siltation ponds in adequate numbers a n d appropriate size shall be constructed around the mine working, coal heaps & OB dumps to prevent run off of water and flow of sediments directly into the river 65 and water bodies. Furher, dump material shall be properly consolidated/ compacted and accumulation of water over dumps shall be avoided by providing adequate channels for flow of silt into the drains. The drains/ ponds so constructed shall be regularly de-silted particularly before onset of monsoon and maintained properly. Sump capacity should provide adequate retention period to allow proper settling of silt material. The water so collected in the sump shall be utilized for dust suppression and green belt development and other industrial use. Dimension of the retaining wall constructed, If any, at the toe of the OB dumps within the mine to check run-off and siltation should be based on the rainfall data. The plantation of native species to be between toe of the dump and adjacent field/habitation/water bodies.
(vii) Adequate groundwater recharge measures shall be taken up for augmentation of ground water. The project authorities shall meet water requirement of nearby village(s) after due treatment conforming to the specific requirement (standards).
(viii) Industrial waste water generated from CHP, workshop and other waste water, shall be properly collected and treated so as to conform to the standards prescribed under the standards prescribed under Water Act, 1974 and Environment (Protection) Act, 1986 and the Rules made there under, and as amended from time to time. Adequate ETP /STP needs to be provided.
(ix) The water pumped out from the mine, after siltation, shall be utilized for industrial purpose viz. watering the mine area, roads, green belt development etc. The drains shall be regularly desilted particularly after monsoon and maintained properly.
(x) The surface drainage plan including surface water conservation plan for the area of influence affected by the said mining operations, considering the presence of river/rivulet/pond/lake etc, shall be prepared and implemented by the project proponent. The surface drainage plan and/or any diversion of natural water courses shall be as per the approved Mining Plan/EIA/EMP report and with due approval of the concerned State/Gol Authority. The construction of embankment to prevent any danger against inrush of surface water into the mine should be as per the approved mining Plan and as per the permission of DGMS or any other authority as prescribed by the law.
(xi) The project proponent shall take all precautionary measures to ensure riverine/riparian ecosystem in and around the 66 coal mine up to a distance of 5 km. A rivarine/riparian ecosystem conservation and management plan should be prepared and implemented in Consultation with the irrigation / water resource department in the state government.
D. Noise and Vibration monitoring and prevention
(i) Adequate measures shall be taken for control of noise levels as per Noise Pollution Rules, 2016 in the work environment, Workers engaged in blasting and drilling operations, operation of HEMM, etc shall be provided with personal protective equipments (PPE) like ear plugs/muffs in conformity with the prescribed norms and guidelines in this regard. Adequate awareness programme for users to be conducted. Progress in usage of such accessories to be monitored.
(ii) Controlled blasting techniques shall be practiced in order to mitigate ground vibrations, fly rocks, noise and air blast etc., as per the guidelines prescribed by the DGMS.
(iii) The noise level survey shall be carried out as per the prescribed guidelines to assess noise exposure of the workmen at vulnerable points in the mine premises, and report in this regard shall be submitted to the Ministry/RO on six-monthly basis.
E. Mining Plan i. Mining shall be carried out underr strict adherence to provisions of the Mines Act 1952 and subordinate legislations made there-under as applicable.
ii. Mining shall be carried out as per the approved mining plan (including Mine Closure Plan) abiding by mining laws related to coal mining and the relevant circulars issued by Directorate General Mines Safety (DGMS).
iii. No mining shall be carried out in forest land without obtaining Forestry Clearance as per Forest (Conservation) Act, 1980. iv. Efforts should be made to reduce energy and fuel consumption by conservation, efficiency improvements and use of renewable energy.
F. Land reclamation
(i) Digital Survey of entire lease hold area/core zone using Satellite Report Sensing survey shall be carried out at least 67 once in three years for monitoring land use pattern and report in 1: 50,000 scale or as notified by Ministry of Environment Forest and Climate Change(MOEFCC) from time to time shall be submitted to MOEFCC/Regional Office (RO).
(ii) The final mine void depth should preferably be as per the approved Mine Closure Plan, and in case it exceeds 40 m, adequate engineering interventions shall be provided for sustenance of aquatic life therein. The remaining area shall be backfilled and covered with thick and alive top soil. Post-mining land be rendered usable for agricultural/forestry purposes and shall be diverted. Further action will be treated as specified in the guidelines for Preparation of Mine Closure Plan Issued by the Ministry of Coal dated 27 August, 2009 and subsequent amendments.
(iii) The entire excavated area, backfilling, external OB dumping (including top soil) and afforestation plan shall be in conformity with the "during mining"/"post mining" land-use pattern, which is an integral part of the approved Mining Plan and the EIA/EMP submitted to this Ministry. Progressive compliance status vis-a- vis the post mining land use pattern shall be submitted to the MDEFCC/RO.
(iv) Fly ash shall be used for external dump of overburden, backfilling or stowing of mine as per provisions contained in clause (i) and (ii) of sub-paragraph (8) of fly ash notification issued vide SO 2804 (E) dated 3rd November, 2009 as amended from time to time. Efforts shall be made to utilize gypsum generated from Flue Gas Desulfurization (FGD), if any, along with fly ash for external of overburden, backfilling of mines. Compliance report shall be submitted to Regional Office of MoEF&CC, CPCB and SPCB.
(v) Further, it may be ensured that as per the time schedule specified in mine Closure plan it should remain live till the point of utilization. The topsoil shall temporarily be stored at earmarked site(s) only and shall not be kept unutilized. The top soil shall be used for land reclamation and plantation purposes. Active OB dumps shall be stabilized with native grass species to prevent erosion and surface run off. The other overburden dumps shall be vegetated with native flora species. The excavated area shall be backfilled and afforested in line with the approved Mine Closure Plan. Monitoring and management of rehabilitated areas snail continue until the vegetation becomes self-
68sustaining. Compliance status shall be submitted to the Ministry of Environment, Forest and Climate Change/ Regional Office.
(vi) The project proponent shall make necessary alternative arrangements, if grazing land is involved in core zone, in consultation with the State government to provide alternate areas for livestock grazing, if any. In this context, the project proponent shall implement the directions of Hon'ble Supreme Court with regard to acquiring grazing land.
G. Green Belt i. The project proponent shall take all precautionary measures during mining operation for conservation and protection of endangered/endemic flora/fauna, if any, spotted/reported in the study area. The Action plan in this regard, if any, shall be prepared and implemented In consultation with the State Forest and Wildlife Department. ii. Greenbelt consisting of 3-tier plantation of width not less than 7.5 m shall be developed all along the mine lease area as soon as possible. The green belt comprising a mix of native species (endemic species should be given priority) snail be developed all along the major approach/ coal transportation roads.
