National Green Tribunal
Nature Club Of Rajasthan Ngo vs The Union Of India131 on 13 September, 2018
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
[
Original Application No. 186/2016
(M.A. No. 350/2016)
And
Original Application No. 200/2016
And
Original Application No. 580/2016
(M.A. No. 1182/2016)
And
Original Application No. 102/2017
And
Original Application No. 404/2016
(M.A. No. 758/2016, M.A. No. 920/2016,
M.A. No. 1122/2016, M.A. No. 12/2017 & M.A. No. 843/2017)
And
Original Application No. 405/2016
And
Original Application No. 520 of 2016
(M.A. No. 981/2016, M.A. No. 982/2016 & M.A. No. 384/2017)
IN THE MATTERS OF:
Satendra Pandey
Vs.
Ministry of Environment, Forest & Climate Change & Anr.
And
Rajeev Suri Vs. Union of India
And
Badal Singh Vs. Union of India & Ors.
And
Nature Club of Rajasthan (NGO) Vs. Union of India & Ors.
And
Naresh Zargar Vs. Ministry of Environment & Forest and Anr.
And
Rajeev Suri Vs. Union of India & Anr.
And
Vikrant Tongad Vs. Union of India
CORAM : HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE DR. JUSTICE JAWAD RAHIM, JUDICIAL MEMBER
HON'BLE MR. JUSTICE S.P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Present: Applicant: Mr. Rahul Choudhary and Ms. Meera Gopal,
Advs. in Original Application No. 388/2018
Respondents Mr. Divya Prakash Pande, Adv. for Ministry of
Environment, Forest and Climate Change Dr. Abhishek Atrey, Adv. for Ministry of Environment, Forest and Climate Change Mr. Amit Tiwari, Adv. for State of Uttar Pradesh Mr. Ashok Kumar Sharma and Mr. Kshitij Mudgal, Advs.
Mr. V.K. Shukla, and Ms. Vijay Lakshmi, Advs. for State of MP, State Environment Impact Assessment Authority & Mining Corporation Mr. Rahul Pratap, Adv. for Ministry of Environment, Forest and Climate Change Mr. Shiv Mangal Sharma, AAG with Mr. Saurabh Rajpal and Mr. Vikramjeet Singh, Advs. for State of Rajasthan 1 Date and Orders of the Tribunal Remarks Item Nos.
07 to 14 1. By this application, the applicant has sought to September assail Notifications dated 15.01.2016, 20.01.2016 and 13, 2018 DV & AT 01.07.2016 amending the EIA Notification dated 14.09.2006 on the ground that the procedure for obtaining Environmental Clearance in respect of mining of minor minerals for areas from 0 to 25 ha has been diluted by bringing it within B-2 category projects and exempting such category from Public Consultation, Environment Impact Assessment (EIA) and Environment Management Plan (EMP) which was in contravention of the judgment of the Hon'ble Supreme Court in Deepak Kumar Vs. State of Haryana & Ors.: (2012) 4SCC 629 and also of this Tribunal in Original Application No. 123 of 2014 dated 13.01.2015.
2. The crux of the case of the applicant is that while in Deepak Kumar case (supra) it had been held that all mining leases in respect of its size would require to obtain Environmental Clearance and be subjected to strict regulatory framework as that of all major minerals, the impugned Notifications, more particularly 15.01.2016, exempts the necessity of having EIA and Public Consultation for areas upto 25 ha.
3. According to the applicant the impugned Notification dated 15.01.2016 provided exemption of the rigors of the necessity of EIA and EMP even for areas ranging from 5 to 25 ha when in the earlier Notifications it was necessary from 5 to 50 ha. It was contended that the Hon'ble Supreme Court had expressed its concern on 2 dispensing with the necessity of obtaining Environmental Clearance and the other requirements cognate thereto for Item Nos.
