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Judgment
This appeal has been preferred against order dated 17.09.2021 granting Environmental Clearance (EC) by SEIAA, U.P. for Sand/Bajri/Boulder mining from Yamuna riverbed at Gata No. 1/1/1, Laat No. 38, village Nuniyari Aehatmal, Tehsil Behat, Saharanpur, U.P. - M/s. Shanti Enterprises, Area-24.29 ha.
Main contention in support of the appeal is that requisite replenishment study has not been conducted before grant of EC which was required under the law, as held by this Tribunal vide order dated 06.04.2021 in OA No. 90/2020, Pramod v. State of Uttar Pradesh & Ors. filed by the appellant. The appellant has also relied upon Chapter 5 of the Sand Mining Guidelines, 2020 issued by MoEF&CC to the effect that sand mining can be permitted only after conducting replenishment study. The appellant has also raised issue of validity of Cluster Certificate dated 16.09.2020, absence of permission for extracting ground water, Consent to Establish from the State PCB under the Air (Prevention & Control of Pollution) Act, 1981 and Water (Prevention & Control of Pollution) Act, 1974, mining being permitted within the river and absence of due diligence about the background of project proponent (PP).
Vide order dated 21.10.2021, this Tribunal sought a response on the above issue from the PP and the SEIAA, UP.
In pursuance of above, the response has been filed by SEIAA, UP as well as Respondent No. 11 - PP. The stand of SEIAA, UP filed on 10.03.2022 acknowledges that no replenishment study has been undertaken even though this aspect was considered while granting EC. Once there was no replenishment study there could not be EC as per Sand Mining Guidelines, 2020 issued by the MoEF&CC under the Environment (Protection) Act, 1986. Relevant extract from the response of the SEIAA is reproduced below:-
“8. Subsequently, the case was considered in 482th SEIAA Meeting 12.08.2021 wherein, SEIAA agreed with the recommendation of the SEAC meeting dated 09.07.2021 to grant EC along with all the general and specific conditions to the title proposal, It become necessary to mention here that SEIAA also stipulated the following specific conditions:
DSR lacks in replenishment study thus SEIAA decided to grant EC for a period of one year only. Project proponent should submit replenishment study, duly approved by the competent authority, for extension of EC beyond one year.
Directions/suggestions given during public hearing and commitment made by the project proponent should be strictly complied.
A certificate from Forest Department shall be obtained that no forest land is involved and if forest land is involved the project proponent shall obtain the forest clearance and permission of Central and State Government as per law under the provisions of Forest (conservation) Act, 1980 and submit before the start of work.
The mining lease holders shall, after ceasing mining operations, undertake re-grassing 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.
Three tier green shelter belt of 7.5m width should be developed on the periphery of mine lease area. Local and native species should be planted in consultation with Forest/Horticulture Department/Agriculture University.
If the proposed project is situated in notified area of ground water extraction, where creation of new wells for ground water extraction is not allowed, requirement of fresh water shall be met from alternate water sources other than ground water or legally valid source and permission from the competent authority shall be obtained to use it.
Concerned copy of minutes, dated: 12.08.2021 is being filed herewith and marked as Annexure no.05.
Further, SEIAA, vide letter no. 193/Parya/SEIAA/6266-5850/2021 dated: 17.09.2021 issued Environment Clearance for the proposed project. Concerned copy of Environment Clearance letter, dated: 17.09.2021 is being filed herewith and marked as Annexure No. 06.”
The stand of the PP in a tabular form is as follows:-
Observations/ response sought in order dated 21.10.2021
Response of Answering Respondent as it was on the date of Hon’ble Tribunal’s
observations
Chapter 5 of the Sand Mining Guidelines, 2020 issued by MoEF&CC mandate that River bed sand mining be permitted only after conducting a replenishment study as per the procedure prescribed therein. No replenishment study has been conducted on River Yamuna in District Saharanpur till date.
The EC has been issued in favour of respondent only for 1 year with Specific Condition
–cluster 1 thereof read as under:- “DSR lacks in replenishment study thus SEIAA decided to grant EC for a period of one year only. PP should submit replenishment study, duly approved by the competent authority, for extension of EC beyond one year”.
2.Further, SEIAA in compliance to Chief Secretary letter dated 09.09.2021 in compliance to NGT order
dated 26.02.2021 in OA
360/2015 has already passed resolution that “due to uncertainty and to avoid any critical condition SEIAA is granting EC only for one year.”
Further, State of UP in M.A. No. 36/2021 86 M.A. No. 37/2021 has already updated NGT that "study is underway and will be completed soon and mining will be allowed consistent therewith" copy annexed as Annexure G.
The project proponent has conducted replenishment study as per the T&C of EC and submitted to SEIAA, District Magistrate and DGM which is pending review.