H. Public hearing and Human health issues i. Adequate illumination shall be ensured in all mine locations (as per DGMS standards) and monitored weekly. The report on the same shall be submitted to this ministry & it's RO on six-monthly basis.
ii. The project proponent shall undertake occupational health survey for initial and periodical medical examination of the personnel engaged in the project and maintain records accordingly as per the provisions of the Mines Rules, 1955 and DGMS circulars. Besides regular periodic health check- up, 20% of the personnel identified from workforce engaged in active mining operations shall be subjected to health check up for occupational diseases and hearing impairment, if any, as amended time to time.
iii. Personnel (including outsourced employees) working in core zone shall wear protective respiratory devices and shall also be provided with adequate training and information on safety and health aspect.
69iv. Implementation of the action plan on the issues raised during the public hearing shall be ensured. The project proponent shall undertake all the tasks/measures as per the action plan submitted with budgetary provisions during the public hearing. Land austees shall be compensated as per the norms laid down in the R&R policy of the company/state Government/Central Government, as applicable.
v. The project proponent shall follow the mitigation measures provided in this Ministry„s OM No.Z-11013/5712014-IA.11 (M) dated 29 October, 2014, titled „Impact of mining activities on habitations-issues related to the mining projects wherein habitations and villages are the part of mine lease areas or habitations and villages are surrounded the mine lease area.
I. Corporate Environment Responsibility (i) The project proponent shall comply with the provisions
contained in this Ministry„s OM vide F.No.22-65/2017-IA.III dated 01 may, 2018, as applicable, regarding Corporate Environment Responsibility.
(ii) The company shall have a well laid down environmental policy duly approve by the Board of Directors. The environmental policy should prescribe for standard operating procedures to have proper checks and balances and to bring into focus any infringements/deviation/violation of the environmental/forest/wildlife norms/conditions. The company shall have defined system of reporting infringements/deviation/violation of the environmental/ forest/wildlife norms/conditions and/or shareholders/stake holders.
(iii) A separate Environmental Cell both at the project and company head quarter level, with qualified personnel shall be set up under the control of senior Executive, who will directly to the head of the organization.
(iv) Action plan for implementing EMP and environmental conditions along with responsibility matrix of the company shall be prepared and shall be duly approved by competent authority. The year wise funds earmarked for environmental protection measures shall be kept in separate account and not to be diverted for any other purpose. Year wise progress of 70 implementation of action plan shall be reported to the Ministry/Regional Office alongwith the Six Monthly Compliance Report.
(v) Self environmental audit shall be conducted annually. Every three years third party environmental audit shall be carried out.
J. MISCELLANEOUS
(i) The project proponent shall make public the environmental clearance granted for their project along with the environmental conditions and safeguards at their cost by prominently advertising it at least in two local newspapers of the District or State, of which one shall be in the vernacular language within seven days and in addition this shall also be displayed in the project proponent‟s website permanently.
(ii) The copies of the environmental clearance shall be submitted by the project proponents to the Heads of local bodies, Panchayats and Municipal Bodies in addition to the relevant offices of the Government who in turn has to display the same for 30 days from the date of receipt.
(iii) The project proponent shall upload the status of Compliance of the stipulated environment clearance conditions, including results of monitored data on their website and update the same on half-yearly basis.
(iv) The project proponent shall monitor the criteria pollutants level namely; PM10, SO2, NOx (ambient levels) or critical sectoral parameters, indicated for the projects and display the same at a convenient location for disclosure to the public and put on the website of the company.
(v) The Project proponent shall submit six-monthly reports on the status of the compliance of the stipulated environmental conditions on the website of the ministry of Environment, Forest and Climate Change at environment clearance portal.
(vi) The project proponent shall follow the mitigation measures provided in this Ministry's OM No. Z-11013/5712014-IA.IA (M) dated 29 October, 2014, titled 'Impact of mining activities on habitations-issues related to the mining projects wherein habitations and villages are the part of mine lease areas or habitations and villages are surrounded by the mine lease area.
(vii) The project proponent shall submit the environmental statement for each financial year in Form-V to the concerned 71 State Pollution Control Board as prescribed under the Environment (Protection) Rules, 1986, as amended subsequently and put on the website of the company.
(viii) The project authorities shall inform to the Regional Office of the MOEFCC regarding commencement of mining operations.
(ix) The Project Authorities must strictly adhere to the stipulations made by the State Pollution Control Board and the State Government.
(x) The project proponent shall abide by all the commitments and recommendations made in the EIA/EMP report, commitment made during Public Hearing and also that during their presentation to the Expert Appraisal Committee.
xx...........................................xx...............................................xx
36. It is argued by the respondent that the district under question falls under the category severely polluted and the information provided by the respondent in the form 1 have been furnished based on the data collected and filtered by the credible agency known as Central Mine Planning and Design Institute Ltd. (CMPDIL), which holds and accreditation in this regard by the National Accreditation Board for Testing and Calibration Laboratories (NABL). The required and available information was submitted in sub-para 4.1 to 4.3 relating to the expansion of the project and there is no other industrial waste other than the respondents mining activity in that area and further that information related to contaminated soil or other materials, solid waste, emission from other sources, emission of light and heat from any other source has already been furnished according to the expert report. The data with regard to the base line was valid up to June, 2019 and the EIA - EMP report was uploaded on the parivesh portal within the time on 18.04.2019, when the base line data was valid and hence, the allegation made that the data was uploaded after the expiry of three years period is not tenable. It is further argued that air monitoring data in the EIA is incorrect while the same was considered in the EIA report. The respondent has submitted that total eight numbers of 72 air monitoring stations were established for base line data generation.
Four stations in Core Zone and four stations were established as per standard terms of reference. The quality of the ambient air was within the permissible limits as prescribed by the central pollution control board and the stations established in the residential area.
37. The data in the EIA/EMP report reveals that the Ambient Air Quality during the question was within the permissible limits because of the mitigation measures being taken by coal mining projects of Northern Coal Fields Limited to reduce to lower level of ambient air pollution, and that the impact prediction for main pollutant PM10 has been done and since SOx and NOx are not the main pollutants and their measured concentrations are well known below the permissible limits they have not been considered for impact prediction.
