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Judgment
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 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.
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."
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
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."
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."
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.
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."
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.
The appeal is allowed as above.
Consequently, no mining be allowed till fresh EC is granted. The
UP State PCB is at liberty to determine and recover compensation for illegal mining, following due law.