That previously also Environmental Clearance was issued in respect of the same mining site at village Nuniyari District, Saharanpur. That environmental clearance was challenged before this Hon’ble Tribunal in Appeal No. 258/2018 (Sunil Kumar v. State of UP & Ors.) where vide order dated 29.03.2019, the Tribunal recorded the submission of the State that it would recall the Environmental clearance. This aspect has been completely ignored by UP SEIAA.
The allegation is baseless and not-related to Respondent.
The recalled EC belonged to previous lease holder. The recalled EC has not been transferred. The lease in favour of previous lease holder was also cancelled by DM Saharanpur.
Thereafter, lease was published afresh for e-auction on by District Administration Saharanpur and Respondent was found capable fulfilling all the requirements hence, eventually granted LoI being the highest bidder.
The Respondent has secured fresh EC by SEIAA, UP as per the provisions of EIA Notification-2006 (as amended).
Cluster Certificate dt. 16.09.2020 is false since:
a. It says that no lot exists within 500 meters when in fact Lot No. 37, Village Naniyari is adjacent.
b. Certificate falsely states that no EC had earlier been issued for this Lot when in fact EC
had earlier been issued.
The allegation is outrightly baseless made without regard to actual site position. Further, appellant herein is no expert in the field and there is plausible field and there is plausible whatsoever to prefer his imagination based on his delusional thought process.
It is innately laughable to even imagine that maps prepared by appellant (as stated in para ‘E’ at pg. 15) should be relied or preferred instead of official maps prepared by Government.
The cluster certificate has been issued as per the format approved by SEIAA, UP. Which clearly states that there is no lease approved in terms of Lol and neither is under operation with 500 meter periphery of lease belonging to Respondent.
The Lot No. 37 is non- operation and is under possession of State Government which has not been allocated to any lease holder.
The project has been appraised by SEIAA, UP under B1 Category.
The definition of cluster is amply clear in EIA Notification- 2006 (and subsequent amendments).
No permission obtained for extraction of ground water. The EC itself states that 15,782 litres of water/day is required for mining operations. (refer to Sr. No. 27 of the EC)
The allegation is completely baseless and mis-leading.
The Respondent has not commenced mining operation as on the date of filing appeal. However, certain clarifications have been issued by the concerned authorities, thereafter and those would be adhered to fully.
The Respondent secured EC on 17.09.2021 and the lease deed has been duly executed in favour of the answering respondent.
The Respondent has already obtained all the requisite permissions (CTE & CTO) under Air & Water Acts and so also assent of Central Ground Water Authority (CGWA) and did not start mining. The necessary permission are annexed with the instant reply.
The Respondent further
submits that since the project is under the notified area of ground Water extraction, it shall explore alternate valid source of water demand through hiring tankers. which would also generate employment of local villagers in consultation with concerned Gram Pradhan.
No consent to operate obtained from the Uttar Pradesh Pollution Control Board
The answering respondent has already secured all the required permissions from UPPCB and CGWA (Annexure-E,D & F) and despite that it did not commenced mining operation.
River Yamuna flows right through the centre of the mining area. It is submitted that while mining is permitted on the river bed but no mining area can contain a portion of the River itself.
It is submitted that the course (drainage pattern) of river Yamuna has a fluctuating tendency in Behat Tehsil of Saharanpur due to its peculiar geo-morphological conditions. the river keeps shifting season by season and is spread into small, big channels while it flows.
The dry river bed itself becomes part of entire action water channel in monsoon season when replenishment occurs.
The mining shall be done in dry river bed as per the provisions of approved Mining Plan, SSMG- 2016 Guidelines, EMSM-2020 Guidelines and General Condition Clause No. 6 & Specific Condition Clause No. 55.
No due diligence conducted by U.P. SEIAA on the background of project proponent. Mr. Rajeev Bhatia, Partner of the Project proponent, is a habitual defaulter and his earlier sand mining operations at Village Rehna, District Saharanpur conducted through his brother were stopped pursuant to order dt. 06.04.2021 passed by this Hon’ble Tribunal in O.A. No. 09/2020
The allegation is malicious, made out of spite, fabricated and baseless and is non-environmental subject. Further, apart from the infantile nature of allegation and deduction sought by appellant, it is trite that no person can be held responsible for an action of his family member.
Moreover, the character certificates of Respondents were duly scrutinized and validated during evaluation of e-tender by district administration.
From the above it remains undisputed that EC has been granted without replenishment study which is sought to be defended that the same is only for one year to be extended only if replenishment study is completed before that.
Learned counsel for the PP instead of focusing on the point of effect of absence of replenishment study, which is mandatory under norms, sought to argue on locus and bonafides of the appellant which are not relevant in view of patent illegality in EC granted in favour of PP.
Accordingly the impugned EC will stand quashed without prejudice to fresh EC being granted after following due process of law. The mining already conducted is illegal and consequences of such illegality may be appropriately determined and enforced by the SEIAA, UP and State PCB, after hearing the PP, within one month from today.
The appeal is disposed of accordingly.
A copy of this order be forwarded to the SEIAA, UP and State PCB by e-mail for compliance.