38. It is further argued that -
i. The mining area is located on the topographical divide, no nallah diversion has been proposed for the Dudhichua OCP expansion. Only firs order streams flow in the mining area which will be pumped out in the downstream side of the respective drainage itself. i.e. outside the mining property where the original course of these nallahs will be maintained. ii. The contents of Para 39 are denied and it is submitted that the remaining water requirement of industrial usage is fulfilled from accumulated rain water in mine sump and domestic water requirement is fulfilled from integrated water supply scheme (IWSS), Khadia which is a unit or NCL created for the purpose of treated water.
iii. Land acquired for Dudhichua Project includes land from villages namely Dudhichua, Chilkatand, Karwari Madhauli also as mentioned in core zone. Villagers of these villages have been rehabilitated and resettled outside the core zone in the year 2008. There is no habitation within the core zone area.
iv. Action taken report on issues raised during public hearing held on 08.02.2019 were addressed and action place was submitted as Annexure XXX in the EIA report attached at S. 73 No. 39 (a) Copy of EIA/EMP of form 2. The same was also discussed during the EAC meeting. It is also incorrect that the EAC had not analyzed and deliberated on the report of public hearing and the grievances raised thereon. The EAC after consideration of the report had raised certain issues on 22.04.2019 through MOEF&CC thereafter it was resubmitted by the proponent/respondent pursuant to the query raised on 22.04.2019 in regard to action plan with budgetary allocation on 05.01.2020.
v. The land area involved for expansion of Dudhichua OCP is located in Singrauli District of Madhya Pradesh only therefore as per the Terms of Reference granted by the MoEF and CC, the public hearing was conducted at Virendra Samudayik Bhawan, Sector A, Dudhichua" in Singrauli district of Madhya Pradesh. Notice for the public hearing scheduled on 08.02.2019 was published in Newspapers on 08.01.2019 inviting all stakeholders irrespective of locality.
vi. That the land area, involved for expansion of Dudhichua OCP is located in Singrauli District of Madhya Pradesh only therefore as per the Terms of Reference granted by the MoEF and CC, the public hearing was conducted at "Virendra Samudayik Bhawan, Sector - A, Dudhichua" in Singrauli District of Madhya Pradesh. Notice for the public hearing scheduled on 08.02.201.9 was published in Newspapers on 08.01.2019 inviting all stakeholders irrespective of locality.
vii. That each and every requirement and formalities were completed in the process of the study for environment impact assessment. The public hearing was conducted by the Madhya Pradesh Pollution Control Board and their complete information was provided to the stakeholders at the time of hearing and accordingly the environment Impact Assessment was prepared by CMPDIL. The same was also submitted on the EAC.
viii. Dudhichua has already obtained final approval for 555 Ha. Forest land in Uttar Pradesh. Forest clearance for khadia project admeasuring 750 Ha of Northern Coal Fields was granted in the year 1994 and forest clearance for area admeasuring 194.78 Ha of forest in Madhya Pradesh has 74 been has been granted already in 2005. Further, for expansion, Stage-I clearance has already been obtained for 467.809 Ha land vide letter dated 19.04.2018 and clearance for Stage - II is under process. There is no work/operation is presently being carried out in the area of 467.809 Ha. forest land.
39. The matter of ambient air quality and water quality was assessed and studied by the CMPDI and in its report the matter was discussed as follows :
Existing environmental scenario:
Environmental baseline Study: The present environmental quality assessment, impacts, and mitigation measures has been carried out by generating the baseline data of environmental quality parameters such as ambient air & micro-meteorology, water, Noise levels, soil, flora & fauna socio economic & occupational health, land use survey by remote sensing, hydro geological data, water levels etc. Environmental baseline study for the project has already been completed in pre-monsoon (March-June 2016).
Socio-Economic & Occupational Health study :NCL through CMPDIL entrusted Socio-economic and occupational Health for Dudhichua Expn. Project to M/S VRDS Consultants, Chennai. The study reveals that the expansion of the Dudhichua OCP will enhance the socio-economic acclivities, physical infrastructure in the adjoining areas, This will result in improvements in Physical infrastructure, improvements in Social infrastructure, and increase in Employment Potential contribution to the Postmining enhancement of Green cover.
Baseline Data on ambient air with micro-meteorology, water, noise, and soil: The site specific data are recorded for three months period (From March-June 2016) M/S CEG, Test House & research station Pvt. Ltd. Jaipur -Rajasthan. Details of Base line data on meteorology, air, water, noise and soil are given.
Ambient air quality: In order to assess ambient air quality of study area of Dudhichua Expn. Project a meteorological station was installed in Core zone al GM's Office of Dudhichua 75 Project which represents the prevailing micro meteorological aspects of the study area.
The baseline ambient air quality data were recorded for three months period (From March to June, 2016) by selecting four core zone & four Buffer zone stations. The Buffer Zone AAQ monitoring stations, were selected in the village, area considering upwind and downwind direction as well as to represent the cross sectional scenario of the project site Based on the production activities. The parameter chosen for assessment of ambient air quality are SPM, PM10, PM2.5, SO2 , N0x and heavy metals such as Pb, As, Ni, Cr, Cd, Hg and Free silica in PM10.
Water quality scenario : In order to assess the water quality of study area of Dhudhichua Expn. Project, the water sampling was done at different location in -and around the area representing waste water/treated water, drinking ground water and surface water sources. Water sampling stations are selected to assess the effect of mining activities on the water quality in surrounding area as well as in the township. The water quality analysis results along with prescribed standard are presented. The analysis results reveals that all the parameters were within the prescribed standards.
Noise Levels: In order to assess the Noise level in study area of Dudhichua Expn, Project, the Noise level recording was done at 08 different locations. Ambient noise levels were recorded during day and night time and the observed values were compared with standards prescribed by MoEFCC. The results are found to be within permissible limits. The noise level data for various locations appended.
Soil quality : in order to assess The soil quality of study area of Dudhichua project, soil samples were collected in disturbed and undisturbed condition and analysed in the laboratory. To assess the baseline soil quality, samples are collected from identified locations using auger at depth 30, 60 and 100 cms . The samples are analysed for chemical parameters like pH, EC, N, P, K and engineering parameters like textural class, specific gravity, liquid limit, plastic limit, field capacity, witing coefficient and available water holding capacity. Details of analysis is given.76
Impact Assessment and Pollution Control measures for ambient air: The pollution sources are obvious and to assess the impact, the project life is divided into operational & post . operational phase. Details of impact assessment including prediction of air quality due to expansion by modeling is given.. Appropriate mitigative measures to control the air pollution due to different activities like drilling blasting, loading and transportation, coal handling etc have been suggested in the above chapter.
Impact assessment & pollution control measures for water: Sanitary , (domestic) waste water, Industrial wastewater from workshop, Wastewater from mine, Surface run-off passing through coal stockpiles, Storm water from - leasehold area and built-up area are likely sources of water pollution from this project. The industrial and domestic waste water are being treated in existing ETP and STP and re-use. The ETP and STP has sufficient capacity to cater the need of Expansion. Impact of above sources on Hydrology & ground water have been assessed & appropriate mitigative measures have been suggested.
