Sunil Kumar Jain vs State Level Environment Impact And Ors

Dr. S.S. Garbyal, (Expert Member)

This appeal has been filed by Shri Sunil Kumar Jain proprietor of Jayshree Minerals, Bhihariji Road, Nasirabad, District Ajmer, State of Rajasthan, being aggrieved by the letter dated 06.12.2018 issued by State Level Environment Impact Assessment Authority (SEIAA), Rajasthan cancelling the Environmental Clearance dated 07.04.2016 granted to the appellant for Sanod Quartz, Feldspar and Mica Mining Project of M.L. No. 05/96, Area 4.9414 Hectare, near Village - Sanod, Tehsil - Nasirabad, District - Ajmer, Rajasthan. It has been stated in the impugned letter that the appellant had given an incorrect information to SEIAA, Rajasthan in Form - 1 by not disclosing the fact that the mine area falls within breeding area of Godawan (Great Indian Bustard (GIB)) and Kharmor (Lesser Florican).

It is the case of the appellant that SEIAA, Rajasthan has issued the impugned letter dated 06.12.2018 without verifying the facts, belatedly, in the absence of any physical demarcation of habitat of the above species and total non-application of mind. It has been submitted that Respondent No. 1 (SEIAA, Rajasthan) has failed to consider the fact that appellant had got the Environment Impact Assessment (EIA) Report prepared by NABET, an accredited consultant for preparation of the Form - 1 and completely disregarded the fact that the mining lease of the appellant was sanctioned in the year 1977 and since then there had been no intimation letter from the Forest Department of Rajasthan that the mining area falls near to the breeding area of and Kharmor. Appellant has further stated that respondent no. 1 has failed to take into consideration the fact that the appellant had got the mining lease renewed from time to time and that Deputy Conservator of Forest (DCF), Ajmer had categorically mentioned in his letter dated 27.06.2016 and 10.02.2017 that from 2014 onwards there had been no records of presence of Godawan and Kharmor in the area where the appellant is conducting mining operations. It is further being submitted that the mine area of the appellant is about 28 kms from the Village Sokhalia, which is alleged to be the breeding ground of the Godawan and Kharmor. Therefore, the appellant had submitted that the impugned order is not only without merits from environmental standards point but also infringes on the right to livelihood of the appellant. Therefore, the appellant has prayed as under:

"A. Set aside impugned letter dated 06.12.2018 issued by Respondent No. 1 SEIAA, Rajasthan

B. Pass any other such order/orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of this case."

The impugned order dated 06.12.2018 (Annexure A-1) for cancelling the Environmental Clearance granted to M/s Jai Shree Minerals proprietor of Shri Sunil Kumar Jain for mining of Sanod Quartz, Feldspar and Mica Mining Project of M.L. No. 05/96, Area 4.9414 Hectare, near Village - Sanod, Tehsil - Nsirabad, District - Ajmer, Rajasthan is primarily based on complaint received by SEIAA, Rajasthan from DCF, Ajmer stating that mine area falls within the breeding area of Godawan and Kharmor which falls under Critically Endangered and Endangered category respectively. It has also been stated in the letter that the appellant was under a legal obligation to bring to the notice of SEIAA, Rajasthan that the mine area falls within a breeding area of Godawan and Kharmor which falls under the Critically Endangered and Endangered category respectively. It has further been stated that the provisions of the Environment Impact Assessment (EIA) Notification dated 14.09.2006, made under The Environment (Protection) Act, 1986, provides that:

"Deliberate concealment and /or submission of false or misleading information or data which is material to screening of scoping or appraisal or decision on the application shall make the application liable for rejection and cancellation of prior environmental clearance granted on that basis."

