Appellant challenged SEIAA Rajasthan's decision declaring its DEIAA-granted Environmental Clearance void. Court set aside SEIAA decision, directing REIAA to reappraise the EC within two months, permitting mining only upon approval.
Decision of SEIAA set aside; SEIAA Rajasthan directed to appraise/re-appraise EC within two months and communicate decision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH NEW DELHI
APPEAL NO.22/2024 (I.A. NO.278/2024 and I.A. NO.267/2024)
IN THE MATTER OF:
1. M/S. RAHUL PAHARIA MINE Silica Sand Minor Mineral Mine, Village-Dantli, Tehsil- Dausa, Rajasthan-303303
...Appellant
Verses
1. UNION OF INDIA Through Secretary, Government of India Ministry of Environment, Forests and Climate Change Indira Paryavaran Bhawan, Jor Bagh Road, New Delhi-110003 2. STATE OF RAJASTHAN Through its Special Secretary, Environment, Department of Environment and Climate Change 3. STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY Through its Member Secretary, Room No. 11, Aravalli Bhawan, Jhalana Institutional Area, Jhalana Doongri, Jaipur-302004 4. STATE EXPERT APPRAISAL COMMITTEE, RAJASTHAN Through its Member Secretary, Room No. 11, Aravalli Bhawan, Jhalana Institutional Area, Jhalana Doongri, Jaipur-302004
...Respondent(s)
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COUNSELS FOR APPELLANT(S):
Mr. Sanjay Upadhyay, Senior Advocate with Ms. Mansi Bachani, Mr. J.P. Jhakhar, Mr. Shubham Upadhyay and Mr. Vedant Bijalwan, Advocates
COUNSELS FOR RESPONDENT(S):
Mr. Narendar Pal Singh and Ms. Anjali Advocates for MoEF&CC with Ms. Ananya Shrotriya (Legal –C) Mr. Rohit Sharma, Advocate for SEIAA Rajasthan and SEAC Rajasthan (through VC)
CORAM:
HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER HON’BLE DR. AFROZ AHMAD, EXPERT MEMBER
RESERVED ON: JULY 12, 2024 PRONOUNCED ON: AUGUST 09, 2024
JUDGMENT
BY HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
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for expansion, over and above the capacity granted by SEIAA Rajasthan on 19.07.2015, was without jurisdiction, null and void.
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connected matters. Notifications were assailed on the ground that procedure for obtaining prior EC in respect of mining of minor minerals for areas from 0 to 25 hectares has been diluted by bringing in within B2 category and granting exemption to such category from public consultation is in violation of Supreme Court’s judgment dated 27.02.2012 in Deepak Kumar vs. State of Haryana, (2012) 4 SCC 629 . Procedure of creation of B2 category and exemption from preparation of Environment Impact Assessment Report, Environment Management Plan and also appraisal by DEIAA and DEAC comprising the members who have no expertise and scientific knowledge to assess environmental implications was challenged in totality.
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dated 13.09.2018 in Satendra Pandey vs. MoEF&CC & Another (supra), MoEF&CC issued an OM dated 12.12.2018 to SEIAAs, requesting for compliance and to inform the Ministry about the action taken. Paras 2 and 3 of OM dated 12.12.2018 are reproduced as under:
“2. The Hon’ble NGT vide order dated 13th September, 2018 in O.A No 186 of 2016 (Satendra Pandey Vs Ministry of Environment Forest & Climate Change & Anr) has inter-alia directed as follows:-
“(i) Providing for EIA, EMP and therefore, Public Consultation for all areas from 5 to 25 ha falling member 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, and 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.”
3. In view of the above, the undersigned is directed to forward the copy of the aforementioned orders for necessary compliance and inform the Ministry about the action taken. A copy of the same has been sent to the Chief Secretaries of all the states/UTs.”
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“(III) Whether ECs granted by DEIAA on and after 13.09.2018 are per se illegal in view of Tribunal’s judgment in Satendra Pandey vs. MoEF&CC & Another (supra)?”