Impact assessment & pollution control measures for noise & balance: In Dudhichua Open cast mine the sources of noise are drilling & blasting operation in Coal and OB, operation of HEMMs, operation of equipment in CHP, workshop. etc. presently at existing production level Noise levels are within the limits of the prescribed standard. The noise level in and around the project is not likely to increase in future due to expansion of Dudhichua Mine, as there is no increase oin equipment. In case noise levels exceed the permissible limit, its adverse impacts have been assessed and appropriate mitigative measures have been suggested.
Impact on Land Resource and Its Management: The total land required for the mining & infrastructures etc. of Dudhichua project is 2390.722 ha. The probable causes for land degradation are as a result of quarry excavation. overburden dumping, civil construction, approach roads etc. Land use pattern of Dudhichua OCP will be changed during mining operations. This changes has both beneficial & adverse impact. At post-mining stage land will be reclaimed to an environmentally acceptable state as pre-mining stage, if 77 not better. Forestry is the end objective adopted for final land use.
Impact on flora and fauna: The study report reveals. Tht there is no endangered or endemic floral species in the core &.buffer zone of study area. Also, there is no migratory corridor of any endangered fauna species in the core as well as in buffer zone of study area. Therefore no separate conservation plan is required. The impact on flora & fauna is not that serious.
Impact on meteorology: The mining operation is a physical operation which involves excavation and material handling- No significant micrometeorological condition wilt be affected by the increased mining activities.
40. In chapter XII disclosure of consultant in case has been mentioned and CMPDI is said to be registered consultant to Voda Bank, Asian Development Bank, African Development Bank, United Nations Development Programme and other Encs. Accordingly, we are of the view, that the information provided by the Project Proponent in Form No. 1 was in accordance with the available information and there is sufficient and complete discussion and decision on the EIA and available base line data for consideration of Ambient Air Quality was considered and the air model for air modelling have been used as per available model, the impact of blasting, noise, vibration and air pollution was duly considered by EIA and natural drainage and the detail water balance has also been considered by the concerned committee while scrutinizing the EAC.
N. PUBLIC HEARING
41. It is argued that no public hearing was conducted in affected areas while the EIA notifications required as follows :
"49.That as per the Paragraph 7 (III) (i) of the EIA Notification, 2006:
(i) "Public Consultation" refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of 78 the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate.
(ii) The Public Consultation shall ordinarily have two components comprising of:-
(iii) A public hearing at the site or in its close proximity- district wise, to be carried out in the manner prescribed in Appendix IV, for ascertaining concerns of local affected persons.
50. It is submitted that as is clear from the above, the EIA Notification, 2006 requires that all locally affected individuals are treated as stakeholders in the future of an upcoming project in the area and likewise, as stated in Appendix IV of the Notification, all efforts are to be made by the concerned regulatory bodies (Pollution Control Boards) that the widest possible circulation of notice of public hearing is undertaken to make the process of Environmental Clearance as democratic as possible.
51. That in the Appendix IV of the E1A Notification' 2006 it is clearly mentioned that:-
" In case the project site is covering more than one District' State- or Union Territory in which the project is located the applicant shall make separate requests to each concerned SPCB or UTPCC for holding the public hearing as per this Procedure."
52. That the above mandatory provision of EIA provisions has been totally overlooked in this case by the EAC while recommending the Project.
53. That the mining lease area intersects the border between Madhya Pradesh and Uttar Pradesh, as is clear from the EC and the Location Map provided in the EIA report prepared by the project proponent, it is submitted that the Public Hearing for the said mining project was only conducted in Singrauli, Madhya Pradesh and not in the adjoining and affected areas within Sonbhedra District of Uttar Pradesh despite the fact that the Mining Lease Area intersects the border between the two States. The appellant submits that this is a serious lapse and corresponding violation of the EIA Notification, 2006.
7954. That the EC dated 20.3.2020 was granted to the project proponent only based on Public Hearing proceedings conducted in Madhya Pradesh thereby making the process of public hearing incomplete.. The appellant submits that the said EC dated 20.03.2020 is liable to be quashed on this ground alone. Further, as per the Form 1 Part (III) titled 'Environmental Sensitivity‟ under Appendix I of the EIA Notification, 2006, disclosures with respect to 15 kilometer aerial distance from the proposed project location boundary have to be provided by the project proponent clearly showing that the legislature intended that the impact over the entire surrounding area of a project needs to be considered which has conveniently been given bypassed by the EAC.
PUBLIC HEARING HAS BEEN DONE ON THE BASIS OF AN INCOMPLETE EIA REPORT
55. That Project Proponent has submitted an incomplete EIA study to the EAC without any Executive Summary, Public Hearing Proceedings, without giving status of Land acquisition or green belt, without giving NABL certificate of sub consultant engaged by main certificate, without giving any impact prediction for-So2, NOx and PM2.5, as there was discrepancy in the GLC levels. These all and other similar aspect/parameters were material for any EIA to be complete but the Project Proponent has submitted the incomplete EIA in April, 2019 itself in order to escape from the time period provided for validity of the data in the OM dated 29th August, 2017. This also shows that the queries on the above issues have been responded to by the Project Proponent on 22.01.202O and hence all the 15 issues the EIA was incomplete and data deficient and hence the EIA which was given to the Public before the Public Hearing too was incomplete and so the Public Hearing was a sham being based on an incomplete EIA study. It is stated that the Public Hearing is not in terms of the EIA Notification, 2006
42. In the reply submitted by the Respondent No.3/Madhya Pradesh Pollution Control Board it has been submitted that the Environmental Clearance (EC) are granted as per the provisions of the EIA notification according to which the EC applications are decided by the MoEF&CC. The public hearing for the 80 project was conducted on 08.02.2019 for the expansion of the project, in the presence of Collector and Regional Officer, Madhya Pradesh Pollution Control Board, the industry representatives and general public at large, after due publication of the same in all local news papers. The Madhya Pradesh Pollution Control Board has also installed a Continuous Ambient Air Quality Monitoring Stations (CAAQMS) at NCL Dudhichua Singrauli. The Project Proponent and rest of the respondents have submitted that the public hearing was conducted by the Madhya Pradesh Pollution Control Board and the complete information was provided to the stakeholders well within time.
Since the land area involved for expansion of Dudhichua OCP is located in Singrauli District of Madhya Pradesh only therefore as per the terms of reference granted by the MoEF&CC the public hearing was conducted at Singruli in District Madhya Pradesh and the notice for the public hearing was issued in the news papers of affected areas.