The appellant was also heard in person by SEIAA, Rajasthan on 26.11.2018. It has been stated in the impugned order as under :

"....It is the responsibility of the Project Proponent to conduct survey of the area within 10 kms from the project site and submit factual report to the Authority. The SEIAA however, upon considering your reply regarding non-existence of Godawan and Lesser Florican in the area, asked the District Forest Officer to appeal before the Authority on 29.11.2018 along with record for providing factual status regarding presence of the birds in question in the area. Shri. Ajay Chittora, District Forest Office, Ajmer informed the Authority that Lesser Florican is regularly found in the Sokhaliya Protected Area that amongst other villages include village Sanod. He further informed that the Wild Life Institute of India has confirmed the presence of Lesser Florican in the said region. Shri Ajay Chittora informed the Authority that Additional Chief Conservator Forest and Chief Wild Warden, Rajasthan, Jaipur has recommended closure of mining in the area with immediate effect. Shri Chittora pointed out that the Ministry of Environment and Forests in its guidelines for Lesser Florican recovery Programme has stated that the bird has been given the highest degree of protection under Schedule 1 of the Wild Life Protection Act, 1972 and its numbers has gone down drastically necessitating its declaration as an endangered species in IUCN Red list 2011. The report also states that the bird is also included as a priority species for recovery in the Integrated Development of Wild Life Habitats."

Invoking the provisions of Para-8 (vi) of the Environment Impact Assessment (EIA) Notification, 2006, providing for rejection and cancellation of prior Environmental Clearance obtained on the ground of deliberate concealment and/or submission of false or misleading information, the Environmental Clearance granted to the appellant was cancelled.

It is pertinent to mention that Environmental Clearance for Sanod Quartz, Feldspar and Mica Mining Project of M.L. No. 5/96, Area 4.9414 Hectare in Village - Sanod, Tehsil - Nsirabad, District - Ajmer, Rajasthan with a production capacity of 19580 TPA (Tonnes Per Annum) was granted on 7th April, 2016 subject to strict compliance of 24 specific and 19 general conditions laid down by SEIAA, Rajasthan.

On 01.09.2017, the DCF, Ajmer who is also Member of DEIA had written to the Chairman, SEIAA (Rajasthan) as under:

" ... उल्लेखनीय है कि सुखलिया क्षेत्र गोडावन एवं अजमेर जिला पक्षी खरमोर का प्रजनन क्षेत्र है/ गोडावन Critically endangered एवं खरमोर Endangered category में आते है/ खरमोर पक्षी दक्षिण भारत से आकर उक्त क्षेत्र प्रजनन करते है . गोडावन क्षेत्र (खोखलिया) राज्य सरकार द्वारा शिकार निषेद क्षेत्र घोषित किया हुआ था. गोडावन / खरमोर निषेद क्षेत्र में 43 राजस्व गाओं का कुल 52683 वर्ग कि.मी. क्षेत्र आता है जिसमे गोडावन / खरमोर पाया जाते है . गोडावन/ खरमोर पक्षी का परंपरागत रूप से कुल 43 राजस्व गाओं में प्राकृतिक आवास रहा था. प्राकृतिक आवास में राजकीय भूमि व् कृषि सम्मलित है परन्तु उक्त राजस्व ग्रामो में खनन पट्टे स्वीकृत करने के कारन खनन हेतु विलास्टिंग किये जाने से उपस्थित गोडावणों का प्रजनन नहीं होने से इनकी जनसंख्या में निरन्तर गिरावट हुई है वर्ष 1 994 में गोडावन कि संख्या 62 थी, खनन पट्टे स्वीकृत होने पर उक्त क्षेत्र में व्लास्टिंग किये जाने से गोडावन कि संख्या निरंतर गिर कर वर्ष 201 5 तक लगभग समाप्त हो गई है. उक्त क्षेत्र में खनन होने से गोडावन नहीं आनेपर स्थिति विकट व् चिंतामय हो गई है.

वर्तमान में उक्त क्षेत्र में अजमेर जिला पक्षी खरमोर (Lesser Florican) का प्रजनन क्षेत्र है/ जिसका संरक्षण करना भी अति आवश्यक है/ MOEF कि Site Specific रिपोर्ट (छायाप्रति संलग्र) में भी सुखलिया में माइनिंग को बैन किया जाना अंकित है/

अतः जिला पक्षी खरमोर कि सुरक्षा एवं संरक्षण को मद्यनजर रखते हुए उक्त क्षेत्र में संदर्भित पात्रो द्वारा जारी Environmental Clearance निरस्त करने का श्रम करे ताकि खोखलिया क्षेत्र में पाए जाने वाले गोडावन / खरमोर पक्षी का संरक्षण किए जाने कि कारवाही प्रभावी ढंग से कि जा सके. "

