Allowed

K S Thanikachalam v. State Environment Impact Assessment Authority Tamilnadu

NGT6 Feb 2024Appeal No. 35/2023

Case brief

AI extract

What is this about?

The NGT Southern Zone allowed the appellant's appeal, setting aside the SEIAA Tamil Nadu's rejection of an environmental clearance for a black granite quarry. The court found the rejection flawed due to procedural lapses, failure to forward new representations to the Expert Appraisal Committee, and lack of independent inquiry. The case was remanded for fresh consideration with a personal hearing.

What did the court decide?

The rejection order was set aside and the matter remitted to SEIAA Tamil Nadu to reconsider the proposal afresh, affording a personal hearing within four weeks.

K S Thanikachalam vs State Environment Impact… — Constitutional and Fundamental Rights | NGT (2024)

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Item No.2:-

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BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI

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Dated this the 06^th day of February, 2024.

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(Through Video Conference)

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Appeal No.35 of 2023 (SZ)

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IN THE MATTER OF

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K.S. Thanikachalam
No.77, Thomsonpet,
Kauveripattinam,
Krishnagiri Taluk,
Krishnagiri District – 635 112.
…Appellant(s)
Versus
1) State Environment Impact Assessment Authority
Tamil Nadu
Through the Member Secretary
3 rd Floor, Panagal Maaligai,
No.1, Jeenis Road, Saidapet,
Chennai – 600 015.
2) State Level Expert Appraisal Committee
Through the Member Secretary
3 rd Floor, Panagal Maaligai,
No.1, Jeenis Road, Saidapet,
Chennai – 600 015.
...Respondent(s)
For Appellant (s): M/s. E.K. Kumaresan, G. Prabhu and
G. Vignesh.
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1 & R2.
Judgment Reserved on: 29 th January, 2024.

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CORAM :

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HON’BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER HON’BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER

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Page 1 of 10

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JUDGEMENT

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Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member.

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1. The above appeal is directed against the impugned rejection of the appellant‟s proposal for the proposed activity of black granite quarry over an extent of 1.00.0 Hectare in S.F. No.99/3A1 (Part) at Nammandahalli Village, Palacode Taluk, Dharmapuri District by the 1^st Respondent/State Environmental Impact Assessment Authority – Tamil Nadu (hereinafter referred to as ‘SEIAA – Tamil Nadu’ ) vide Letter No.SEIAATN/F.No.7457/2022 dated 23.06.2023.

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2. The Appellant/ Project Proponent already got a quarry lease granted vide G.O. (3D) No.63 Industries (MME-2) Department dated 09.12.2010, for a period of 20 years which is valid up to 13.01.2031, for the proposed activity of black granite quarry. The appellant made an online application on 16.12.2019 under the „B2‟ Category of mining of minerals for the black granite quarry.

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3. According to the appellant, the first scheme of quarrying for a period between 2016-17 and 2020-21 was approved by the Department of Geology and Mining dated 12.09.2018. The first scheme of quarrying is valid till 13.01.2021 and the second scheme of quarrying is due from 14.01.2021 onwards. The appellant also had prepared the second scheme of quarrying along with a Progressive Quarry Closure Plan and submitted it to the Director – Department of Geology and Mining for a period between 2021-22 and 2025-26. The same was returned due to belated submissions. Thereafter, the revised scheme for the mining period from 2023-24 to 202526 (3 financial years) was prepared and submitted for approval before the Department of Geology and Mining. After thorough scrutiny, the Department of Geology and Mining accorded the approval to the appellant on 27.02.2023.

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4. While so, the proposal of the appellant for Environmental Clearance was placed before the 2^nd Respondent / State Expert Appraisal Committee – Tamil Nadu (hereinafter

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referred to as ‘SEAC – Tamil Nadu’ ) , in its 226^th Meeting held on 17.08.2021. Based on the documents and the presentation, the SEAC – Tamil Nadu decided to recommend the project for grant of Environmental Clearance subject to specific conditions mentioned therein. Thereafter, the subject matter was placed before the SEIAA – Tamil Nadu in its 463^rd Meeting held on 24.09.2021 for the consideration of the recommendation made by the SEAC – Tamil Nadu. However, the SEIAA – Tamil Nadu had observed that the validity of the approved mining scheme submitted by the Project Proponent for the period from 2018-19 to 2020-21 expired on 11.09.2021 and as on date, there was no valid mining scheme. Additionally, in the VAO‟s letter dated 19.08.2021, it is stated that there are some houses within a 300 Meter radius of the proposed quarry though they are unapproved.