43. In the present case, nothing has been shown by the petitioner that there is a case of failure to exercise the discretion or excess or abuse of discretionary power vested to the respondents. Learned counsel for the petitioner has submitted that the opportunity of public hearing was not provided to the petitioner before passing the order impugned.
44. On the other hand, learned counsel for the respondents has submitted that the opportunity of hearing was provided to the petitioner.
45. It cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi Vs. State Bank of India &Ors., AIR 1984 SC 273; N.K. Prasada Vs. Government of India &Ors., (2004) 6 SCC 299; State of Punjab Vs. Jagir Singh, (2004) 8 SCC 129; Karnataka SRTC &Anr. Vs. S.G. Kotturappa&Anr., (2005) 3 SCC 409; and in Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd., (2005) 5 SCC 337.
8146. In Chairman, Board of Mining Examination and Chief Inspector of Mines & Anr. Vs. Ramjee, AIR 1977 SC 965 the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artefact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
47. In Union of India Vs. Tulsiram Patel, AIR 1985 SC 1416 the Hon‟ble Supreme Court held:-
"Though the two rules of natural justice, namely, nemojudex in causasua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible."
48. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in SohanLal Gupta &Ors. Vs. Asha Devi Gupta &Ors., (2003) 7 SCC 492; Mardia Chemicals Ltd. Vs. Union of India, AIR 2004 SC 2371 and Canara Bank Vs. Debasis Das, AIR 2003 SC 2041.
8249. In Hira Nath Mishra & Ors. Vs. The Principal, Rajendra Medical College, Ranchi &Anr. AIR 1973 SC 1260, the Hon‟ble Supreme Court held that principles of natural justice are not inflexible and may differ in different circumstances. Rules of natural justice cannot remain the same applying to all conditions.
50. The Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad Vs. B. Karunakar, AIR 1994 SC 1074 made reference to its earlier decisions and observed:-
"In A.K. Kraipak & Ors. Vs. Union of India &Ors., AIR 1970 SC 150, it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi- judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice."
(Emphasis added)"
51. The Hon‟ble Supreme Court in Bihar School Examination Board Vs. Subhas Chandra Sinha & Ors., AIR 1970 SC 1269 while considering the cancellation of the entire examination because of use of mass copy considered the scope of the principles of natural justice in such a matter and observed :-
83"It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go........."
52. After referring to the aforesaid decision, the Supreme Court in Chairman J&K State Board of Education Vs. Feyaz Ahmed Malik, AIR 2000 SC 1039, emphasized that the Board is entrusted with the duty of proper conduct of examinations.
53. In Biswa Ranjan Sahoo & Ors., Vs. Sushanta Kumar Dinda & Ors., AIR 1996 SC 2552, the Hon‟ble Supreme Court had the occasion to examine whether principles of natural justice were required to be followed in a matter where because of large scale malpractice in the selection process, the selection was cancelled and in this context it was observed:-
"Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment."
54. In Union of India &Ors. Vs. O. Chakradhar, AIR 2002 SC 1119, the Hon‟ble Supreme Court considered the question whether it was necessary to issue individual show cause notices to each selected person when the entire selection was cancelled because of widespread and all pervasive irregularities affecting the result of selection and it was observed:-
"The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable."84
55. In the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. &Ors., AIR 1994 SC 853, the Hon‟ble Supreme Court refused to interfere on the ground of breach of principles of natural justice by observing that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
56. It is further to be noted that the Court is to proceed as to whether non-
observance of any of the principles enshrined in statutory rules or principles of natural justice have resulted in deflecting the course of justice. Even, if in a given case, like the fact of the present case there may be some deviation but it has not resulted in grave injustice or has not prejudiced the cause of the petitioner because the decision taken by the respondent was based on the scientific report. This Court does not function as a Court of appeal on the finding of scientific report submitted by the experts. On examining the facts and circumstances of the present case, it cannot be held that the process adopted or decision made by the respondents is in anyway arbitrary or irrational or in any way in violation of the principles of natural justice. The conclusion is that the petition is devoid of merit and deserves to be dismissed.
57. Natural justice is at least as old as the first man created on earth - the biblical „Adam‟. J.R. Lucas in his book „On Justice‟ states (at page 86):
"Hence, when we are judging deeds, and may find that a man did wrong, there is a requirement of logic that we should allow the putative agent to correct misinterpretations or disavow the intention imputed to him or otherwise disown the action. God needed to ask Adam „Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat?‟ Because it was essential that Adam should not be blamed or punished unless he had done exactly that deed. If the serpent had planted the evidence, or if he had beguiled Adam into eating it under the misapprehension that it came from another, non-forbidden tree, then Adam had not sinned and should not have been expelled from Eden. Only if the accused admits the charge, or, faced with the accusation, cannot explain his behaviour 85 convincingly in any other way, are we logically entitled to conclude that he did indeed do it."
58. In some of the early judgments of this Court, the non-observance of natural justice was said to be prejudice in itself to the person affected, and proof of prejudice, independent of proof of denial of natural justice, was held to be unnecessary. The only exception to this rule is where, on "admitted or indisputable" facts only one conclusion is possible, and under the law only one penalty is permissible. In such cases, a Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because Courts do not issue writs which are "futile" - see S.L. Kapoor v. Jagmohan and Ors. (1980) 4 SCC 379 at paragraph 24. In P.D. Agrawal v. State Bank of India and Ors. (2006) 8 SCC 776, however, the Court observed that this statement of the law has undergone a "sea change", as follows:
"39. Decision of this Court in S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] whereupon Mr Rao placed strong reliance to contend that non-observance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decisions of this Court in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula."
(emphasis supplied) 86
59. Equally, the prejudice that is caused, apart from natural justice itself being denied, cannot be said to be present in a case in which there are admitted facts. Thus, in K.L. Tripathi v. State Bank of India and Ors. (1984) 1 SCC 43, the Court held:
"29. We are of the opinion that Mr. Garg is right that the rules of natural justice as we have set out hereinbefore implied an opportunity to the delinquent officer to give evidence in respect of the charges or to deny the charges against him. Secondly, he submitted that even if the rules had no statutory force and even if the party had bound himself by the contract, as he had accepted the Staff Rule, there cannot be any contract with a Statutory Corporation which is violative of the principles of natural justice in matters of domestic enquiry involving termination of service of an employee. We are in agreement with the basic submission of Mr. Garg in this respect, but we find that the relevant rules which we have set out hereinbefore have been complied with even if the rules are read that requirements of natural justice were implied in the said rules or even if such basic principles of natural justice were implied, there has been no violation of the principles of natural justice in respect of the order passed in this case. In respect of an order involving adverse or penal consequences against an officer or an employee of Statutory Corporations like the State Bank of India, there must be an investigation into the charges consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation. So whether a particular principle of natural justice has been violated or not has to be judged in the background of the nature of charges, the nature of the investigation conducted in the background of any statutory or relevant rules governing such enquiries. Here the infraction of the natural justice complained of was that he was not given an opportunity to rebut the materials gathered in his absence. As has been observed in On Justice by J.R. Lucas, the principles of natural justice basically, if we may say so, emanate from the actual phrase "audi alteram partem" which was first formulated by St. Augustine (De Duabus Animabus, XIV, 22 J.P. Migne, PL. 42, 110).