This matter was discussed in the meeting of SEIAA, Rajasthan on 29.11.2018 held in the Chamber of the Chairman at Jaipur. The Minutes of the Meeting recorded are as under :

" Minutes of the Meeting

A Meeting of the State Level Environment Impact Assessment Authority was held on 29.11.2018 at 3.00 p.m in the Chamber of Chairman, SEIAA, at Aravali Bhaawan, Jhalna Doongri, Jaipur. District forest Officer, Ajmer, Shri. Ajay Chittora was present during the meeting as per the decision taken in the 4.3rd Meeting and communicated to him in writing vide letter dated 27/28.11.2018. Following cases as per agenda were considered in the meeting:

File No. 4046. Complaint received from DCF Ajmer. Environmental Clearance of Sanod Quartz, Feldspar & Mica Mine (ML-05/96) over an area of 4.9414 ha. M/s Jai Shree Minerals Prop. Shri Sunil Kumar Jain S/o Shri Shanti Lal Jain Shri Bihariji Road, Nasirabad & Distt Ajmer

File No. 2196. Complaint received from DCF Ajmer. Environmental Clearance of Quartz, Feldspar & Mica Mine, ML No. 10/96, area 4.59 Ha. Near Village Ramsar, The Nasirabad, Distt. Ajmer Shri Mukesh Sethi, S/O Late Shri Mahaveer Chand Jain, 75, Ashok Marg, Ajmer, Rajasthan.

The above two cases were discussed in detail, the Authority found that the reply submitted by both the project proponents does not explain as to why material information regarding existence of areas which are important or sensitive for ecological reason-Wetlands, watercourse or other water bodies, biospheres, mountains, forest, as also the areas which are used by protected, important, or sensitive species of flora and fauna for breeding, nesting, foraging, overwintering, migration was not gathered and provided. Under the provisions of the EIA notification, it is the responsibility of the Project Proponent to conduct biodiversity study of the area within 10 Kms from the project site and submit factual report to the Authority. The District Forest Officer, Ajmer Shri. Ajay Chittora appeared before the Authority along with record and provided factual status regarding present of the birds in question in the area. Shri. Ajay Chittora, District Forest Officer, Ajmer, informed the Authority that lesser Florican is regularly found in the Sokhaliya Protected Area that amongst other villages include village Ramsar and Sanod. He further informed that the Wild Life Institute of India has confirmed the presence of Lesser Florican in the above said region. Shri Ajay Chittora further informed that Authority that Additional Chief Conservator Forest and Chief Wild Warden, Rajasthan, Jaipur has recommended closure of mining in the area with immediate effect. Shri. Chittora pointed out that the Ministry of Environment and Forest in its guidelines for Lesser Florican recovery Programme has stated that the bird has been given the highest degree of protection under Schedule 1 of the Wild Life Protection Act, 1972 and its numbers has gone down drastically necessitating its declaration as an endangered species in IUCN Red List 2011. The report also states that the bird is also included as a priority species for recovery in the Integrated Development of Wild Life Habitats.

The Authority, in view of the provisions para 8(vi) of the Environment Impact Assessment Notification providing for rejection and cancellation of prior EC, obtained on the basis of delibereate concealment and or submission of false or misleading information, taking into consideration the complete record of the case, oral and written submissions made by both the project proponents and the information provided by District Forest Officer, Ajmer regarding existence of Lesser Florican in the area, opined that mining activity in the area will interfere in the life activities of the Lesser Florican and may thus endanger its existence and therefore decided to cancel the Environmental Clearance issued earlier in both the cases."