07 to 14 areas less than 5 ha in the case of Deepak Kumar (supra). September 13, 2018 DV & AT
4. Further contention was that B-category as it stood originally, was broken to B-1 and B-2 categories by bringing areas of mining of minerals from 25 ha to 50 ha within B-1 category and 0 to 25 ha as B-2 category. For B- 2 category, the authority prescribed for grant of Environmental Clearance is now the District Environment Impact Assessment Authority (DEIAA) which would base its decision on the recommendations of District Expert Appraisal Committee (DEAC).
5. Further contentions of the applicant in assailing the Notification dated 15.01.2016 are as follows:
a) Form-1M prescribed in the impugned Notification dated 15.01.2016, required to be submitted for mining of minor minerals upto 5 ha under Category B-2 projects provided in Appendix-VII, is generic seeking only basic details pertaining to the lease holder and the mine with perfunctory information on the environmental effect of the project which was in contrast to Form-1 which is required to be filled up for all other categories which is comprehensive seeking detailed information on environmental implications of the project.
b) B-2 projects of 0 - 5 ha under individual and cluster category are exempted from requirements of preparing an Environment Impact Assessment 3 Report (EIA) and Environment Management Plan (EMP) and those greater than 5 ha and less than Item Nos.
07 to 14 or equal to 25 ha are exempted from preparing September 13, 2018 Environment Impact Assessment Report (EIA) DV & AT both with respect to individual Mine Lease and cluster situation. No such exemption has been provided in para 7 (i) of the EIA Notification, 2006 under Stage (2) - Scoping which stipulates such requirement, but it has been done away with now at Appendix-XI of Notification dated 15.01.2016.
c) EIA/EMP is an integral and most critical component of Environmental Clearance as it is only through the EIA that the potential impacts and risks of a project can be assessed and mitigation measures formulated and adopted in the EMP. By exempting EIA/EMP, critical environmental aspects like anticipated environmental impacts, mitigation measures and additional studies involving public consultation, risk assessment, social impact assessment and rehabilitation and resettlement action plans, stand exempted. These requirements provided under Appendix-III, defeats the very purpose of the Notification and the Environment (Protection) Act, 1986.
d) The District Level Environment Impact Assessment Authority (DEIAA) and District Level Expert Appraisal Committee (DEAC) comprises mostly of officers/bureaucrats who have no 4 expertise and scientific knowledge to assess Item Nos.
environmental implications, and have been 07 to 14 September conferred with excessive and uncanalized power 13, 2018 devoid of any guidelines. Even the power to DV & AT appoint the Expert Members vested upon the authorities in the DEIAA and DEAC are unguided whereas there is an extensive elaborations with regard to qualifications, skill sets and competencies for the members of SEAC and SEIAA.
6. Based, inter-alia, upon the aforesaid grounds, the applicant seeks a direction for quashing the impugned Notifications.
7. Mr. Divya Prakash Pande, Ld. Counsel for MoEF&CC in his arguments, at the outset, raised objection as to the maintainability of the application on the ground of jurisdiction of the Tribunal to grant relief for quashing the impugned notifications. It is contended that the decision of this Court in the case of S.P. Muthuraman v. Union of India, in O.A. No. 676 of 2017 (Earlier O.A. No. 37/2015) whereby the Tribunal has held that it had the jurisdiction to pass such orders has since been challenged before the Hon'ble Supreme Court in Civil Appeal No. 7191-7192 of 2015 and is yet to be decided and, by implication of the orders passed by the Hon'ble Supreme Court, operation of the impugned judgement stands stayed.
8. On the merits of the application, it is submitted that Notification dated 15th January, 2016 which is sought to 5 be assailed, had been passed by the MoEF&CC in exercise Item Nos.
of its powers conferred by sub-section (1) and clause (v) of 07 to 14 September sub-section (2) of section 3 of the Environment (Protection) 13, 2018 Act, 1986 read with clause (d) of sub-rule (3) of Rule 5 of DV & AT the Environment (Protection) Rules, 1986. The notification was issued after due deliberations with various stakeholders and the State Governments over the draft notification in respect thereof issued on 22nd September, 2015 and, after a committee constituted vide letter dated 3rd December, 2015 to examine the comments/suggestions submitted by them, had submitted its report. The impugned Notification provides for DIEAA/DEAC in the districts which also includes appointment of Officers/bureaucrats as experts in the two bodies. The impugned Notification is further justified by the Learned Counsel contending that as the Executive Engineer, Irrigation Department has been made part of the DEAC as he deals with the rivers and canals in the district and, therefore, has the best information and knowledge about sand and gravel deposits in the districts. The Forest Department officials are also part of these committees who have the ability to do value addition in forest areas or areas adjoining the forest having deposits of minor minerals.