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32. The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon 87 the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement.
33. The party who does not want to controvert the veracity of the evidence from record or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross examination does not create any prejudice in such cases." (emphasis supplied)
60. Likewise, in State of U.P. v. Neeraj Awasthi and Ors. (2006) 1 SCC 667, this Court held that where, on undisputed facts, a retrenchment would be valid in law, the principles of natural justice would not be attracted, unless there is some stigma or punitive measure which would be attached, which would then cause prejudice, as follows:
"47. If the employees are workmen within the purview of the U.P. Industrial Disputes Act, they are protected thereunder. Rules 42 and 43 of the U.P. Industrial Disputes Rules provide that before effecting any retrenchment in terms of the provisions of Section 6-N of the U.P. Industrial Disputes Act, the employees concerned would be entitled to a notice of one month or in lieu thereof pay for one month and 15 days' wages for each completed year of service by way of compensation. If such a retrenchment is effected under the Industrial Disputes Act, the question of complying with the principles of natural justice would not arise. The principle of 88 natural justice would be attracted only when the services of some persons are terminated by way of a punitive measure or thereby a stigma is attached.
48. In Viveka Nand Sethi v. Chairman, J&K Bank Ltd. [(2005) 5 SCC 337] it was held: (SCC p. 345, para 22) "22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash [(2004) 5 SCC 263].] The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case."
49. The High Court, therefore, must be held to have erred in law in holding that the principles of natural justice were required to be complied with."
61. In the five-Judge Bench decision in Managing Director, ECIL and Ors. v. B. Karnakumar and Ors. (1993) 4 SCC 727, this Court, after discussing the constitutional requirement of a report being furnished under Article 311(2), held thus:
"30. Hence the incidental questions raised above may be answered as follows:
xxx xxx xxx [v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back- wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to 89 assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.
31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment." (emphasis supplied)
62. B. Karunakar (supra) was followed by this Court in Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja (2008) 9 SCC 31, as follows:
90"21. From the ratio laid down in B. Karunakar [(1993) 4 SCC 727] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside." (emphasis in original)
63. What is important to note is that it is the Court or Tribunal which must determine whether or not prejudice has been caused, and not the authority on an ex parte appraisal of the facts. This has been well explained in a later judgment, namely Dharampal Satyapal Ltd. v. Dy. Comm. Of Central Excise, Gauhati and Ors. (2015) 8 SCC 519, in which, after setting out a number of judgments, this Court concluded:
"38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as a necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory 91 rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.
39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason-- perhaps because the evidence against the individual is thought to be utterly compelling--it is felt that a fair hearing "would make no difference"--meaning that a hearing would not change the ultimate conclusion reached by the decisionmaker--then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578], who said that: (WLR p. 1595) "... A breach of procedure ... cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain."
Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [(1980) 1 WLR 582] that: (WLR p. 593) "... no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing."
In such situations, fair procedures appear to serve no purpose since the "right" result can be secured without according such treatment to the individual.
40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it 92 is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of "prejudice". The ultimate test is always the same viz. the test of prejudice or the test of fair hearing.
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42. So far so good. However, an important question posed by Mr Sorabjee is as to whether it is open to the authority, which has to take a decision, to dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference? To put it otherwise, can the administrative authority dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated? Answer has to be in the negative. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority.
This was so held by the English Court way back in the year 1943 in General Medical Council v. Spackman [1943 AC 627]. This Court also spoke in the same language in Board of High School and Intermediate Education v. Chitra Srivastava [(1970) 1 SCC 121], as is apparent from the following words: (SCC p. 123, para 7) "7. The learned counsel for the appellant, Mr C.B. Agarwala, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show-cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show-cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a show-cause notice before inflicting a penalty does not depend on 93 the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed."
43. In view of the aforesaid enunciation of law, Mr Sorabjee may also be right in his submission that it was not open for the authority to dispense with the requirement of principles of natural justice on the presumption that no prejudice is going to be caused to the appellant since the judgment in R.C. Tobacco [(2005) 7 SCC 725] had closed all the windows for the appellant.
44. At the same time, it cannot be denied that as far as courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken. This was so clarified in ECIL itself in the following words: (SCC p. 758, para 31) "31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court/tribunal comes to the conclusion that the non- supply of the report would have made no difference to the ultimate findings and the punishment given, the court/tribunal should not interfere with the order of punishment. The court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the courts/tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."
45. Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, 94 we have to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to show cause to the appellant. In the facts of the present case, we find that such an exercise would be totally futile having regard to the law laid down by this Court in R.C. Tobacco [(2005) 7 SCC 725]."
(emphasis supplied)
64. In State Bank of Patiala and Ors. v. S.K. Sharma (1996) 3 SCC 364, a Division Bench of the Court distinguished between "adequate opportunity" and "no opportunity at all", and held that the "prejudice" exception operates more especially in the latter case. This judgment also speaks of procedural and substantive provisions of law which embody the principles of natural justice which, when infracted, must lead to prejudice being caused to the litigant in order to afford him relief, as follows:
"32. Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counterproductive exercise.
33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the 95 Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed.
Except cases falling under -- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
96(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar [(1993) 4 SCC 727]. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice -- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it „void‟ or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is 97 whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."
65. In M.C. Mehta v. Union of India and Ors. (1999) 6 SCC 237, the expression "admitted and indisputable facts" laid down in Jagmohan (supra), as also the interesting divergence of legal opinion on whether it is necessary to show "slight proof" or "real likelihood" of prejudice, or the fact that it is an "open and shut case", were all discussed in great detail as follows:
"16. Courts are not infrequently faced with a dilemma between breach of the rules of natural justice and the Court's discretion to refuse relief even though the rules of natural justice have been breached, on the ground that no real prejudice is caused to the affected party.
