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Judgment
This application has been filed by the Project Proponent (PP), private respondent in the Appeal No. 23/2021 for review of order of this Tribunal dated 11.03.2022.
By the said order, the Tribunal allowed the appeal against EC dated 17.09.2021 in favour of the PP on the ground that no requisite replenishment study was conducted before grant of EC. The Tribunal considered the response of the PP and SEIAA, UP on the subject. Even though the appellant had raised several grounds to challenge the EC, the appeal was allowed only on the ground of absence of replenishment study which was mandatory.
Other grounds raised by the appellant are reflected in para 2 of the order which include validity of cluster certificate dated 16.09.2020. Pointwise response is set out in tabular form in the order as follows:
“5. 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.
The Review Applicant filed an Appeal before the Hon’ble Supreme Court against the order of this Tribunal dated 11.03.2022 being Civil Appeal No. 4024 of 2022, M/s. Shanti Enterprises vs. State of Uttar Pradesh & Ors., which was disposed of on 11.07.2022 granting liberty to the Review Applicant to file a Review Application. As the order shows, contentions of the PP were that replenishment study had already been undertaken and that the Tribunal had extended time for such study in another case in O.A. No. 140 of 2021, Raj Kumar v. State of UP, by order dated 06.05.2022.
We have heard learned Counsel for the Review Applicant as well as the Original Appellant.
Only contention of the PP is that it got the replenishment study conducted on 01.12.2021 which has been filed with the SEIAA. Hon’ble Supreme Court has allowed mining activity even in absence of replenishment study by order of dated 10.11.2021 in Civil Appeal No. 3661-3662 of 2020, State of Bihar vs. Pawan Kumar and Others and order dated 11.11.2021 in SLP (C) No. 10587 of 2019, Bajri Lease LoI Holders Welfare Association vs. State of Rajasthan.
As against the above, learned Counsel for the Appellant submitted that no ground for review has been made out. Replenishment study is mandatory as per Sustainable Sand Mining Guidelines, 2020 and orders of Hon’ble Supreme Court make exception in individual cases which does not obviate need for such study. Study got conducted by the appellant has to be duly appraised by the SEIAA which has not been done. Alternatively, the impugned EC is expiring on 17.09.2022 and at this stage mining cannot be allowed in view of lapse of period of EC. Further, other alternative submissions raised in the appeal may be now considered, particularly absence of appraisal as a cluster. The PP produced erroneous certificate that cluster was not involved. Our attention has been drawn to the EC granted by the MoEF&CC in respect of Lot no. 37 on 23.02.2012, giving coordinates for the said lease as follows:-
“Latitude- 30◦10' 59.5" to 30◦11' 19.6" N and Longitude-77◦ 29' 23.4" to 770 29' 26.8" E in topo sheet No. 53F/8.; Lot No. 37; Khasra no. 1/1/1”
Map annexed to the said EC shows that Lot no. 38 which is subject matter of present proceedings was part of Lot no. 37 and formed a cluster with lot no. 38. It was submitted that in view of the said document, the cluster certificate dated 16.09.2020 relied upon by the Project Proponent (Annexure- A10 to the Appeal) cannot be accepted as correct. We find the argument substantiated from the record.
Further, the appellant submitted that the lease area in present case is in river bed itself which is admitted in the response of PP itself at serial no. 6 in the tabular response quoted in the order referred to above.
Considering the rival submissions, we find it difficult to accept the Review Application.
Firstly, the EC is expiring on 17.09.2022. Secondly, the Cluster Certificate which has been relied upon by the PP is not correct in view of EC granted for Lot no. 37 and map annexed thereto showing that Lot no. 38, which is subject matter of the mining lease in question, forms a cluster which would require appraisal as such. Thirdly, the lease area is part of river bed which is not permissible. Even, with regard to the replenishment study, the study has been conducted by the PP itself which has not yet been appraised by SEIAA. Though later order of the Tribunal in another matter same cannot be ground for review on the principle of explanation to Order 47 Rule 1, even if the said plea is to be accepted, the impugned EC being also bad for absence of Environmental Impact Appraisal of Cluster and for lease area being in river bed, the review application cannot be accepted.
The Review Application is accordingly dismissed.
I.A. No. 193/2022 will stand disposed of accordingly.