9. Upon consideration of the fact and circumstances set out in the original application and upon hearing the Ld. Counsel for parties, we find that the impugned Notification dated 15th January, 2016 is not consistent with the decision of the Hon'ble Supreme Court in the case of Deepak Kumar (supra). We find substance in the 6 submissions of the Ld. Counsel for the applicant that Item Nos.
07 to 14 while breaking category B of the mines to B-1 & B-2 may September not per se be bad, it certainly dilutes the stringent 13, 2018 DV & AT requirement of lease areas upto 25 ha being exempted from the necessity of submitting EIA and EMP for grant of Environmental Clearance. It is undisputed that the impugned Notification is issued with the object to comply with the directions passed in the case of Deepak Kumar (supra). This case had arisen as the EIA Notification dated 14th September, 2006 was being flouted by breaking homogenous areas into pieces of less than 5 ha in the States of Uttar Pradesh, Rajasthan and Haryana, as the notification then did not require Environmental Clearance for areas less than 5 ha. The Hon'ble Supreme Court after noting the serious deleterious effect of quarrying, mining and removal of sand in-stream and up-stream of rivers to the environment, in paragraphs 9 and 10 (of SCC), held as follows:
"9. Extraction of alluvial material from within or near a streambed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, in-stream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both in-stream biota and the associated riparian habitat. The demand for sand continues to increase day by day as building and construction of new infrastructures and expansion of existing ones is continuous thereby placing immense pressure on the supply of the sand resource and hence mining activities are going on legally and illegally without any restrictions.
Lack of proper planning and sand management cause disturbance of marine ecosystem and also upset the ability of natural marine processes to replenish the sand.
10. We are expressing our deep concern since we are faced with a situation where the 7 auction notices dated 3-6-2011 and 8-8-2011 have permitted quarrying mining and removal Item Nos.
of sand from in-stream and upstream of 07 to 14 several rivers, which may have serious September environmental impact on ephemeral, seasonal 13, 2018 and perennial rivers and river beds and sand extraction may have an adverse effect on bio- DV & AT diversity as well. Further it may also lead to bed degradation and sedimentation having a negative effect on the aquatic life. The rivers mentioned in the auction notices are on the foothills of the fragile Shivalik hills. Shivalik hills are the source of rivers like Ghaggar, Tangri, Markanda etc. River Ghaggar is a seasonal river which rises up in the outer Himalayas between Yamuna and Satluj and enters Haryana near Pinjore, District Panchkula, which passes through Ambala and Hissar and reaches Bikaner in Rajasthan. River Markanda is also a seasonal river like Ghaggar, which also originates from the lower Shivalik hills and enters Haryana near Ambala. During monsoon, this stream swells up into a raging torrent, notorious for its devastating power, as also, river Yamuna.
11. We find that it is without conducting any study on the possible environmental impact on/in the river beds and elsewhere the auction notices have been issued. We are of the considered view that when we are faced with a situation where extraction of alluvial material within or near a riverbed has an impact on the rivers physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity, it is not an answer to say that the extraction is in blocks of less than 5 hectares, separated by 1 km, because their collective impact may be significant, hence the necessity of a proper environmental assessment plan."