The DCF, Ajmer in his reply filed on behalf of Respondent No. 4- Principal Secretary, Department of Environment, Respondent no. 5- Chief Wildlife Warden, Government of Rajasthan and Respondent no. 7- Deputy Conservator of Forest, Ajmer has stated that the contention that DCF, Ajmer had categorically mentioned in his letter dated 27.06.2016 and 10.02.2017 that from 2014 onwards there has been no records of presence of Godawan and Kharmor in the area is incorrect. The submission of the DCF, Ajmer is reproduced as below:

" ....Taking the garb of letters dated 27.06.2016 and 10.02.2017 issued by the Forest Department and stating that no Lesser Florican and Great Indian Bustard has been seen since the year 2014, is incorrect. The Forest Department carries out a survey of calculating the animals i.e., Wildlife Estimation once a Year. Moreover, the Lesser Florican is a migratory bird which comes to Shokliya area during its breeding seasons between July to November. The Department has never carried out the survey of calculating the number of Lesser Florican during this period. The number of Lesser Florican existing has been described in the report - Ecology and Management of grass-level habitats in India - according to which in the year 1999 - 4 Lesser Floricans were seen, in the year 2010 - 3 Lesser Floricans and in the year 2014 - 40 Lesser Floricans were existing. Copy of the report is annexed herewith as Annexure R/7/1. On bare perusal of the report, it is aptly clear that the Lesser Florican is existing in the area in question. The area in question is preserved as the habitat area (proticeted area) for State Bird - GIB and District Bird - Lesser Florican. Both these species of bird are on the verge of extinction and if the area is not conserved, the species of these birds will extinct. Moreover, the Lesser Florican has been declared as the District Bird of Ajmer in the area to prevent its extinction and enlighten public at large about its protection. The Ministry of Envrionemnt and Forest in its guidelines for Lesser Florican recovery programme has observed that mining is one of the major causes for extinction of Lesser Florican and therefore no mining activity shall be carried out in the area in question. Copy of the Guidelines for the Lesser Florican Recovery Programme is annexed herewith as Annexure R/7/2."

It has been further stated that the breeding ground of Great Indian Bustard (GIB) and Lesser Florican is spread over an area of 526.8 sq kms and that as per the guidelines issued by the Ministry of Environment, Forests and Climate Change (MoEF & CC) Lesser Florican is specified in schedule 1 of the Wild Life Protection Act, 1972 and needs utmost protection. Furthermore, in view of continuous decline in the number of Lesser Florican, ICUN Red List 2011 specifies Lesser Florican as an endangered species. It has been specified as under:

" ...The survey of evaluating the number of GIB and Lesser Florican is conducted once in a year and there is every likelihood that on the date of survey the species were found. Drawing the conclusion on basis of the letter dated 27.06.2016 that there is no spotting of GIB and Lesser Florican in 2014, 2015 and 2016 would be unjust and improper.

The assertion of the DCF, Ajmer is based on the report "Ecology and Management of Grass-Level Habitats in India" prepared by ENVIS which is annexed with the reply on behalf of Respondent nos. 4, 5 and 7. In the paper "Managing Indian Grasslands for Multiple Functions: Action Imperatives" authored by Shri G.S. Rawat and Shri B.S. Adhikari of Wildlife Institute of India, Dehradun, annexed with the report, gives the status of important grassland habitats in India used by Lesser Florican. Under the head "Breeding Habitats" with respect to Ajmer it has been mentioned as below:

"Ajmer: Ajmer district, Rajasthan, dominated by the mosaic of agriculture fields and grasslands is also well known for the Floricans. It was observed that this area holds largest congregation of breeding floricans during the monsoon. The Lesser Florican (Sypheotides indica) is still found during monsoon in small numbers. In 2013, nearly 1120 male floricans were seen by the local staff (Rajender Singh perscom.2013) in and around Sonkhaliya.

Most of these areas are under the cultivation with the Kharif crops such as Jowar, Bajra (Millet). Black Gram, Cotton, Soybean etc., and Rabi Crops such as Wheat, Gram, Mustard and Barley in small irrigated areas with wells and bore wells. The area is also dominated with Prosopis juliflora, Capparis decidua and Calotropis procera etc. Floricans use these agriculture crops and adjoining grasslands to establish their lek area. Though, they use crop fields for display and for aging but they also seek the nearby grasslands as sheltered during any kind of threats. "

In the additional affidavit filed on behalf of Respondent no. 4, 5 and 7, it has been stated as below:

"4. That, With respect to the Land Status of Sokhliya Area, it is submitted that the total area of 43 villages of Sokhliya area is 52681 hectare (526/81 Km2) out of which 10241.06 Ha (102.41 Km2) is Sivayachak land and 5747.32 ha (57.47 Km2) is Charagah land which can be declared either deemed Forest after demarcation in future or can be allotted to Forest Department for the conservation of endangered bird, Lesser Florican.