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22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case- law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of "real substance" or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed. See Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578] (per Lord Reid and Lord Wilberforce), Glynn v. Keele University [(1971) 1 WLR 487], Cinnamond v. British Airports Authority [(1980) 1 WLR 98 582] and other cases where such a view has been held. The latest addition to this view is R. v. Ealing Magistrates' court, ex p Fannaran [(1996) 8 Admn LR 351, 358] (Admn LR at p. 358) (see de Smith, Suppl. p. 89) (1998) where Straughton, L.J. held that there must be "demonstrable beyond doubt" that the result would have been different. Lord Woolf in Lloyd v. McMahon [(1987) 2 WLR 821, 862] (WLR at p. 862) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant [1959 NZLR 1014] however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is "real likelihood -- not certainty -- of prejudice". On the other hand, Garner Administrative Law (8th Edn., 1996, pp. 271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin [1964 AC 40], Megarry, J. in John v. Rees [(1969) 2 WLR 1294] stating that there are always "open and shut cases" and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J. has said that the "useless formality theory" is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that "convenience and justice are often not on speaking terms". More recently Lord Bingham has deprecated the "useless formality" theory n R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton [1990 IRLR 344] by giving six reasons. (See also his article "Should Public Law Remedies be Discretionary?" 1991 PL, p. 64.) A detailed and emphatic criticism of the "useless formality theory" has been made much earlier in "Natural Justice, Substance or Shadow" by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch [(1971) 1 WLR 1578] and Glynn [(1971) 1 WLR 487] were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision- making authority de Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a "real likelihood" of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their "discretion", refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364], Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.
23. We do not propose to express any opinion on the correctness or otherwise of the "useless formality" theory and leave the matter for decision in an appropriate case, inasmuch as, in the case before 99 us, "admitted and indisputable" facts show that grant of a writ will be in vain as pointed out by Chinnappa Reddy, J."
66. In Aligarh Muslim University and Ors. v. Mansoor Ali Khan (2000) 7 SCC 529, the aforesaid authorities were relied upon, and the answer given was that there is no absolute rule, and prejudice must be shown depending on the facts of each case, as follows:
"24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India [(1984) 1 SCC 43] Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp. 472-
75), as follows: (SCC p. 58, para 31) "[I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ...
There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth."
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364]. In that case, the principle of "prejudice" has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. [(1996) 5 SCC 460]
25. The "useless formality" theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, 100 Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
67. In Union of India and Ors. v. Alok Kumar (2010) 5 SCC 349, this Court, after eschewing a hyper-technical approach, held that prejudice must not merely be the apprehension of a litigant, but should be a definite inference of the likelihood of prejudice flowing from the refusal to follow natural justice, as follows:
"83. Earlier, in some of the cases, this Court had taken the view that breach of principles of natural justice was in itself a prejudice and no other "de facto" prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the rule is merely directory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of the non-mandatory rules or violation of natural justice as it is understood in its common parlance. Taking an instance, in a departmental enquiry where the department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof.
xxx xxx xxx
87. In ECIL v. B. Karunakar [(1993) 4 SCC 727] this Court noticed the existing law and said that the theory of reasonable opportunity 101 and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are neither incantations to be invoked nor rites to be performed on all and sundry occasions. Whether, in fact, prejudice has been caused to the employee or not on account of denial of report to him, has to be considered on the facts and circumstances of each case. The Court has clarified even the stage to which the departmental proceedings ought to be reverted in the event the order of punishment is set aside for these reasons.
88. It will be useful to refer to the judgment of this Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja [(2008) 9 SCC 31] at pp. 38-39 where the Court held as under: (SCC para 21) "21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the enquiry officer's report to the delinquent if such enquiry officer is other than the disciplinary authority. It is also clear that non- supply of report of the enquiry officer is in breach of natural justice. But it is equally clear that failure to supply a report of the enquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside."
89. The well-established canons controlling the field of bias in service jurisprudence can reasonably be extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates to statutory violations. It will not be permissible to set aside the departmental enquiries in any of these classes merely on the basis of apprehended prejudice."
68. Under the broad rubric of the Court not passing futile orders as the case is based on "admitted" facts, being admitted by reason of estoppel, 102 acquiescence, non-challenge or non-denial, the following judgments of this Court are all illustrations of a breach of the audi alteram partem rule being established on the facts of the case, but with no prejudice caused to the person alleging breach of natural justice, as the case was one on admitted facts:
(i) Punjab and Sind Bank and Ors. v. Sakattar Singh (2001) 1 SCC 214 (see paragraphs 1, 4 and 5);
(ii) Karnataka SRTC and Anr. v. S.G. Kotturappa and Anr.
(2005) 3 SCC 409 (see paragraph 24);
(iii) Viveka Nand Sethi v. Chairman, J&K Bank Ltd. and Ors.
(2005) 5 SCC 337 (see paragraphs 21, 22 and 26);
(iv) Mohd. Sartaj and Anr. v. State of U.P. and Ors. (2006) 2 SCC 315 (see paragraph 18);
(v) Punjab National Bank and Ors. v. Manjeet Singh and Anr.
(2006) 8 SCC 647 (see paragraphs 17 and 19);
(vi) Ashok Kumar Sonkar v. Union of India and Ors. (2007) 4 SCC 54 (see paragraphs 26 to 32);
(vii) State of Manipur and Ors. v. Y. Token Singh and Ors.
(2007) 5 SCC 65 (see paragraphs 21 and 22); (viii) Secretary, A.P. Social Welfare Residential Educational Institutions v. Pindiga Sridhar and Ors. (2007) 13 SCC 352 (see paragraph 7)
(viii) Peethani Suryanarayana and Anr. v. Repaka Venkata Ramana Kishore and Ors. (2009) 11 SCC 308 (see paragraph 18);
(ix) Municipal Committee, Hoshiapur v. Punjab State Electricity Board and Ors. (2010) 13 SCC 216 (see paragraphs 31 to 36, and paragraphs 44 and 45);
(x) Union of India and Anr. v. Raghuwar Pal Singh (2018) 15 SCC 463 (see paragraph 20).
69. An analysis of the aforesaid judgments thus reveals:
(1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.103
(2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.
(3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-
challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
(4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
(5) The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-
observance of natural justice.
70. In view of the above, we are of the view that local administrative authorities had conducted the public consultations by the available means and the contention as raised by the applicant that there are no public consultation has no relevance. Issue is resolved accordingly.