10. The Hon'ble Supreme Court also took note of the fact that the MoEF&CC had constituted a Core Group under the Chairmanship of the Secretary (Environment & Forest) to look into the environment aspects associated with mining of the minor minerals vide order dated 24th March, 2009 with specific terms and conditions. The Core Group after consideration of various issues including cluster of mine approach for addressing and implementing EMP in case of small mines, submitted a report on 29th 8 January, 2010 with the recommendation to permit mining Item Nos.
of minor minerals under strict regulatory regime and 07 to 14 September carried out only under an approved framework of mining 13, 2018 plan which should provide for reclamation and DV & AT rehabilitation of mine areas. For smaller mine lease areas a cluster approach was recommended. It was directed that the States should adopt the recommendations and the model guidelines framed by the Ministry of Mines, namely the Model Rules, 2010.
11. In pursuance of the directions, the impugned Notification dated 15th January, 2016 was ultimately issued. The MoEF&CC Notification dated 14th December, 2006 as it stood earlier prescribed for two categories of projects and activities as Category A and Category B based on the spatial extent of potential impacts, potential impacts on human health and natural and man-made resources. Stage (1)-Screening that provides for Category 'B' projects or activities, entail scrutiny of an application seeking prior Environment Clearance made in Form 1 by the concerned State Level Expert Appraisal Committee (SEAC) for determining whether or not the project or activity requires further environmental studies for preparation of EIA for appraisal prior to grant of Environment Clearance depending upon the nature and location specificity of the project. It further provides that the project requiring EIA report would be termed as Category 'B-1' and remaining projects as Category 'B-2' that would not require EIA report. Discretion to make such categorization was left upon the MoEF&CC and to issue appropriate guidelines from time to time. This 9 provision was a subject matter of challenge in the case of Item Nos.
07 to 14 Himmat Singh Shekhawat v. State of Rajasthan, 2015 ALL September (I) NGT Reporter (1) DEL 44 by which it was upheld as 13, 2018 DV & AT having been issued by the Ministry as a Subordinate Legislation. However, the office memorandums dated 24th June, 2013 and 24th December, 2013 prohibiting grant of Environment Clearance to the mine areas of less than 5 ha was quashed as being in conflict with the aforesaid provision.
12. The only contention that require for us to consider in this case is as to whether the Notification dated 15th January, 2016 would satisfy the spirit of the directions issued in the case of Deepak Kumar (supra). As already noted, EIA Notification dated 14th September, 2006 under the Schedule provided thereto require all mining lease area of equal to and up to 50 ha to seek Environment Clearance requiring to submit EIA for appraisal from the SEIAA.
13. The impugned Notification dated 15th January, 2016, however, would clearly indicate that Category B has been split into category B1 and B2 and again, category B2 has been further split into areas of 0-5 ha and 5-25 ha. While 0-5 ha has been exempted from the requirement of EIA/Public Consultation, such exemption has also been provided even for mining areas of 5 ha to 25 ha with the DEAC and the DEIAA as the prescribed authority for evaluation and grant of Environmental Clearance. Category B-1 being mining areas of 25 ha to 50 ha, the authorities prescribed are the SEAC and SEIAA. For falling in excess of 50 ha being Category-A, it is the EAC and the 10 MoEF&CC.
Item Nos.
14. The procedure for grant of the Environment 07 to 14 September Clearance by the DEIAA for areas between 0 to 5 ha falling 13, 2018 under Category 'B-2' is found prescribed in paragraphs 6, DV & AT 7(iii) (a) and 7(iii) (b) of the impugned Notification read with appendices VIII, X and XI. The Schematic Presentation of Requirement of Environment Clearance of Minor Minerals including cluster situation provided in a table to Appendix XI would substantiate indubitably that even for areas between 5 to 25 ha, no EIA and Public Hearing is required and in cluster situation also, the requirement of EIA and Public Hearing have been exempted.
15. Introduction of such procedure, in our view, is clearly not consistent with the directions contained in the case of Deepak Kumar (supra) and the spirit behind such direction. By the provision, mining area upto from 5 ha to 25 ha has been completely exempted from the EIA and Public Consultation. For areas of 5 ha and below, apart from the exemption, it has been made only subject to a separate procedure of preparing a District Survey Report (DSR). These provisions quite apparently are more mine- centric rather than striving a balance between mining and environment especially with regard to Form-1M which needs to be made more elaborate incorporating environment related aspects.
