National Green Tribunal
Ravi Kumar vs Ministry Of Environment Forest And ... on 4 February, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 04 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
M. A. No. 05/2022
In
Appeal No. 53/2020
Ravi Kumar Appellant
Versus
Ministry of Environment, Forests
& Climate Change & Ors. Respondent(s)
..................
M/s Sai Int. Udyog
Muraina Road, Badfara Ambah,
Distt. Muraina, Madhya Pradesh Applicant in M.A.
Date of hearing: 04.02.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Mr. Arun Pant, Advocate in M.A. 05/2022
ORDER
1. This application has been filed by M/s Sai Int. Udyog, Muraina Road, Badfara Ambah, Distt. Muraina, Madhya Pradesh for modification of earlier order of this Tribunal dated 23.09.2021 in Appeal No. 53/2020, Ravi Kumar v. Ministry of Environment, Forests & Climate Change & Ors.
By the said order, the Tribunal quashed EC for sand mining on the ground that EC was not granted after requisite EIA/EMP for a cluster.
Earlier order of the Tribunal is reproduced below:-
"1. This appeal challenges Environmental Clearances (ECs) dated 06.03.2020 in favour of project proponents (PPs) - M/s Saroj Buildcon, M/s Sai Enterprise Udyog, Manish Kumar Gupta and M/s 1 Maa Jayanti Infrastructure. All the four ECs are identical for sand mining at Khand No. 1,2,3 and 4, village Bendakhand, Tehsil and District Banda, UP. According to the appellant, the leases form a cluster and need to be evaluated as such instead of being evaluated separately in violation of Sustainable Sand Mining Guidelines and judgment of the Hon'ble Supreme Court in Deepak Kumar v. State of Haryana & Ors.: (2012) 4 SCC 629.
2. Vide order dated 09.12.2020, the Tribunal sought response from the Ministry of Environment, Forest and Climate Change (MoEF&CC) and State Level Environment Impact Assessment Authority (SEIAA), UP. No response has been filed by the MoEF&CC but SEIAA, UP has filed reply on 08.03.2021 inter-alia stating as follows:
"2. It is submitted that aforesaid leases form part of one cluster for which a cluster certificate was issued by the District Mining Officer, Banda on 02,04.2019. It is further submitted that each of these lease measures 21 ha. and cumulatively 84 ha. As per notification dt. 14.08.2018 issued by MoEF&CC, Govt. of India, the projects fall in Category "B1".
It is submitted that as per Notification, the SEIAA was within its jurisdiction to grant EC. It is submitted that process stipulated by law was followed. The EIA study, was done in each of the proposed project. It is submitted that law does not mandate Cluster EIA/EMP. There was no necessity of Cluster EIA/EMP."
3. The matter was last considered on 29.07.2021 in the light of above report of the SEIAA. It was held that since mining involved a cluster, EIA/EMP is mandatory as per Notification dated 15.01.2016. Accordingly, the impugned ECs were vitiated but before final decision, it was necessary to hear the Project Proponents (PPs). The operative part of the order is reproduced below:
"1. xxx .........................................xxx............................xxx
2. Vide order dated 09.12.2020, the Tribunal sought response from the MoEF&CC and SEIAA, UP. No response has been filed by the MoEF&CC but SEIAA, UP has filed reply on 08.03.2021 inter-alia stating as follows:
"2. It is submitted that aforesaid leases form part of one cluster for which a cluster certificate was issued by the District Mining Officer, Banda on 02,04.2019. It is further submitted that each of these lease measures 21 ha. and cumulatively 84 ha. As per notification dt. 14.08.2018 issued by MoEF&CC, Govt. of India, the projects fall in Category "B1".
It is submitted that as per Notification, the SEIAA was within its jurisdiction to grant EC. It is submitted that process stipulated by law was followed. The EIA study, was done in each of the proposed project. It is submitted that law does not mandate Cluster EIA/EMP. There was no necessity of Cluster EIA/EMP."
23. We have heard learned Counsel for appellant. Learned Counsel for the appellant submits that the stand of SEIAA in above report is untenable in law. Requisite process for EC for cluster which requires cluster EIA/EMP has not been followed, which is necessary. Reliance has been placed on Appendix -XI to the Notification dated 15.01.2016 issued by the MoEF&CC which is as follows:
"PROCEDURE FOR ENVIRONMENTAL CLEARANCE FOR MINING OF MINOR MINERALS INCLUDING CLUSTER The following policy shall be followed for environmental clearance of mining of minor minerals including cluster situation:-
(1). The data provided by the States (Sustainable Sand Mining Guidelines) shows that 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.
(2). The mining of minor minerals is mostly in clusters. The Environment Impact Assessment or Environment Management Plan are required to be prepared for the entire cluster in order to capture all the possible externalities. These reports shall capture carrying capacity of the cluster, transportation and related issues, replenishment and recharge issues, geo-
hydrological study of the cluster area. The Environment Impact Assessment or 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.
(3). 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.
(4). Environmental clearance shall be applied for and issued to the individual project proponent. 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.
(5). The details of cluster Environment Impact Assessment or Environment Management Plan shall be reflected in each environmental clearance in that cluster and 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."
34. Learned Counsel for the appellant states that 2018 Notification does not obviate the requirement of 2016 notification, as erroneously assumed by SEIAA. In the present case, above procedure is not shown to have been followed which vitiates the impugned ECs. None appears for the SEIAA. Notice has not yet been issued to the Project Proponents (PPs) in whose favour ECs have been granted.