104O. CONCLUSIONS
71. In view of the above observation and discussion and the consideration by the expert body, we are of the view that proper and sufficient technical studies to the satisfaction of the EAC was made and after that it was recommended to the MoEF&CC. The validity and sufficiency of the same have not been questioned by the MoEF&CC or for that matter anybody except the appellant and that too in vacuum without any basis. The EAC Members are expert in their domain field. They appraised the proposal before the EAC, through scrutiny and detailed deliberations are done by the Members. Therefore, the deliberations taken place in the EAC meeting are always of technical nature. The objections and clarification of the Project Proponent is fully complied on the various issues raised by the EAC Members and the proposal was recommended for grant of EC. The preposition that EAC findings cannot be questioned by anybody have found place in the following case laws :
A. Rajeev Suri v. Delhi Development Authority [2021 SCC OnLine SC 7] "494. The minutes of the two meetings of EAC are self-
explanatory and reveal due application of mind, in light of the principles relating to application of mind enunciated above. We do not wish to repeat the same to avoid prolixity. EAC is an expert body and it is amply clear that it has been made aware of all relevant information relating to the project and it has applied its mind to the proposal. Even on settled principles of judicial review, it is clear that relevant material has been considered by the committee and no reliance has been pointed out on any irrelevant material. The specific recommendations given by the committee do indicate that the committee was aware of the need for precautionary measures in environmental matters and accordingly, it suggested requirement of further permissions on certain counts.
105495. Once an expert committee has duly applied its mind to an application for EC, any challenge to its decision has to be based on concrete material which reveals total absence of mind. Absent that material, due deference must be shown to the decisions of experts. The facts of the case do not reveal any deliberate concealment of fact/information from the EAC or supply of any misinformation....
515. We, therefore, upon a thorough examination, decline to interfere in the grant of EC. The expertise developed by the EAC cannot be undermined in a light manner and as noted above, due deference must be accorded to expert agencies when their 384 decisions do not attract the taint of legal unjustness".
B. N.D. Jayal & Anr. vs. Union of India [2004 (9) SCC 362]: A 3- Judge Bench of the Hon'ble Supreme Court emphasized the exercise of judicial restraint in matters involving technical expertise.
20. This Court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts in science may themselves differ in their opinions while taking decisions on matters related to safety and allied aspects. The opposing viewpoints of the experts will also have to be given due consideration after full application of mind. When the Government or the concerned authorities after due consideration of all viewpoints and full application of mind took a decision, then it is not appropriate for the Court to interfere. Such matters must be left to the mature wisdom of the Government or the implementing agency. It is their forte. In such cases, if the situation demands, the Courts should take only a detached decision based on the pattern of the well settled principles of administrative law. If any such decision is based on irrelevant consideration or non consideration of material or is thoroughly arbitrary, then the Court will get in the way. Here the only point to consider is whether the decision making agency took a well informed decision or not. If the answer is yes then there is no need to interfere. The consideration in such cases is in the process of decision and not in its merits.
10621. In this context, reliance is sought to be placed on the decision of this Court in A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors. , 1999 (2) SCC 718. In that decision, this Court viewed that in scientific matters of complex nature resulting in uncertainty, reference has to be made to a specialised technical/expert body and not merely decide the matter on well known principles of administrative law of court not reexamining the matter if all relevant considerations have been taken note of. In the present case when once a decision had been given by this Court on safety aspects on an earlier occasion and thereafter the matter was again examined by the Government through different agencies and had taken a decision as to the necessity of further test by way of abundant caution should be relevant or not, we do not think, we can sit in judgment over such decision, particularly when there is no difference of opinion among the Experts as to the safety of the dam. .....
C. Sam Built Well Private Limited vs Deepak Builders [2018 (2) SCC 176]: This judgement was rendered by the Hon‟ble Supreme Court in the context of judicial review of tenders. However, several observations were made qua exercising judicial restraint in matters involving technical expertise.
12. We have already noticed that three expert committees have scrutinized Respondent No.1s tender and found Respondent No.1 to be ineligible. The impugned judgment of the Division Bench of the High Court expressly states that no malafides are involved in the present case. Equally, while setting aside the judgment of the learned Single Judge, the Division Bench does not state that the three expert committees have arrived at a perverse conclusion. To merely set aside the judgment of the learned Single Judge and then jump to the conclusion that Respondent No.1s tender was clearly eligible, would be directly contrary to the judgments aforestated. Not having found malafides or perversity in the technical expert reports, the principle of judicial restraint kicks in, and any appreciation by the Court itself of technical evaluation, best left to technical experts, would be outside its ken. As a result, we find that the learned Single Judge was correct in his reliance on the three expert committee reports. The Division Bench, in setting aside the aforesaid judgment, has clearly gone outside the 107 bounds of judicial review. We, therefore, set aside the judgment of the Division Bench and restore that of the learned Single Judge.
D. Bombay Environmental Action Group vs State of Maharashtra [1990 SCC OnLine Bom 357]: The Hon‟ble High Court of Bombay made several observations discouraging judicial interference in technical matters pertaining to the environment.
16. The, petitioners, as public spirited organisations and citizens, have, through their respective Counsel, done their duty by invoking this Courts writ jurisdiction and placing before us all such facts and circumstances as considered best by them. We in our turn, have done our duty by carefully examining all the facts and circumstances in the context of the rival contentions advanced before us on either side. In the course of this elaborate exercise and at every stage of the judicial process, we have kept asking ourselves the question -- Have the authorities shown such lack of awareness or have they been so oblivious of the needs of environment as to warrant Courts interference? We do not think so. On the contrary, considerable though deliberation, consultation and application of mind by all concerned authorities and experts has gone into the decision making process. We find on the part of the authorities, and experts all the seriousness while considering and deciding upon the varied factors and circumstances including environment in relation to this project. The indepth analysis, the conditions imposed and the precautions taken inspire Courts confidence and, if, at the end of it all, the Court finds that a very conscious decision has been taken in the light of all possible pros and cons, it would then not interfere. The decision of the authorities cannot be said to be arbitrary or capricious or one not in good faith or actuated by improper motive or extraneous considerations.
17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmental safe-guards have been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the 108 environmentalists, the State and the Central authorities and expert-bodies is undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counterproductive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further.
72. In view of the above facts, we find that the matter was referred to the Expert Committee i.e., Central Mine Planning and Design Institute Limited (CMPDIL), which is a subsidiary of Coal India Ltd, which is a Central Public Sector Undertaking under Ministry of Coal, Government of India, accredited by QCI and the agency is registered consultant to World Bank, Asian Development Bank, African Development Bank and other international agencies, which has been disclosed in chapter 12th of the report and the expert body considered the projected description, geology, infrastructure, power supply arrangement, Core zone, existing environmental scenario, ambient air quality, water quality scenario, noise level, flora and fauna and impact assessment on socio economic and mitigation measures and after analysis submitted the report which was placed before the EAC and was discussed and decided according to the rules.
73. There was a due public consultation with intimation to all concerned and we see no irregularity or illegality in the order impugned, thus, the Appeal & I.As are devoid of any merit and deserve to be dismissed and accordingly, dismissed.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 09th March, 2022 Appeal No. 06/2020(CZ) PU, PN & K 109