16. The Sustainable Sand Mining Management Guidelines, 2016 prepared by the MoEF&CC has also deprecated the procedure as will appear from below which 11 is contained in the chapter on "The Issues and Item Nos.
Management of Mining in Cluster":-
07 to 14 September "It is seen that the categorization of mines 13, 2018 into 'B1' and 'B2' category in which Category 'B2' leases are being exempted from the DV & AT requirement of Environment Impact Assessment, Environment Management Plan, and Public Consultation for grant of EC, in many cases now the mining leases are being given for 25 hectares or less. This defeats the purpose and intent of Hon'ble Supreme Court Judgment which orders environment clearance for all mining leases irrespective of size. The environment clearance without Environment Impact Assessment, Environment Management Plan, and Public Consultation does not serve the purpose of environment clearance which is to ensure environmentally sustainable and socially responsible mining. So if a cluster or individual lease size exceeds 5 hectare, the EIA/ EMP should be completed in the process of grant of prior environment clearance."
17. Thus, even according to the Sustainable Sand Mining Management Policy issued by the MoEF&CC by dispensing with Public Hearing, the judgment of the Hon'ble Supreme Court in the case of Deepak Kumar (supra) will stand defeated.
18. We also find that parameters for consideration while preparing District Mining Plan (DMP) and District Survey Report (DSR) are only for the purpose of ascertaining whether an area is fit for mining which are quite different from the parameters laid down for EIA. The consideration of the view point of the public by keeping DSR in public domain is not a substitute of Public Hearing for consideration of the view point of the public for EIA.
19. With specific reference to mining in cluster, the Report of the Committee of Secretaries, Ministry of Environment, Forest and Climate Change, 2010 recommended as follows:
12
"Considering the nature of occurrence of minor mineral, economic condition of the lessee and the likely difficulties to be faced by Regulatory Item Nos.
07 to 14 Authorities in monitoring the environmental impacts and implementation of necessary September mitigation measures, it may be desirable to adopt 13, 2018 cluster approach in case of smaller mine leases DV & AT being operated presently."
20. This report which is a part of the Sustainable Sand Mining Management Guidelines, 2016 finds reinforcement in the Chapter "The Issues and Management of Mining in Cluster" referred to earlier where it has inter-alia been recommended as under:
"The Hon'ble Supreme Court, NGT, SEAC/EAC and the Project Proponents have raised issue of cluster in mine lease allotment and environment clearance for the same, so following conditions need to be ensured for cluster of mines:
1. To address the concern of adverse impact of minor mineral mining on environment it is proposed that all mining activity including river sand mining (above 5 hectare individual or cluster) will need to prepare Environment Impact Assessment Report and Environment Management Plan before grant of environment clearance.
These reports (EIA /EMP) can be prepared by the State or State nominated Agency / the Project Proponent (s).
2. As can be seen from the data provided by the States most of the mining leases for minor minerals are of lease area less than 5 hectare. It is also reported that in hill states getting a stretch in river with area more than 5 hectare is very uncommon. So the size of lease for minor minerals including river sand mining will be determined by the States as per their circumstances.
3. The EIA Notification, 2006 does not provide for cluster EC, it provides for issuance of EC to individual project proponents and the same has also been upheld in the judgment of Hon'ble Supreme Court in Vijay Bansal vs. State of Haryana case. So EC will have to be applied for and issued to the individual project proponent.
4. A cluster shall be formed when the distance between the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area.
5. The mining of minor minerals is mostly in clusters. The Environment Impact Assessment or Environment Management 13 Plan are required to be prepared for the entire cluster in order to capture all the possible externalities. These reports shall Item Nos. capture carrying capacity of the cluster, 07 to 14 transportation and related issues, replenishment and recharge issues, geo- September hydrological study of the cluster area. The 13, 2018 Environment Impact Assessment or DV & AT Environment Management Plan shall be prepared by the State or State nominated Agency or group of project proponents in the Cluster or the project proponent in the cluster.
