AI Structured Summary
Not yet generated for this judgment
Judgment
The applicant has filed the present application seeking setting aside/quashing of the impugned Environmental Clearance dated 31.03.2018 issued in respect of Sand Ghat/ Mine located at Khand No. 11/15 and 11/16 at Village- Diya Upahar, Tehsil, Manjhanpur, District-Kaushambi, Uttar Pradesh for an area admeasuring 24.28 hectares and restraining respondent no. 6 from transferring impugned environmental clearance in favor of respondent no. 7 on the grounds that the impugned environmental clearance is defective/invalid having been granted without EIA/EMP/Public Consultation and contrary to order dated 13.09.2018 passed by this Tribunal in O.A No. 186/2016 titled as Satendra Pandey Vs. MoEF & CC and others.
The applicant has pleaded that the impugned environmental clearance for the said Sand/Morrum Mining Project was awarded on 31.03.2018 by SEIAA, Uttar Pradesh in favor of M/s Rishab Herbal Pvt. Ltd. At the time of awarding of the environmental clearance the Project being less than 25 hectares was categorized as Category – B2 Project in view of MoEF & CC Notification dated 15.01.2016 and was exempted from EIA study, EMP and Public consultation. Subsequently, the MoEF & CC Notification dated 15.01.2016 was partly quashed by this Tribunal vide order dated 13.09.2018 passed in Satendra Pandey’s case (supra) and Category B-2 projects were brought at par with Category B-1 Projects and EIA/EMP and Public Consultation were made mandatory for all projects having area above 5 hectares. The MoEF & CC vide Office Memorandum dated 12.12.2018 communicated the Judgment passed in Satendra Pandey’case (Supra) to all State Chief Secretaries and SEIAAs for requisite compliance. The SEIAA/SEAC, Uttar Pradesh in compliance of the Judgment passed by this Tribunal in Satendra Pandey’s case (Supra) and the MoEF & CC Office Memorandum dated 12.12.2018 treated all mining projects from 5 hectares to 25 hectares, earlier falling under Category B-2, as Category B-1 and decided to revoke 19 ECs granted without following the requisite procedure of EIA, EMP and Public Consultation. The mining lease was revoked and fresh E-auction notice was issued on 24.06.2021. Respondent no. 7 was granted LOI with liberty to get the existing environmental clearance transferred in his favour. Respondent no. 7, accordingly, submitted an application for transfer of the Impugned environmental clearance dated 31.08.2018 which was during pendency of the present application transferred in favour of respondent no. 7 vide transfer order dated 04/22.04.2022. Environmental clearance dated 31.03.2018, which was coterminous with mining lease granted in favour of M/s Rishab Herbal Pvt. Ltd. and had expired with revocation thereof, could not be transferred in favour of Respondent no. 7. Respondent no. 4- MoEF & CC had under SSMG, 2016 and EMGSM, 2020 made conducting of replenishment study necessary for river bed mining. This Tribunal quashed environmental clearance for sand ghats situated in the District Saharanpur, Uttar Pradesh granted without conducting a replenishment study. No replenishment study has been conducted for mining lease granted in favour of respondent no. 7. Environmental clearance for mining lease granted in favour of respondent no. 7 without EIA, EMP, Public Consultation and replenishment study is defective /invalid and liable to be set aside.
Vide order dated 09.05.2022, considering the above, the Tribunal sought response of the respondents and also directed that no illegal mining should be carried out by Respondent No. 7 –M/s Manali Vintrend Pvt. Ltd. Though the matter was scheduled to be listed for hearing on 28.07.2022, Respondent No. 7 filed applications for early hearing being IA No. 152/2022 and also IA No. 153/2022 for vacation of ex parte order. The said respondent has also filed counter affidavit. At the instance of Respondent No.7, the matter has been listed today. Though IA Nos. 152 and 153 of 2022 are shown to be listed for hearing, since the same also involves consideration of the entire matter, instead of piecemeal consideration of the said IAs, we have heard learned Counsel for the parties with reference to the issue raised in the main application also, preponing the hearing to today.
Main contention of the applicant is that grant of EC without EIA, EMP and replenishment study is not permissible in view of judgment of the Hon’ble Supreme Court in Deepak Kumar Vs. State of Haryana & Ors. (2012) 4 SCC 629 following which this Tribunal passed order dated 13.09.2018 in Satendra Pandey’s case (supra). In Deepak Kumar (supra), the Hon’ble Supreme Court observed:
“xxx ………………………………xxx………………………………..xxx
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.”
The Tribunal held in Satendra Pandey’s case (supra) that the directions in Deepak Kumar (supra) cannot be diluted by any administrative orders or notifications and laid down procedures have to meet the mandate of judgment of the Hon’ble Supreme Court. Observations of this Tribunal are as follows:
“xxx ………………………………….xxx…………………….……….xxx
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.”
In the light of above, the MoEF&CC has issued revised procedure in terms of Enforcement and Monitoring Guidelines for Sand Mining 2020 (EMGSM-2020) inter-alia requiring replenishment study by way of para 5 and preparation of mining plan by way of para 4.3.
According to the applicant, EC already granted could also not be enforced being in conflict with the judgment of the Hon’ble Supreme Court in Deepak Kumar (supra) and should have been revoked.
It is undisputed that neither any replenishment study has been undertaken till date nor any EIA and EMP have been submitted nor other requirements, in terms of judgment of the Hon’ble Supreme Court and the guidelines, including public consultation, complied.
In view of above undisputed facts, we direct SEIAA, UP to revisit the EC and related issues as per law, including the SSMG-2016 and EMGSM-2020, within two months. It will be open to the parties to put forwarded their viewpoint, if any, before SEIAA, UP. Pending such consideration, the interim order will continue.
The IAs and the main matter are disposed of.
A copy of this order be forwarded to SEIAA, UP by e-mail for compliance.