“ ISSUE III:
122. The discussion made above makes it clear that ECs were granted to respondents 5 and 6 by DEIAA in view of the power conferred under EIA 2006 as amended vide Notifications dated 15.01.2016 and 20.01.2016. Tribunal did not find the entire amendment Notifications inconsistent to the directions issued by Supreme Court in Deepak Kumar vs. State of Haryana (supra) . It clearly observed that breaking of category ‘B’ of the Mines into ‘B1’ and ‘B2’ is not per se bad and, therefore, it allowed retention of 0 to 5 hectares as a category, as is evident from Tribunal’s judgment from para 23 in Satendra Pandey vs. MoEF&CC & Another (supra).
123. However, to the extent the amendment notifications diluted the stringent requirement of appraisal for grant of EC, it was not found consistent with the judgment of Supreme Court in Deepak Kumar vs. State of Haryana (supra) . Tribunal held that there was an attempt to prevent implementation of the directions of Supreme Court in Deepak Kumar vs. State of Haryana (supra) by breaking
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homogenous areas into pieces of less than 5 hectares in States of UP, Rajasthan and Haryana. Since the notification did not require EC for less than 5 hectares, this discretion of exemption of the mining blocks of less than 5 hectares was not appreciated by Tribunal. It was also held that categorisation of B2 category into areas 0 to 5 hectares and 5 to 25 hectares and thereafter, exemption of 0 to 5 hectares from the requirement of EIA/Public Consultation and dispensation of public hearing where lease area is upto 25 hectares, was not consistent with the directions issued by Supreme Court in Deepak Kumar vs. State of Haryana (supra) and spirit behind such direction.
124. In para 15 of the judgment in Satendra Pandey vs. MoEF&CC & Another (supra) , this Tribunal clearly said that mining area upto 05 and from 05 hectares to 25 hectares has been completely exempted from EIA and Public Consultation. These provisions are more minecentric rather than striving a balance between mining and environment especially with regard to Form-1M which needs to be made more elaborate incorporating environment related aspects.
125. Dispensation of Public Hearing was also seriously castigated and it is in this backdrop, Tribunal directed MoEF&CC to take appropriate steps to revise the procedure laid down in the amendment notification dated 15.01.2016 to make it consistent with the directions made in Satendra Pandey vs. MoEF&CC & Another (supra) and to bring in conformity with the letter and spirit of the directions given by Supreme Court in Deepak Kumar vs. State of Haryana (supra).
126. This judgment in Satyendra Pandey (Supra) was pronounced on 13.09.2018. Tribunal chose not to quash or struck down the amendment notification even partly but holding that the same is not in conformity with the Supreme Court’s judgment in Deepak Kumar vs. State of Haryana (supra), required the Ministry to make necessary changes so as to bring it in conformity with the letter and spirit with the directions passed by Supreme Court in Deepak Kumar vs. State of Haryana (supra) .
127. The effect is that notification dated 15.01.2016 so long as is not changed/revised/altered by MoEF&CC, continued to operate PAN India.
128. In Satendra Pandey vs. MoEF&CC & Another (supra) , this Tribunal also did not give any direction that henceforth the procedure
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laid down in the notification dated 15.01.2016 shall not be followed or DEIAA across the country shall cease to function or would not operate or would not grant any EC forthwith.
129. Probably, Tribunal had the intention that MoEF&CC would comply with the directions contained in Satendra Pandey vs. MoEF&CC & Another (supra) at an early date, therefore, without affecting the mining leases operating at the relevant time, Tribunal chose not to pass any such order creating a vacuum for the purpose. However, taking undue advantage of the situation, State of UP and State of Kerala issued letters directing that DEIAA shall continue to grant EC as per the amendment notification dated 15.01.2016.
130. For more than two months, MoEF&CC also did not act in the light of the directions given by this Tribunal in Satendra Pandey vs. MoEF&CC & Another (supra) and no changes were made in EIA 2006 as amended vide notification dated 15.01.2016.
131. Consequently, an Execution Application No. 55/2018 in OA 520/2016, Vikrant Tongad vs. Union of India was filed before Tribunal. For the first time, vide order dated 11.12.2018, Tribunal issued directions to MoEF&CC to comply with the judgment dated 13.09.2018 forthwith and submit a compliance report on or before 31.12.2018. Tribunal also said specifically that till fresh notification is issued by MoEF&CC, notification dated 15.01.2016 will not be acted upon.
132. Thus, any further action pursuant to the amendment notification dated 15.01.2016 was stopped by Tribunal vide order dated 11.12.2018.