6. The individual lease holders in cluster can use the same Environment Impact Assessment or Environment Management Plan for application for environmental clearance. The cluster Environment Impact Assessment or Environment Management Plan shall be updated as per need keeping in view any significant change.
7. There shall be one public consultation for entire cluster after which the final Environment Impact Assessment or Environment Management Plan report for the cluster shall be prepared.
8. The details of cluster Environment Impact Assessment or Environment Management Plan shall be reflected in each environmental clearance in that cluster and District Expert Appraisal Committee (DEAC), SEAC, and EAC shall ensure that the mitigative measures emanating from the Environment Impact Assessment or Environment Management Plan study are fully reflected as environmental clearance conditions in the environmental clearance's of individual project proponents in that cluster.
9. .............................................................
10. .............................................................
11. ............................................................."
21. Dispensing with the requirement of Public Hearing which forms a part of the Public Consultation under Stage-III of the Environmental Clearance process under EIA Notification, 2006 for areas measuring 0 to 25 ha for individual mine areas and in cluster situation where public hearing has been provided, has resulted in gross dilution of EIA Notification dated 14th September, 2006. Such dilution would, in our view, result in its misuse by unscrupulous elements and the situation would revert 14 back to the lawless state prevailing prior to the decision in the case of Deepak Kumar (supra). Stringent measures Item Nos.
07 to 14 are, therefore, necessary if the rampant exploitation of the September 13, 2018 minor minerals is to be curbed. This apparently was also DV & AT the view of the Hon'ble Supreme Court in the case of Deepak Kumar (supra).
22. For all these reasons, we direct that the procedure laid down in the impugned Notification be brought in consonance and in accord with the directions passed in the case of Deepak Kumar (supra) by (i) providing for EIA, EMP and therefore, Public Consultation for all areas from 5 to 25 ha falling under Category B-2 at par with Category B-1 by SEAC/ SIEAA as well as for cluster situation wherever it is not provided; (ii) Form-1M be made more comprehensive for areas of 0 to 5 ha by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant EC by SEIAA instead of DEAC/DEIAA; (iii) if a cluster or an individual lease size exceeds 5 ha the EIA/EMP be made applicable in the process of grant of prior environmental clearance; (iv) EIA and/or EMP be prepared for the entire cluster in terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendations 6, 7 and 8 thereof; (v) revise the procedure to also incorporate procedure with respect to annual rate of replenishment and timeframe for replenishment after mining closure in an area; (vi) the MoEF&CC to prepare guidelines for calculation of the cost of restitution of damage caused to mined-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining. 15
23. We have permitted retention of 0-5 ha as a category keeping in view that some States grant isolated single Item Nos.
07 to 14 lease of 5 ha and less not falling in cluster situation for September which stringent requirements in Form-1M will serve the 13, 2018 DV & AT purpose of providing safeguards for protection of the environment and sustainable mining of minor minerals. This is particularly true in smaller and mountainous States as will also appear from condition no. 2 under "The Issues and Management of Mining in Cluster" referred to earlier in para 20 of this order.
24. It is reiterated that any attempt to split the lease area for the purpose of avoiding the applicable regulatory regime shall be viewed seriously. This in our view will be in the interest of the environment as deliberated in detail in the case of Deepak Kumar (supra) and would also satisfy the Precautionary Principle and the Principle of Sustainable Development contemplated under Section 20 of the National Green Tribunal Act, 2010.
25. The MoEF&CC shall, therefore, take appropriate steps to revise the procedure laid down in the impugned Notification dated 15th January, 2016 in terms of the above directions and observations so that it is conformity with the letter and spirit of the directions passed by the Hon'ble Supreme Court in Deepak Kumar (supra).
The applications stand disposed of.
.........................................., CP (Adarsh Kumar Goel) ........................................., JM (Dr. Jawad Rahim) 16 Item Nos. ..........................................,JM 07 to 14 (S.P. Wangdi) September 13, 2018 ..........................................,EM DV & AT (Dr. Nagin Nanda) 13.09.2018 17