That, with respect to the Estimation of population of Lesser Florican, it is collectively done by BNHS, WII, Dehradun and Forerst Department during monsson season i.e., in July-August. Since Lesser Florican is a migratory bird which comes to Sokhliya area for breeding from July to October, it is the responsibility of the department to protect and conserve an endangered bird species. The estimation of wildlife by waterhole method is done on Full Moon in the month of May for 24 hours. Lesser Florican is not included because it migrates only during monsoon season.

That, the Distance of Mines from Sokhliya Area is 10 KM and 3.5 KM in case of Appeal No. 01/2019 respectively.

That, in the light of above facts, Lesser Florican, being on verge of extinction is alarming and it should be protected in situation. "

As far as GIB is concerned, the DCF, Ajmer in his letter dated 27.06.2016 and in response to the RTI application dated 15.06.2016 written by Shri Radhavallabh Maheshwari, Ajmer had informed that no GIB had been seen in the area since 2014 till 2016. The DCF, Ajmer who had also appeared before us had further stated that even after 2016 no GIBs had been seen in Sokhliya.

No record had been placed before us which shows that 102.41 Km2 of Sivayachak land and 57.47 Km2 of Charagah land which have been identified for the conservation of Lesser Florican, as stated in the additional reply filed on behalf of Respondent Nos. 4, 5 and 7, has either been declared as deemed forest or protected forest or notified as Lesser Florican/GIB conservation area or demarcated on the ground as has been clearly stated in the above reply as under:

"4. That, With respect to the Land Status of Sokhliya Area, it is submitted that the total area of 43 villages of Sokhliya area is 52681 hectare (526/81 Km2) out of which 10241.06 Ha (102.41 Km2) is Sivayachak land and 5747.32 ha (57.47 Km2) is Charagah land which can be declared either deemed Forest after demarcation in future or can be allotted to Forest Department for the conservation of endangered bird, Lesser Florican."

The learned Counsel appearing on behalf of Respondent Nos. 4, 5 and 7 has admitted that no such land has either been notified or demarcated on the ground for conservation of Lesser Florican/GIB. It has now been stated that the distance of mine of the appellant is 10 KM. In such view of the matter, it cannot be stated with certainty that the mining lease area of the appellant falls within the breeding area of the Great Indian Bustard and Lesser Florican.

In view of the document placed on record and submissions made above, we direct as follows:

a) It is the undisputed fact that the total area of 43 villages of Sokhliya is more than 526.81 KM2 and out of which only 102.41 Km2of Sivayachak land and 57.47 KM2 of Charagah land needs to be kept for conservation of Lesser Florican. In the absence of any notification for protection of GIB or Lesser Florican or demarcation of such area on ground, the mining lease area of 4.9414 Hectare of mining lease of 05/96 near Village-Sanod cannot be said to be falling within the conservation area of GIB or Lessor Florican. We, therefore, set aside the order dated 06.12.2018 issued by SEIAA, Rajasthan to the appellant for cancelling the Environmental Clearance dated 07.04.2016.

b) The Principal Secretary, Department of Forest & Environment and Chief Wildlife Warden of the State of Rajasthan are directed to identify area required for the conservation for Godawan (GIB) / Kharmor (Lesser Florican) on emergent basis and notify the same as Godawan / Kharmor conservation area or Birds Sanctuary as deemed appropriate within a period of Six (6) months from hence.

c) In the event, the mining lease area of the appellant is found to be falling within the Lessor Florican/GIB conservation area after same is notified, the SEIAA, Rajasthan and State Respondents will be free to restrain his mining in accordance with the EIA Notification, 2006.

With the above direction, this appeal stands disposed of with no order as to costs.