133. The directions of State Governments that notification dated 15.01.2016 having not been stayed may be followed, was not consistent with the Tribunal’s judgment dated 13.09.2018 and the same was suspended till a fresh notification is issued by MoEF&CC.
134. The directions given vide order dated 11.12.2018 were applied/extended to all SEIAAs and State Governments.
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135. Consequently, on 12.12.2018, MoEF&CC issued an OM and communicated Tribunal’s judgment in Satendra Pandey vs. MoEF&CC & Another (supra) to all State Governments and statutory regulators with the direction to comply the same. In this backdrop of above orders, particularly, considering the order dated 13.09.2018 passed in Satendra Pandey vs. MoEF&CC & Another (supra) , whereby amendment notification dated 15.01.2016 was not set aside or quashed or struck down even partly or wholly, it is difficult to hold that if on and after 13.09.2018, across the country where DEIAAs were operating, if any EC was granted after 13.09.2018, the same would become per se illegal. The situation changed only on 11.12.2018 when in Execution Application 55/2018 (supra) , Tribunal restrained the respondents to act upon the amendment notification dated 15.01.2016 and thereby DEIAAs ceased to have any authority to grant EC thereafter.
136. The observations in Satendra Pandey vs. MoEF&CC & Another (supra) case were in respect to the protection of appraisal under EIA 2006 which was dispensed with in respect to the mining leases of small areas i.e., 0 to 5 hectares and 5 to 25 hectares though distinction was negated by Supreme Court in Deepak Kumar vs. State of Haryana (supra) case. Therefore, with regard to the appraisal of Environment Impact Assessment, Tribunal found that proper procedure was not being observed hence grant of EC particularly when DEIAAs did not contain experts for such appraisal, was not in accordance with the letters and spirit of the directions passed by Supreme Court in Deepak Kumar vs. State of Haryana (supra) but to read the said judgment to hold that the amendment notification dated 15.01.2016 became a nullity to some extent or partly, in our view, is something reading in the judgment which is not there. However, later a clear order has been passed on 11.12.2018 in Execution Application No. 55/2018 (supra) and, therefore, if any EC is granted by DEIAA PAN India after 11.12.2018, the same cannot be said to legal and will not hold good but ECs granted upto 11.12.2018 by DEIAA per se will not become illegal. However, to make ECs consistent with the provisions of EIA 2006 read with judgment of Supreme Court in Deepak Kumar vs. State of Haryana (supra) and Satendra Pandey vs. MoEF&CC & Another (supra) , it would require appraisal in accordance with the procedure prescribed in EIA 2006 as amended from to time from SEIAA of the concerned State/Union Territory and in the light of the result of such reappraisal, mining activities may or may not be allowed to continue.
137. The entire confusion and complication, in our view, has been created due to inaction/laxity shown by MoEF&CC by not acting in a
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reasonable manner within a reasonable time as per the directions given by this Tribunal in Satendra Pandey vs. MoEF&CC & Another (supra) .
138. Learned Counsel appearing for MoEF&CC contended that against the order passed by Tribunal in Satendra Pandey vs. MoEF&CC & Another (supra) , an Appeal was preferred before Supreme Court but could not dispute that there is no stay granted by Supreme Court and therefore, inaction on the part of MoEF&CC in not complying with the directions of Tribunal for a long time is a serious defiance and an attempt to permit mining activities to continue without proper appraisal by Competent Authority. We deprecate MoEF&CC in the strongest words for such conduct.
139. Some OMs have been issued by MoEF&CC without realizing that when statutory order has been issued in exercise of powers under Section 5 of EP Act, 1986 i.e., EIA 2006, its provisions need to be amended following the same procedure as was followed when EIA 2006 was made and by issuing executive orders in the form of OM, effect of statutory provisions cannot be controlled and regulated.
140. An incidental question to issue III is when ECs have been granted by DEIAAs upto 11.12.2018 and the same have not been appraised/re-appraised by SEIAA till date, whether mining activities by such mining lease holders would be illegal. We find that the fault is more on the part of MoEF&CC and statutory authorities who failed to take action consistent and in compliance with the directions given by this Tribunal in Satendra Pandey vs. MoEF&CC & Another (supra) . For the fault of State and its authorities, it would not be appropriate to penalize the mining lease holders for no fault of theirs in the entire exercise. Simultaneously, it is also true that without proper appraisal of Environment Impact Assessment of the mining leases by Competent Authority, if the mining is continued for long time, it is bound to cause serious damage to environment in various ways some of which have been observed by Supreme Court in Deepak Kumar vs. State of Haryana (supra).