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5. The SEIAA – Tamil Nadu referred the proposal back to the SEAC – Tamil Nadu for reappraisal. The SEAC – Tamil Nadu, in its 241^st Meeting, considered the proposal again and found that as per the letter of the VAO, unapproved habitations were located within a 300 Meter radius from the periphery of the proposed quarry. In view of the unapproved habitations, the SEAC – Tamil Nadu did not recommend for grant of Environmental Clearance which is totally contra to their earlier recommendation.

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6. The subject matter was later placed before the SEIAA – Tamil Nadu in its 484^th Meeting held on 29.01.2022 and 31.01.2022, wherein the authority decided to request the Member Secretary to communicate the Minutes of the SEAC – Tamil Nadu to the Project Proponent.

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7. In the meanwhile, the appellant had also sent a representation dated 28.02.2023 and submitted additional details along with a detailed reply intimating that the second scheme of mining was granted for a period from 14.01.2023 to 13.01.2026. The said representation of the appellant was considered by the SEIAA – Tamil Nadu in its 619^th Meeting held on 18.05.2023, in which, it was decided to reject the proposal with the same reasons cited by the SEAC – Tamil Nadu in its

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241^st Meeting held on 03.11.2021. The said rejection order dated 23.06.2023 was communicated to the appellant on 28.06.2023. Aggrieved by the above rejection order, the appellant has preferred the above appeal.

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8. In response , the 1^st Respondent/SEIAA – Tamil Nadu filed its counter , wherein it was admitted that originally the SEAC – Tamil Nadu had recommended the project proposal to the SEIAA – Tamil Nadu for grant of Environmental Clearance subject to the conditions stipulated therein. Subsequently, the subject was placed before the authority in its 463^rd Meeting held on 24.09.2021. In the said meeting, it was noted by the authority that the approved mining scheme submitted by the Project Proponent for the period 2018-19 and 2020-21 expired on 11.09.2021 and as on date, there was no valid mining scheme. Secondly, in the VAO‟s letter submitted by the Project Proponent dated 19.08.2021, it is mentioned that houses are situated within a 300 Meter radius from the proposed quarry though they were unapproved. In view of the above, the authority decided to refer back the proposal to the SEAC – Tamil Nadu. The proposal was again placed for appraisal in the 241^st Meeting of the SEAC – Tamil Nadu held on 03.11.2021 and the SEAC – Tamil Nadu once again quoting the same reasons that the mining lease expired on 11.09.2021 and there are habitations within 300 Meters, refused to recommend for grant of Environmental Clearance. Thereafter, the SEIAA – Tamil Nadu had taken up the subject in its 484^th Meeting held on 29.01.2022 and 31.01.2022 and after detailed discussions, it was decided to request the Member Secretary to communicate the Minutes of the SEAC – Tamil Nadu to the Project Proponent. In the meanwhile, the appellant herein made a representation dated 28.02.2023 for reconsideration of the decision. The said proposal was placed in the 619^th Meeting held on 18.05.2023 and it was decided by the SEIAA – Tamil Nadu to reject the representation based on the decision taken by the SEAC – Tamil Nadu on 03.11.2021. Hence, the file was closed. As everything was done only as per the procedure, it was stated that the proposal does not warrant reconsideration.

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9. From the above pleadings, the issue that arises for consideration is

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Whether the impugned rejection order dated 23.06.2023 is liable to be set aside?

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10. Heard the learned counsel for the appellant Mr. G. Vignesh and the learned counsel Mr. G.M. Syed Nurullah Sheriff for the SEIAA/SEAC – Tamil Nadu.

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11. As mentioned above, the Environmental Clearance was applied for the proposed activity of a black granite quarry in Nammandahalli Village, Palacode Taluk, Dharmapuri District.

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12. The appellant is a lessee and in possession of the property pursuant to the quarry lease granted vide G.O. (3D) No.63 Industries (MME-2) Department dated 09.12.2010 for a period of 20 years which is valid up to 13.01.2031 for the purpose of black granite quarrying. The mining plan was approved for the period 2016 to 2021 on 12.09.2018. This is the first scheme of mining. When the mining plan was subsisting, the appellant had applied for Environmental Clearance before the SEIAA – Tamil Nadu on 16.12.2019 under the „B2‟ Category vide Proposal No.SIA/TN/MIN/131794/2019 and furnished all the requisite documents viz., Form – I, Form – IM, Quarrying and Progressive Quarry Closure Plan, Mining Scheme, Mining Plan approved by the Department of Geology and Mining, etc.