5. Accordingly, it appears to be necessary to give opportunity to the PPs before passing final order. Issue notice to the PPs by e- mail by the Registry. The appellant may also serve notice to the PPs by e-mail as well as by speed post and file affidavit of service within one week. Notice may also be served upon PPs by the District Magistrate, Banda. Response, if any, may be filed before the next date. It is made clear that if response is not filed before the next date, the PPs may be proceeded ex-parte and adverse order may be passed."
4. It is reported that inspite of service of notice none appears for the PPs. In view of observations in order dated 29.07.2021, which are not shown to be in any manner erroneous, the impugned ECs have to be quashed with liberty to the authorities to consider the matter in accordance with law, as per procedure for cluster EIA/EMP. Though learned Counsel for SEIAA submitted that the applicant is not resident of the area and is not affected, the fact remains that the law has to be followed."
2. Aggrieved by the above order, Civil Appeal No(s). 7877/2021, M/s Sai Int Udyog v. Ravi Kumar & Ors. was filed before the Hon'ble Supreme Court which has been disposed of on 05.01.2022 as follows:-
"Learned counsel for the appellant submits that although it has been recorded in Para 4 of the impugned order dated 23rd September, 2021 that the appellant was duly served, but the fact is that the notices were never served upon the appellant.
Learned counsel for the appellant seeks liberty to file an application before the Tribunal in reference to what has been recorded in Para 4 of the impugned order dated 23rd September, 2021. Keeping the appeal pending in this Court, the appellant may avail the remedy of filing an application before the Tribunal, if so advised."
3. We have heard learned Counsel for the applicant. It is submitted that after the Notification dated 15.01.2006, Notification dated 14.08.2018 has been issued by the MoEF&CC which is as follows:-
4"Schematic Presentation of Requirements on Environmental Clearance of Minor Minerals including cluster situation in Appendix-XI:
Area of Category Requirement Requirement Requirement Who can Who will Authority Authority to Lease of of EIA / EMP/ of Public of EC prepare EIA/ apply for EC to monitor EC (Hectare) Project DSR Hearing EMP appraise/ compliance grant EC EC Proposal of Sand Mining and other Minor Mineral Mining on the basis of individual mine lease 0 - 5ha 'B2' Form -1M, No Yes Project Project DEAC/ DEIAA SEIAA PFR, DSR and Proponent Proponent DEIAA/ SPCB CPCB Approved MoEFCC Mine Plan Agency > 5 ha and 'B2' Form -I, PFR, No Yes Project Project SEAC/ nominated < 25 ha DSR and Proponent Proponent SEIAA by MoEFCC Approved Mine Plan and one EMP for all leases in the Cluster ≥ 25ha 'B1' Form -I, PFR, Yes Yes Project Project SEAC/ and ≤ DSR and Proponent Proponent SEIAA 100ha Approved Mine Plan and one EIA/EMP forall leases in the Cluste > 100 ha 'A' Form -I, PFR, Yes Yes Project Project EAC/ DSR and Proponent Proponent MoEFCC Approved Mine Plan and one EIA/EMP for all leases in the Cluster EC Proposal of Sand Mining and other Minor Mineral Mining in cluster situation Cluster 'B2' Form -1M, No Yes State, State Project DEAC/ DEIAA SEIAA area of PFR, DSR and Agency, Proponent DEIAA/ SPCB CPCB mine Approved Group of MoEFCC leases up Mine Plan Project Agency to 5 ha Proponents, nominated Project by MoEFCC Proponent Cluster 'B2' Form -I, PFR, No Yes State, State Project DEAC/ area of DSR and Agency, Proponent DEIAA/ Mine Approved Group of leases > 5 Mine Plan Project ha and < and one EMP Proponents, 25 ha with for all leases Project no in the Cluster Proponent individual lease > 5 ha Cluster 'B2' Form -I, PFR, No Yes State, State Project SEAC/ area of DSR and Agency, Proponent SEIAA Mine Approved Group of leases > 5 Mine Plan Project ha and < and one EMP Proponents, 25 ha with for all leases Project any in the Cluster Proponent individual lease > 5 ha Cluster of 'B1' Form -I, PFR, Yes Yes State, State Project SEAC/ mine DSR and Agency, Proponent SEIAA leases of Approved Group of area ≥ 25 Mine Plan Project hectares and one Proponents, with EIA/EMP Project individual forall leases Proponent lease size in the Cluster ≤ 100ha Cluster of 'A' Form -I, PFR, Yes Yes State, State Project EAC/ any size DSR and Agency, Proponent MoEFCC with any Approved Group of of the Mine Plan Project individual and one Proponents, lease > EIA/EMP for Project 100ha all leases in Proponent the Cluster 5
4. Based on the above, the argument in the application is set out as follows:-
"As such, by Notification dated 14.08.2018, the requirement of "one EMP for all leases in the Cluster" was replaced by just "EIA/EMP".
The impugned EC issued to the applicant is in full compliance of the requirements of the said Notification dated 14.08.2018 as rightly contended by SEIAA before this Hon'ble Tribunal."
5. We are unable to accept the above submission. We are unable to hold that the cluster EIA/EMP has been dispensed with by individual EIA/EMP even in case of clusters. Thus, even after hearing the applicant, no case is made out for a different view.
The application is dismissed.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dr. Nagin Nanda, EM Dr. Afroz Ahmad, EM February 04, 2022 M. A. No. 05/2022 In Appeal No. 53/2020 SN 6