141. In OA 26/2023(CZ), Rakesh Sharma vs. State of Rajasthan & Ors ., this Tribunal had an occasion to consider a similar controversy. Therein, EC was granted by DEIAA on 26.06.2016 and it was argued that since amendment notification dated 15.01.2016 was held to be illegal and not consistent with Supreme Court’s directions given in Deepak Kumar vs. State of Haryana (supra),
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therefore, the mining activities carried out pursuant to above EC were illegal. It was held that so long as the mining was carried out complying with all the conditions mentioned in EC, the same cannot be said to be illegal merely because EC was granted by DEIAA on 25.06.2016. Tribunal further said that the issue of reappraisal/appraisal by SEIAA cannot remain pending indefinitely and it is not necessary for SEIAA to keep the matter pending for months together in every case. Decision must be taken by concerned SEIAA in a reasonable period and therein, Tribunal directed SEIAA Rajasthan to complete the steps for appraisal/re-appraisal of ECs of proponents expeditiously but in any case within three months.
142. Therefore, a reasonable view need to be taken in this matter. To meet the ends of justice and also to implement the environmental laws and applying the Precautionary Principle and Sustainable Development, we are of the view that mining leases continuing pursuant to ECs granted by DEIAAs upto 11.12.2018, must be appraised/re-appraised by concerned SEIAAs within three months from this judgment. Thereafter, if no decision is taken in favour of mining lease holders or no appraisal is made, the mining by lease holders who have been granted ECs by DEIAA shall not be allowed to operate. Further in all those cases where ECs have been granted by DEIAAs on and after 12.12.2018, such mining leases shall not be allowed to operate forthwith since such ECs are illegal. In such cases appraisal has to be made by concerned SEIAA and ECs are to be granted in accordance with the provisions of EIA 2006 as amended from time to time.
143. In order to avoid any doubt, we also make it clear that MoEF&CC would also make necessary rectifications/corrections in OMs already issued including OM dated 28.04.2023 so as to cover ECs granted by DEIAA from 15.01.2016 to 11.12.2018 instead of confining it to 13.09.2018 for appraisal/re-appraisal by SEIAA.
144. We answer issue III accordingly.”
Environment, Forest and Climate Change (supra) , the decision of SEIAA declaring EC dated 26.11.2018 issued by DEIAA Dausa as illegal, cannot be sustained.
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SUDHIR AGARWAL, JUDICIAL MEMBER
DR. AFROZ AHMAD, EXPERT MEMBER
August 09, 2024 Appeal No.22/2024 R
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2 issues framed by the court
Whether the State Level Environment Impact Assessment Authority order declaring the Environmental Clearance granted by DEIAA as illegal and null and void is sustainable in light of Tribunal judgment i
Whether Environmental Clearances granted by DEIAA after the Tribunal deadline require immediate halting or can be subject to reappraisal by SEIAA.
Colour shows how this judgement treated each authority
Satendra Pandey vs. Ministry of Environment, Forest and Climate ChangeReferred¶25
OA 186/2016, Satendra Pandey vs. Ministry of Environment, Forest and Climate Change & Another
Deepak Kumar vs. State of HaryanaReferred¶27
Deepak Kumar vs. State of Haryana, (2012) 4 SCC 629 · Who else cites this
Satendra Pandey vs. MoEF&CCReferred¶28
Satendra Pandey vs. MoEF&CC & Another (supra)
Jayant Kumar vs. Ministry of Environment, Forest and Climate ChangeFollowed¶45
OA 142/2022, Jayant Kumar vs. Ministry of Environment, Forest and Climate Change & Ors.
Rakesh Sharma vs. State of RajasthanReferred¶74
OA 26/2023(CZ), Rakesh Sharma vs. State of Rajasthan & Ors
2 provisions across 2 enactments
M/s. Rahul Paharia Mine
Union of India
State of Rajasthan
State Level Environment Impact Assessment Authority
State Expert Appraisal Committee, Rajasthan
Sudhir Agarwal
Afroz Ahmad
As recorded by the court registry
An appeal before a tribunal against an order of a statutory authority.
Judgements on the same questions, provisions and authorities, from every court