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13. Admittedly, the first scheme of quarrying was valid up to 13.01.2021 and the second scheme was due from 14.01.2021. The appellant also had prepared a second scheme of quarrying along with the Progressive Closure Plan. However, the application for Environmental Clearance was placed before the SEAC – Tamil Nadu for their appraisal only on 17.08.2021. Based on the presentation and documents furnished by the appellant, the SEAC – Tamil Nadu decided to recommend for grant of Environmental Clearance to the SEIAA – Tamil Nadu subject to the conditions mentioned therein.

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14. As per the procedure, the SEIAA – Tamil Nadu also had taken up the proposal for consideration in its 463^rd Meeting held on 24.09.2021. The SEIAA – Tamil Nadu, while considering the proposal, noticed that the approved mining scheme submitted by the Project Proponent expired on 11.09.2021 and there was no valid mining scheme on the date of consideration of the proposal. Besides, the VAO Letter dated 19.08.2021 submitted by the Project Proponent himself stated that there are some houses within a 300 Meter radius from the proposed quarry though they are unapproved.

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15. In view of the above observations, the SEIAA – Tamil Nadu referred the matter back to the SEAC – Tamil Nadu for reappraisal and for furnishing further recommendations to the SEIAA – Tamil Nadu for taking the next course of action. The SEAC – Tamil Nadu also considered the same in its 241^st Meeting held on 03.11.2021. The Members of the SEAC – Tamil Nadu also found that as per the letter furnished by the VAO, there are unapproved habitations located within 300 Meter radius from the periphery of the proposed quarry and the SEAC – Tamil Nadu held that in view of the safety and health, the project cannot be recommended for grant of Environmental Clearance. Thereafter, the subject matter was placed before the SEIAA – Tamil Nadu in its 484^th Meeting held on 29.01.2022 and 31.01.2022 and decided to communicate the Minutes of the SEAC – Tamil Nadu to the Project Proponent.

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16. From the perusal of the record, it appears that though the meeting was held on 31.01.2022, the same was not communicated to the Project Proponent informing the rejection of the proposal. In the meanwhile, the Project Proponent had obtained the second scheme of mining for a period from 14.01.2023 to 13.01.2026. Hence, he made a representation on 28.02.2023 to the SEIAA – Tamil Nadu along with the second scheme of mining. The SEIAA – Tamil Nadu, instead of referring it back to the SEAC – Tamil Nadu, had considered itself in the 619^th Meeting held on 18.05.2023 and recorded as follows:-

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“Now, the PP has made a representation to SEIAA vide Lr. Dt. 28.02.2023 for reconsideration of the decision. The Authority has gone through the reply submitted by the

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PP. As decided by SEAC in the 241^st meeting of the SEAC held on 03.11.2021, this representation has no justification/merits for reconsideration.

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In view of the above, SEIAA accepts the decision of the SEAC and decided to request the Member Secretary to grant rejection letter to the proponent as per the 241^st Meeting of SEAC held on 03.11.2021. Hence, this file may be closed and recorded.”

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17. A perusal of the above Minutes makes it clear that though the SEIAA – Tamil Nadu had decided to communicate the Minutes of SEAC – Tamil Nadu to the Project Proponent, resorted that in the event a representation being received from the Project Proponent, the same be forwarded to the SEAC – Tamil Nadu for further course of action. If that is so, when the Project Proponent had made a representation dated 28.02.2023 along with the second scheme of mining, it would be appropriate for the SEIAA – Tamil Nadu to forward it to the SEAC – Tamil Nadu for further course of action. Instead of doing so, the authority itself has taken up the matter for consideration and recorded the same decision which was taken by the SEAC on 03.11.2021 and the SEIAA – Tamil Nadu accepted the decision of the SEAC – Tamil Nadu which was taken on 03.11.2021 for considering the representation of the project proponent which was made along with the second scheme of mining.

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18. In this regard, the EIA Notification, 2006, in its Stage – IV ‘Appraisal’ , specifically states that the appraisal means detailed scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee of the application and other documents like Final EIA Report, etc. The appraisal shall be made by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned in a transparent manner in a proceeding to which the applicant shall be invited for furnishing necessary clarifications in person or through an authorized representative. On the conclusion of this proceeding, the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall make categorical recommendations to the regulatory authority concerned either for grant of prior environmental clearance or rejection of the application for prior environmental clearance, together with reasons for the same.

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19. In the instant case, in the 484^th Meeting of the SEIAA – Tamil Nadu held on 31.01.2022, though it was decided to reject the proposal, the same was not communicated to the Project Proponent. But it was held that in the event of representation being received from the Project Proponent, the same may be forwarded for further course of action.

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20. Admittedly, the Project Proponent had made a representation to the SEIAA – Tamil Nadu on 28.02.2023 for reconsideration of the decision. The said representation ought to have been forwarded by the SEIAA – Tamil Nadu which was not done. In the event the SEIAA – Tamil Nadu had forwarded the representation made by the Project Proponent along with the second scheme of mining, the SEAC – Tamil Nadu ought to have considered the representation in a transparent manner, to which, the appellant should have been invited for furnishing necessary clarification in person or through the representative. Only on conclusion of this proceeding, the SEAC concerned should have recommended for grant or rejection of prior Environmental Clearance.

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21. So, the EIA Notification, 2006, specifically mandates that it is only the SEAC which has got the authority to proceed with the recommendation and obtain any clarification from the Project Proponent. The SEIAA which is a regulatory authority concerned can issue the Environmental Clearance based on the recommendations of the SEAC and grant prior Environmental Clearance on stipulated terms and conditions or reject the application by furnishing the reasons therefor.

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22. In the instant case, the SEIAA – Tamil Nadu failed to forward the representation made by the Project Proponent to the SEAC – Tamil Nadu and the SEIAA – Tamil Nadu had accepted the 241^st Minutes of the SEAC – Tamil Nadu held on 03.11.2021. When the project proponent made a subsequent representation that the mining scheme was granted subsequent to the 241^st Meeting, the SEIAA – Tamil Nadu ought not to have followed the earlier minutes of the meeting of the SEAC – Tamil Nadu. Hence, the rejection order impugned is liable to be set aside not only for

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the procedural lapse but also for not furnishing the reasons for rejection on merits. There is also no reason furnished by the SEIAA – Tamil Nadu for the delay in considering and rejecting the Environmental Clearance proposal. The appellant, who applied for Environmental Clearance in the year 2019, is unable to get the same till today.

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23. The reliance was placed on the VAO‟s Letter dated 19.08.2021, which cited unapproved habitation situated within a 300 Meter radius, failed to taken into consideration Rule 36 (1-A) (a) of the Tamil Nadu Minor Mineral Concession Rules, 1959 and the said rule is usefully extracted below:-

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“ 36. General restrictions in respect of quarrying operations :-

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(1-A) (a) : No lease shall be granted for quarrying stone within 300 meters (three hundred meters) from any inhabited site:

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Provided that the exiting quarries which are subsisting under current leases shall be entitled for continuance till the expiry of the lease period. The lessees whose quarries lie within a radius of 300 meters from the inhabited site shall undertake blasting operations only after getting permission of the Director of Mines Safety, Oorgaum. Explanation:- „Inhabited site‟ shall mean a village site or town site or a house site as referred to in the revenue records or a house site or layout approved by a Local Body or Town or Country or Metropolitan Planning Authority, where the said Body or Authority is created under a statute and empowered to approve such an area as a house site or layout area.”

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24. The appellant also placed his reliance on Rule 18 (3) of the Granite Conservation and Development Rules, 1999 to stress that the application is made well within the time stipulated and the said rule is extracted below:-

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“The scheme of mining shall be submitted to the State Government or any person authorized in this behalf by that Government at least one hundred twenty days before the expiry of the five years' period, for which it was approved on the last occasion.”

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25. The above discussion would go to show that the SEIAA – Tamil Nadu has neither followed the procedure nor applied its mind independently before passing the impugned rejection order.

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26. The delay on the part of the authorities in either issuing or considering the application of the Project Proponent cannot be attributed to the Project Proponent for rejecting the necessary Environmental Clearance. In such view of the matter, it would be appropriate to set aside the order of rejection dated 23.06.2023 and direct the SEIAA – Tamil Nadu to reconsider the proposal afresh by considering the documents available and also affording an opportunity of personal hearing to the Project Proponent within a period of 4 (Four) weeks from the date of this order.

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27. In the result,

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(i) The appeal [Appeal No.35 of 2023 (SZ)] is allowed.

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(ii) The impugned rejection order passed by the 1^st Respondent/SEIAA – Tamil Nadu vide Letter No.SEIAA-TN/F.No.7457/2022 dated 23.06.2023 is set aside and remitted back to the SEIAA – Tamil Nadu for fresh consideration.

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(iii) The SEIAA – Tamil Nadu is directed to reconsider the appellant‟s proposal bearing Proposal No.SIA/TN/MIN/131794/2019 dated 16.12.2019 afresh by affording an opportunity of personal hearing to the appellant within a period of 4 (Four) weeks from the date of this order and pass appropriate orders.

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Sd/-

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Smt. Justice Pushpa Sathyanarayana, JM

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Sd/-

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Dr. Satyagopal Korlapati, EM

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Internet – Yes/No

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All India NGT Reporter – Yes/No